                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 25 2010

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




                             FOR THE NINTH CIRCUIT



 ROBERT ALAN BAILEY,                             No. 08-15291

               Plaintiff - Appellant,            D.C. No. CV-07-01017-PMP/LRL

   v.
                                                 MEMORANDUM *
 NEVADA DEPARTMENT OF
 CORRECTIONS; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                              for the District of Nevada
                       Philip M. Pro, District Judge, Presiding

                             Submitted January 11, 2010 **


Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Nevada state prisoner Robert Alan Bailey appeals pro se from the district

court’s judgment in his 42 U.S.C. § 1983 action alleging that prison officials failed

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

EN/Research
to ensure that he was provided with an adequate gluten-free diet. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to

exhaust administrative remedies, O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056,

1059 (9th Cir. 2007), and we affirm.

       The district court properly dismissed Bailey’s action because he failed to

exhaust prison grievance procedures prior to commencing his action against

defendants. See id. at 1059-60 (concluding that the Prison Litigation Reform Act

requires administrative exhaustion of claims under 42 U.S.C. § 1983, the

Americans with Disabilities Act, and the Rehabilitation Act).

       We construe the dismissal as without prejudice. See id. at 1059 (“If the

district court concludes that the prisoner has not exhausted nonjudicial remedies,

the proper remedy is dismissal of the claim without prejudice.” (citation omitted)).

       AFFIRMED.




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