Holestine

MEMORANDUM **

California state prisoner Ernest Kelly Holestine appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations of his constitutional rights. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo both dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) and summary judgment, Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.1994) (per curiam), and we affirm.

The district court properly dismissed Holestine’s due process and living conditions claims for failure to exhaust because Holestine did not pursue the claims through the final level of administrative review. See Booth v. Chumer, 532 U.S. 731, 740 , 121 S.Ct. 1819 , 149 L.Ed.2d 958 (2001) (holding that prisoner must exhaust administrative remedies prior to bringing suit in federal court, even where complaint seeks only money damages). We construe the district court’s order dismissing these claims to be without prejudice. See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003).

The district court properly granted summary judgment on Holestine’s deliberate indifference claim because, at most Holes-tine demonstrated that he disagreed with the…