                                                                           FILED
                              NOT FOR PUBLICATION                           NOV 29 2012

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



RICHARD R. LANE,                                 No. 11-16268

                Plaintiff - Appellant,           D.C. No. 5:10-cv-05779-HRL

  v.
                                                 MEMORANDUM *
ANNE STAUSBOLL, CEO; ROB
FECKNER, President of the Board of
Administration of the California Public
Employees’ Retirement System
(CalPERS),

                Defendants - Appellees.



                     Appeal from the United States District Court
                       for the Northern District of California
                    Howard R. Lloyd, Magistrate Judge, Presiding **

                            Submitted November 13, 2012 ***

Before:         CANBY, TROTT, and W. FLETCHER, Circuit Judges.


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).

       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Richard R. Lane appeals pro se from the district court’s judgment dismissing

his 42 U.S.C. § 1983 action alleging constitutional violations in connection with

the calculation of his California Public Employees’ Retirement System pension

benefit. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the

district court’s dismissal of Lane’s action as barred by the doctrine of res judicata,

Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir. 2007), and we affirm.

      The district court properly dismissed Lane’s action on the basis of res

judicata because Lane had a final adjudication on the merits of his pension

calculation in California state court. See Migra v. Warren City Sch. Dist. Bd. of

Educ., 465 U.S. 75, 81 (1984) (preclusive effect of state court judgment is

determined by the law of the state); Eichman v. Fotomat Corp., 197 Cal Rptr. 612,

614 (Ct. App. 1983) (under California law, res judicata bars second action “if two

actions involve the same injury to the plaintiff and the same wrong by the

defendant . . . even if in the second suit the plaintiff pleads different theories of

recovery”).

      The district court did not abuse its discretion by declining to exercise

supplemental jurisdiction over Lane’s state law claims after dismissing his federal

claims without leave to amend. See 28 U.S.C. § 1367(c)(3). We construe the

dismissal of the state law claims to be without prejudice. See Gini v. Las Vegas


                                            2                                      11-16268
Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994).

      Lane’s remaining arguments about the merits of his claims are unpersuasive.

      Lane’s contention that defendants’ filings constituted fraud on the court is

not supported by the record.

      AFFIRMED.




                                          3                                   11-16268
