PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRIAN SCOTT FENLON,

Plaintiff,

v.

COLETTE PETERS, GUY HALL, and

ANDY ALVARADO,

Defendants.

Case No. 6:15-cv-397-SI

OPINION AND ORDER

Michael H. Simon, District Judge.

Plaintiff Brian Scott Fenlon is a prisoner in the Santiam Correctional Institution. Plaintiff 

brings pro se claims against Defendant Andy Alvarado (“Alvarado”),

1

alleging violations of 42 

U.S.C. § 1983 and the federal Prison Rape Elimination Act (“PREA”), 42 U.S.C. § 15602, et 

seq. Alvarado moves to dismiss the claims against him on the grounds that Plaintiff failed timely 

to serve Alvarado and that Plaintiff’s allegations fail properly to state a claim for relief. For the 

reasons discussed below, Alvarado’s motion is granted in part and denied in part.

 

1

The claims against Defendants Colette Peters and Guy Hall were dismissed by the Court 

on August 25, 2015.

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PAGE 2 – OPINION AND ORDER

STANDARDS

A motion to dismiss for failure to state a claim may be granted only when there is no 

cognizable legal theory to support the claim or when the complaint lacks sufficient factual 

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., 

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual 

allegations, the court must accept as true all well-pleaded material facts alleged in the complaint 

and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 

F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint 

“may not simply recite the elements of a cause of action, but must contain sufficient allegations 

of underlying facts to give fair notice and to enable the opposing party to defend itself 

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from 

the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office 

Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the 

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 

U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an 

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the 

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial 

plausibility when the pleaded factual content allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

A court must liberally construe pro se complaints and motions from prisoners. United 

States v. Seesing, 234 F.3d 456, 462 (9th Cir. 2000). “A pro se litigant must be given leave to 

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PAGE 3 – OPINION AND ORDER

amend his or her complaint unless it is ‘absolutely clear that the deficiencies of the complaint 

could not be cured by amendment.’” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 

623 (9th Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded 

on other grounds by statute as stated in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000)).

BACKGROUND

Plaintiff participated in the electrician apprenticeship program at Santiam Correctional

Institution. Alvarado was allegedly employed by the Oregon Department of Corrections as the 

journeyman electrical instructor for the apprenticeship program. Plaintiff alleges that sometime 

between February 24, 2014 and March 4, 2014, Plaintiff was bending over and Defendant 

Alvarado grabbed Plaintiff’s hips and thrust into Plaintiff’s backside three or four times, making 

contact between Alvarado’s clothed genitals and Plaintiff’s clothed anus. Plaintiff further alleges 

that Mr. Alvarado stated to Plaintiff “now you got me all worked up, I need to go home and 

pound my wife.” This alleged incident occurred before witnesses. Plaintiff seeks one million 

dollars in compensation.

DISCUSSION

A. Dismissal for failure timely to serve

Defendant moves to dismiss this case not timely served under Federal Rule of Civil 

Procedure 4(m) because Plaintiff did not serve Alvarado until after the 120-day period 

established in Rule 4(m) had expired.

2

Plaintiff filed his complaint on March 9, 2015. Plaintiff’s 

application to proceed in forma pauperis was granted by the Court on April 23, 2015. When a 

plaintiff proceeds in forma pauperis, the Court provides to the plaintiff blank copies of the 

Summons and necessary documents for service of process, requests the plaintiff return those 

 

2 Rule 4(m) was amended, effective December 1, 2015, shortening the time for service to 

90 days. This amendment is not relevant to Alvarado’s motion to dismiss.

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PAGE 4 – OPINION AND ORDER

documents to the Clerk of the Court, and orders the U.S. Marshals Service to effectuate the 

service of process after the documents have been returned.

Here, before providing Plaintiff with the service documents to complete and return, the 

Court sought a waiver of service on all three Defendants. This is routinely done in cases such as 

Plaintiff’s to save Court and U.S. Marshals Service resources. On June 19, 2015, the waiver of 

service was returned for Defendants Guy Hall and Colette Peters. Waiver of service for Alvarado 

was declined. Accordingly, on July 28, 2015, the Court forwarded to Plaintiff the Summons and 

U.S. Marshals Service instruction forms to complete so that process could be issued and service 

of process could be effectuated on Alvarado. The Court ordered Plaintiff to return these service 

documents within forty-five days from the date of the Order, which resulted in a deadline of 

September 11, 2015. The Court furthered ordered that upon receiving the documents from 

Plaintiff, the Clerk of the Court would issue process as to Alvarado and the U.S. Marshals 

Service would effectuate service. Plaintiff timely returned the service documents, the Summons 

as to Alvarado was issued on September 11, 2015, and Alvarado was served by the U.S. 

Marshals Service on September 28, 2015. 

The Court has discretion under Rule 4(m) to extend the time for service and the Court did 

so by permitting Plaintiff to return his service documents on or before September 11, 2015, with 

the understanding that service would then require additional time to be effectuated by the U.S. 

Marshals Service. Because Plaintiff complied with the Court’s Order and timely returned the 

service documents, service on Alvarado was timely. Moreover, the Court notes that Alvarado 

and his counsel were aware of this lawsuit well before it was served, in August counsel for 

Alvarado expressly declined to waive service of process, thereby requiring the expenditure of 

Court Clerk and U.S. Marshals Service resources, and despite being asked by the Court, counsel 

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PAGE 5 – OPINION AND ORDER

for Alvarado failed to provide the Court with Alvarado’s address so that the U.S. Marshals 

Service could serve Alvarado. The Court had to obtain Alvarado’s address from the Oregon

Department of Justice. In light of these facts, Alvarado’s motion to dismiss this case for lack of 

timely service is not well taken.

B. Failure to state a claim

Alvarado moves to dismiss Plaintiff’s claim under the PREA. This claim is dismissed

with prejudice because there is no private right of action under the PREA. See Krieg v. 

Steele, 599 F. App’x 231, 232 (5th Cir. 2015) (citing cases); Porter v. Jennings, 2012 

WL 1434986, at *1 (E.D. Cal. Apr. 25, 2012) (citing cases).

Alvarado also moves to dismiss Plaintiff’s claim under 42 U.S.C. § 1983. To state a 

claim for relief under Section 1983, Plaintiff must allege that he was deprived of a right secured 

by the Constitution or laws of the United States, and that the deprivation was committed under 

color of state law. Azer v. Connell, 306 F.3d 930, 935 (9th Cir. 2002). Plaintiff alleges that 

Alvarado violated Plaintiff’s rights under the Eighth Amendment.

Alvarado argues that the facts alleged by Plaintiff do not show that Alvarado was acting 

under the color of state law because his alleged actions were not within the scope of his 

employment. It appears that Alvarado is arguing that the alleged sexual misconduct by Alvarado 

cannot be in the scope of his employment because he was not hired to engage in sexual 

misconduct. This argument is unavailing.

“An individual acts under color of state law when he or she exercises power ‘possessed 

by virtue of state law and made possible only because the wrongdoer is clothed with the 

authority of state law.’” Naffe v. Frey, 789 F.3d 1030, 1036 (9th Cir. 2015) (quoting United 

States v. Classic, 313 U.S. 299, 326 (1941)); see also Dang Vang v. Vang Xiong X. Toyed, 944 

F.2d 476, 479 (9th Cir. 1991) (noting that “‘[i]t is firmly established that a defendant in a § 1983 

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suit acts under color of state law when he abuses the position given to him by the state’”

(alteration and emphasis in original) (quoting West v. Atkins, 487 U.S. 42, 49–50 (1988))). Thus, 

“a state employee who is on duty . . . typically acts under color of state law. That is true even if 

the employee’s offensive actions were illegal or unauthorized.” Naffe, 789 F.3d at 1037; see also 

McDade v. West, 223 F.3d 1135, 1137 (9th Cir. 2000) (finding that a County employee who 

illegally used a computer database to locate her husband’s ex-wife who was living in a battered 

woman’s shelter was acting under the color of law because she “abused her responsibilities and 

purported or pretended to be a state officer during the hours in which she accessed the 

computer”); Dang Vang, 944 F.2d at 479 (upholding jury verdict that a state employee was 

acting under color of law for purposes of Section 1983 because he came into contact with the 

women he sexually assaulted through his employment with the state and the jury could have 

found that he raped the women “during a meeting related to the provision of services pursuant to 

his state employment”).

Here, Plaintiff alleges that Alvarado was an employee of the Department of Corrections, 

employed as the journeyman instructor for the prison’s electrician apprenticeship program. 

Plaintiff further alleges that he was sexually assaulted by Alvarado during the work hours of this 

apprenticeship program, while Alvarado was on duty. These allegations sufficiently allege that 

Alvarado was acting under the color of state law. Regardless of the fact that Alvarado was not 

hired to assault inmates, he allegedly engaged in the misconduct while on duty, during an 

instruction program related to his provision of services pursuant to his employment, and through 

access to Plaintiff obtained via Alvarado’s employment with the state, all in an abuse of the 

position given to him by the state to provide electrical instruction to inmates.

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PAGE 7 – OPINION AND ORDER

CONCLUSION

The amended motion to dismiss by Defendant Alvarado (Dkt. 34) is GRANTED IN 

PART AND DENIED IN PART. Defendant Alvarado’s motion is granted with respect to 

Plaintiff’s claim under the Prison Rape Elimination Act, which is dismissed with prejudice.

Defendant Alvarado’s motion is denied with respect to Plaintiff’s Section 1983 claim.

IT IS SO ORDERED.

DATED this 23rd day of December, 2015.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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