Onofre Serrano v. Prentice Hill ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ONOFRE TOMMY SERRANO, No. 14-56252
Plaintiff-Appellant, D.C. No. 2:12-cv-10956-VBF-PLA
v.
MEMORANDUM*
PRENTICE HILL, Parole Agent,
individual; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Former California pre-trial detainee Onofre Tommy Serrano appeals pro se
from the district court’s judgment in his 42 U.S.C. § 1983 action arising from a
parole hold. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
*
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).
Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (legal rulings on
exhaustion); Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004)
(absolute immunity). We affirm in part, vacate in part, and remand.
The district court properly dismissed Serrano’s claims against defendant
Lam as barred by absolute quasi-judicial immunity because parole board officials
are entitled to immunity for decisions to grant, deny or revoke parole. See Swift v.
California, 384 F.3d 1184, 1189 (9th Cir. 2004).
The district court properly granted summary judgment on Serrano’s claims
against defendants Hall, Adkins, Hill, and Abma because Serrano failed to raise a
genuine dispute of material fact as to whether he properly exhausted his available
administrative remedies. See Albino, 747 F.3d at 1171-72 (setting forth respective
burdens where a defendant argues that a prisoner failed to exhaust under the Prison
Litigation Reform Act). However, dismissal of these claims should have been
without prejudice. See Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (“[A]
district court must dismiss a case without prejudice when there is no presuit
exhaustion.” (citation and internal quotation marks omitted)).
Accordingly, we vacate the judgment to the extent that it dismissed with
prejudice Serrano’s claims against defendants Hall, Adkins, Hill, and Abma, and
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remand for entry of dismissal without prejudice as to these claims.
The district court did not abuse its discretion in declining to exercise
supplemental jurisdiction over Serrano’s state law claims after dismissing his
federal claims. See Ove v. Gwinn, 264 F.3d 817, 821, 826 (9th Cir. 2001) (setting
forth standard of review; “[a] court may decline to exercise supplemental
jurisdiction over related state-law claims once it has dismissed all claims over
which it has original jurisdiction” (citation and internal quotation marks omitted)).
However, the state law claims should have been dismissed without prejudice. See
Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994) (“When
. . . the court dismisses the federal claim leaving only state claims for resolution,
the court should decline jurisdiction over the state claims and dismiss them without
prejudice.” (citation and internal quotation marks omitted; alteration in original)).
Accordingly, we vacate the judgment to the extent that it dismissed with
prejudice Serrano’s state claim laws and remand for entry of dismissal without
prejudice as to these claims based on the district court’s exercise of its discretion to
decline jurisdiction over the state law claims.
We do not consider documents not filed with the district court. See United
States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not
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presented to the district court are not part of the record on appeal.”). Thus,
defendants’ motion to strike, filed on October 2, 2015, is granted.
We reject as unsupported by the record Serrano’s contention that he did not
receive sufficient notice of the requirements to oppose defendants’ motion to
dismiss for failure to exhaust administrative remedies.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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