
    Robert Alan BAILEY, Plaintiff-Appellant, v. NEVADA DEPARTMENT OF CORRECTIONS; et al., Defendants-Appellees.
    No. 08-15291.
    United States Court of Appeals, Ninth Circuit.
    Submitted Jan. 11, 2010.
    
    Filed Jan. 25, 2010.
    Robert Alan Bailey, Indian Springs, NV, pro se.
    Robin L. Chase, Esquire, Leeann Phou-thavongsay, Esquire, Deputy Attorney General, Office of the Attorney General, Las Vegas, NV, for Defendants-Appellees.
    Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

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 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. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     