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 Defendants, alleging violations of 42 U.S.C. § 1983, the federal 

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

Defendants Colette Peters and Guy Hall move to dismiss the claims against them. For the 

reasons discussed below, Defendants Peters and Hall’s motion is granted. 

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 

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PAGE 2 – OPINION AND ORDER

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 

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)).

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PAGE 3 – OPINION AND ORDER

BACKGROUND

Plaintiff participated in the electrician apprenticeship program at Santiam Correctional

Institution. Defendant 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 Mr. 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

Plaintiff asserts a 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).

Plaintiff’s Eighth Amendment claim is brought under section 1983. Plaintiff asserts 

vicarious liability claims against Defendants Peters and Hall, alleging that they are liable for 

Defendant Alvardo’s conduct because of their role as supervisors at the Department of 

Corrections. Liability under Section 1983, however, “arises only upon a showing of personal 

participation by the defendant. A supervisor is only liable for constitutional violations of his 

subordinates if the supervisor participated in or directed the violations, or knew of the violations 

and failed to act to prevent them. There is no respondeat superior liability under section 1983.” 

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted); see also Maxwell v. Cnty.

of San Diego, 706 F.3d 1075, 1086 (9th Cir. 2013) (“A supervisor is liable under § 1983 for a 

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PAGE 4 – OPINION AND ORDER

subordinate’s constitutional violations ‘if the supervisor participated in or directed the violations, 

or knew of the violations and failed to act to prevent them.’” (quoting Taylor, 880 F.2d at 1045)).

Plaintiff does not allege facts from which it can plausibly be inferred that Ms. Peters or 

Mr. Hall were personally involved in Mr. Alvarado’s conduct, directed that conduct, or knew 

about it and failed to act to prevent it. Thus, Plaintiff fails to state a claim for a violation of 

section 1983 against Defendants Peters and Hall. Because it is not “absolutely clear” that 

Plaintiff could not cure this deficiency, Plaintiff has leave to file an amended complaint if he can 

plausibly state a claim under section 1983 against Defendants Peters or Hall. Karim-Panahi, 839 

F.2d at 623. Plaintiff’s section 1983 claim against Defendant Alvarado1is not dismissed and, 

thus, Plaintiff’s case is not dismissed in its entirety.

CONCLUSION

The motion to dismiss by Defendants Peters and Hall (Dkt. 15) is GRANTED. Plaintiff’s 

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

claims against Defendants Peters and Hall are dismissed without prejudice. If Plaintiff can cure 

the deficiencies identified in this Opinion, Plaintiff may file an amended complaint within 45 

days from the date of this Opinion.

IT IS SO ORDERED.

DATED this 25th day of August, 2015.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

 

1

The Court notes that Plaintiff has yet to return the documents for service of process 

against Mr. Alvarado, pursuant to the Court’s Order dated July 28, 2015 (Dkt. 21). If such 

documents are not timely returned, Plaintiff’s claims against Mr. Alvarado may be dismissed for 

lack of prosecution.

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