dissents.

MEMORANDUM **

California state prisoner Daniel Dean Sheets appeals pro se from the district court’s judgment dismissing, without prejudice, his 42 U.S.C. § 1983 civil rights action for failure to exhaust administrative remedies. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Vaden v. Summerhill, 449 F.3d 1047, 1049 (9th Cir. 2006), and we affirm.

The district court did not err when it dismissed the action because Sheets did not avail himself of the administrative appeal process prior to filing his complaint. See McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (holding that exhaustion under 42 U.S.C. § 1997e(a) must occur prior to the commencement of the action).

AFFIRMED.