
    Rodney FRAZIER, Plaintiff-Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS; et al., Defendants-Appellees.
    No. 02-15625.
    D.C. No. CV-00-00022-LKK(JFM).
    United States Court of Appeals, Ninth Circuit.
    Submitted Jan. 13, 2003.
    
    Decided Jan. 21, 2003.
    Before BEEZER, KLEINFELD, and PAEZ, Circuit Judges.
    
      
      This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, Frazier’s request for oral argument is denied.
    
   MEMORANDUM

Rodney Frazier, a California state prisoner, appeals pro se the district court’s judgment in favor of the prison and prison physicians in his 42 U.S.C. § 1983 action alleging deliberate indifference to his medical needs under the Eighth Amendment and state tort claims. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir.1994) (per curiam), and we affirm.

The district court properly granted summary judgment in favor of the prison because Frazier’s complaint and deposition testimony show that he failed to exhaust administrative remedies. See Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Although the district court used summary judgment language, it properly dismissed the action without prejudice. Cf. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.2003) (holding that the proper remedy for failure to exhaust administrative remedies is a dismissal of the claim without prejudice).

Frazier’s contention that Booth v. Churner does not apply retroactively to his action lacks merit. See Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 96, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (“[A] rule of federal law, once announced and applied to the parties to the controversy, must be given full retroactive effect by all courts adjudicating federal law”).

Frazier’s motion to introduce new findings, filed on September 25, 2002, is denied.

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     