Bailey v. Nevada Department of Corrections , 363 F. App'x 458 ( 2010 )

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NOT FOR PUBLICATION JAN 25 2010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.
EN/Research 2 08-15291