                             NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                        MAR 21 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



 CHARLES DAVILA,                                   No. 16-16525

                   Plaintiff-Appellant,            D.C. No. 15-cv-00094-LJO-EPG

   v.
                                                   MEMORANDUM*
 DAVID G. SMITH, M.D.,

                   Defendant-Appellee.

                     Appeal from the United States District Court
                        for the Eastern District of California
                     Lawrence J. O’Neill, Chief Judge, Presiding

                              Submitted March 8, 2017**

Before:       LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

        California state prisoner Charles Davila appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 and Americans with Disabilities

Act (“ADA”) action alleging deliberate indifference to his serious medical needs

and disability discrimination. We have jurisdiction under 28 U.S.C. § 1291. We


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo the district court’s dismissal under 28 U.S.C. § 1915A. Resnick v.

Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm in part, vacate in part, and

remand.

      The district court properly dismissed Davila’s deliberate indifference claim

because Davila failed to allege facts sufficient to show that Smith was deliberately

indifferent to his medical issues. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th

Cir. 2010) (although pro se pleadings are liberally construed, a plaintiff must still

present factual allegations sufficient to state a plausible claim for relief); Toguchi

v. Chung, 391 F.3d 1051, 1057-60 (9th Cir. 2004) (deliberate indifference is a high

legal standard; medical malpractice, negligence, or a difference of opinion

concerning the course of treatment does not amount to deliberate indifference).

      The district court properly dismissed Davila’s disability discrimination claim

because Davila failed to allege facts sufficient to show that Smith discriminated

against him because of a disability. See Simmons v. Navajo County, 609 F.3d

1011, 1022 (9th Cir. 2010) (“The ADA prohibits discrimination because of

disability, not inadequate treatment for disability.”).

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

supplemental jurisdiction over Davila’s state law claims after dismissing the

federal claims. See 28 U.S.C. § 1367(c)(3); Tritchler v. County of Lake, 358 F.3d

1150, 1153 (9th Cir. 2004) (standard of review). However, the state law claims


                                           2                                     16-16525
should have been dismissed without prejudice. See Gini v. Las Vegas Metro.

Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994) (dismissal based on declining

supplemental jurisdiction should be without prejudice). Accordingly, we vacate

the judgment to the extent it dismisses Davila’s state law claims with prejudice and

remand for the sole purpose of dismissing the state law claims without prejudice.

      AFFIRMED in part, VACATED in part, and REMANDED.




                                         3                                   16-16525
