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, *682must 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.