1 - OPINION & ORDER

 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

 

CHRISTOPHER LEE BARNES, 

 

Plaintiff, 

Case No. 2:13-cv-00714 

OPINION & ORDER 

 v. 

 

DR. LITANO, 

 Defendant. 

 

Christopher Lee Barnes 

#11865762 

SNAKE RIVER CORRECTIONAL INSTITUTION 

777 Stanton Blvd 

Ontario, OR 97914 

 Pro se Plaintiff 

Robert E. Sullivan 

OREGON DEPARTMENT OF JUSTICE 

Trial Division 

1162 Court Street NE 

Salem, OR 97301 

Attorney for Defendant 

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2 - OPINION & ORDER

HERNANDEZ, District Judge: 

Christopher Lee Barnes, who is currently in custody at Snake River Correction Institution 

(“SRCI”), brings this action pro se against Dr. Litano, the “Head Dentist for [SRCI]” under 42 

U.S.C. § 1983 (“§ 1983”).1 Compl., pp. 3-4. Plaintiff alleges Dr. Litano violated his First, Fifth, 

Eighth, and Fourteenth Amendment rights for “refusing to treat [Plaintiff] for a cross Bite [sic] 

issue” which Plaintiff alleges “is causing [his] teeth to Grind [sic] & Chip [sic] away . . . .” Id., 

p. 4. Plaintiff alleges “Dr. Litano . . . will only Treat [sic] [Plaintiff] in two months only [sic] if 

[Plaintiff’s] Dental Hygiene [sic] is up to [Dr. Litano’s] standards by then.” Id. Plaintiff seeks 

damages of $8.5 million and an order immediately releasing him from prison. Id., p. 6. 

Now before me is Defendant’s motion to dismiss (dkt. #17) for failure to state a claim 

under Rule 12(b)(6) of the Federal Rules of Civil Procedure and failure to exhaust administrative 

remedies under the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1977E(a). 

Plaintiff did not file a response to Defendant’s motion. For the reasons below, Defendant’s 

motion to dismiss (dkt. #17) is GRANTED. 

STANDARD 

 In considering a Rule 12(b)(6) motion, the court must “accept as true all of the factual 

allegations contained in the complaint” and may dismiss the case “only where there is no 

cognizable legal theory” or there is an absence of “sufficient factual matter to state a facially 

plausible claim to relief.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted); Shroyer 

v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. 

Iqbal, 556 U.S. 662, 677-78 (2009)). A claim has facial plausibility when a plaintiff “pleads 

factual content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). The facts alleged must 

 

1

 The parties do not provide, and the record does not show, Dr. Litano’s full name. 

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3 - OPINION & ORDER

demonstrate “more than labels and conclusions, and a formulaic recitation of a cause of action’s 

elements will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare 

recitals of the elements of a cause of action, supported by mere conclusory statements, do not 

suffice.” Iqbal, 556 U.S. at 678 (citation omitted). “The plausibility standard is not akin to a 

probability requirement, but it asks for more than a sheer possibility that a defendant has acted 

unlawfully. . . . Where a complaint pleads facts that are merely consistent with a defendant’s 

liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. 

at 678 (citations and internal quotation marks omitted). 

DISCUSSION

Under the PLRA, “[n]o action shall be brought with respect to prison conditions under 

section 1983 . . . or any other Federal law, by a prisoner confined in any jail, prison, or other 

correctional facility until such administrative remedies as are available are exhausted.” 42 

U.S.C. § 1997e(a). There must be “proper exhaustion” of available administrative remedies, 

meaning the inmate must “us[e] all steps the agency holds out . . . .” Woodford v. Ngo, 548 U.S. 

81, 90 (2006) (internal quotation marks and citation omitted). Administrative remedies must be 

exhausted prior to filing suit and may not be exhausted during the pendency of the suit. 

McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see also Vaden v. Summerhill, 449 

F.3d 1047, 1150-51 (9th Cir. 2006). 

Here, Plaintiff concedes in his Complaint that although SCRI has a “prisoner grievance 

procedure[,]” he has not filed any “grievance concerning the facts [alleged in his Complaint]” 

and has not “completed” his “grievance process[.]” Compl., p. 2. Plaintiff explains that he did 

not file a grievance concerning the allegations in his Complaint because “[g]rievance’s [sic] have 

not been getting Returned [sic] from other Institutions [sic] & The Officer’s [sic] Like [sic] to 

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4 - OPINION & ORDER

tampper [sic] with Grievance’s [sic].” Id. Plaintiff’s explanation simply does not excuse 

Plaintiff from following the grievance procedures available to him at SCRI as required under the 

PLRA. Accordingly, Plaintiff’s Complaint must be dismissed.2 

CONCLUSION 

For the reasons stated above, Defendant’s motion to dismiss (dkt. #17) is GRANTED for 

failure to exhaust administrative remedies under the PLRA. 

IT IS SO ORDERED. 

 Dated this day of ____________, 2013. 

 

 

 MARCO A. HERNANDEZ 

 United States District Judge 

 

2

 Defendant also argues that Plaintiff fails to state a claim for relief because his allegations do not 

show that he was denied care or that Defendant was deliberately indifferent to his medical needs. 

Having already concluded that Plaintiff did not properly exhaust his administrative remedies as 

required under the PLRA, I decline to address this argument. 

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