Avon DAVIES, Plaintiff-Appellant, v. GREENOUGH, Dr.; et al., Defendants-Appellees, 42 F. App'x 998

MEMORANDUM California state prisoner Avon Davies appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action, which alleged deliberate indifference to serious medical needs in violation of the Eighth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the dismissal, Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir.1997), and we affirm.

Davies contends that the district court erred by dismissing his action for failure to exhaust administrative remedies because at the time he filed suit the only remaining remedy he sought was not available under the administrative process. Davies’ contention is without merit because exhaustion is mandated “regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 740, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Accordingly, the district court properly dismissed Davies’ action without prejudice.

We reject Davies’ contention that the exhaustion requirement contained in 42 U.S.C. § 1997e(

a) is unconstitutional. Davies’ remaining contentions lack merit. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.