United States District Court, D. Oregon, Pendleton Division
OPINION AND ORDER
MICHAEL W. MOJSMAN CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before me on a Motion to Dismiss for Failure to
State a Claim  filed by the named defendants in this
case, who are employees of the Oregon Department of
Corrections (ODOC). Plaintiff Andrew Wilkerson is a prisoner
at the Oregon State Penitentiary and brings this lawsuit pro
se. For the reasons below, I GRANT the named defendants'
Motion to Dismiss .
Wilkerson filed his Complaint under 42 U.S.C. § 1983,
alleging two ways in which Defendants violated his Eighth
Amendment right to be free from cruel and unusual punishment.
Compl.  at 1-2. First, Mr. Wilkerson claimed that four
unnamed ODOC employees ("the Doe defendants")
sexually assaulted him in his cell while he was housed at Two
Rivers Correctional Facility (TRCI). In addition to the four
Doe defendants, Mr. Wilkerson named as defendants Collette
Peters, director of ODOC, and Steven Boston, a corrections
officer at TRCI. He alleges that Ms. Peters is liable for
creating a hostile environment and failing to train ODOC
employees. Compl.  at 4; Resp.  at 2. Mr. Wilkerson
alleges that Steven Boston is liable for failing to
"take any action to address the nature of Plaintiff s
complaint" about the assault and "engaging] in the
cover-up of the actions of the 4 Correctional
Officer(s)." Compl.  at 5. The second way in which
Mr. Wilkerson alleges that his right to be free of cruel and
usual punishment was violated was by the involuntary
administration of medication, which was approved by ODOC
physicians Diamond and Velez. Compl.  at 5. Mr. Wilkerson
claims that Defendants violated the Eighth Amendment because
the forced medication is being administered without a court
order. Compl.  at 5. For the reasons stated below, I find
that Mr. Wilkerson has not stated a plausible claim for
relief and, therefore, Defendants' Motion to Dismiss 
is GRANTED with respect to the named defendants.
survive a motion to dismiss under the federal pleading
standards, a complaint must include a short and plain
statement of the claim and "contain sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face.'" Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. at 678.
pleadings are held to less stringent standards than pleadings
by attorneys. Haines v. Kernel, 404 U.S. 519, 520-21
(1972). The court should construe pleadings by pro se
plaintiffs liberally and give them the benefit of any doubt.
Karim-Panahi v. L.A. Police Dep Y, 839 F.2d 621, 623
(9th Cir. 1988). Additionally, a pro se litigant is entitled
to notice of the deficiencies in the complaint and the
opportunity to amend, unless the complaint's deficiencies
cannot be cured by amendment. Id.
Sexual Assault Claim
Peters and Mr. Boston moved under Federal Rule of Civil
Procedure 12(b)(6) to dismiss Mr. Wilkerson's claims
against them, which are related to the alleged sexual
assault. They argue that Ms. Peters cannot be held liable for
damages under § 1983 on a theory of respondeat superior.
Mot. to Dismiss  at 2. They also argue that Mr.
Wilkerson's request for retrospective declaratory relief
is barred by the Eleventh Amendment. Id. Finally,
they moved to dismiss the claims against Mr. Boston because
Mr. Wilkerson's allegation that Mr. Boston failed to
investigate does not state a claim for the violation of a
constitutional right. Id.
under [§] 1983 arises only upon a showing of personal
participation by the defendant. A supervisor is only liable
for the constitutional violations of... 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 [§]
1983." Taylor v. List, 880 F.2d 1040, 1045 (9th
Cir. 1989) (citations omitted). "A showing that a
supervisor acted, or failed to act, in a manner that was
deliberately indifferent to an inmate's Eighth Amendment
rights is sufficient to demonstrate the involvement-and the
liability-of that supervisor." Starr v. Baca,
652 F.3d 1202, 1207 (9th Cir. 2011) ("[A] plaintiff may
state a claim against a supervisor for deliberate
indifference based upon the supervisor's knowledge of and
acquiescence in unconstitutional conduct by his or her
subordinates."). In order to hold a supervisor liable
under § 1983, there must be a causal connection between
the supervisor's wrongful conduct and the constitutional
violation. Id. That connection can be established by
"knowingly refusing] to terminate a series of acts by
others, which [the supervisor] knew or reasonably should have
known would cause others to inflict a constitutional
injury." Id. at 1207-08 (citation omitted)
(alteration in original).
Wilkerson alleged that Ms. Peters is liable for his sexual
assault because she created a hostile environment that
facilitated the assault. Compl.  at 4. This allegation
fails to establish Ms. Peters's personal involvement. Nor
does Mr. Wilkerson allege that Ms. Peters was deliberately
indifferent to sexual assaults by ODOC employees. The
Complaint does not allege that Ms. Peters knew or should have
known that Mr. Wilkerson was or would be sexually assaulted.
Therefore, Mr. Wilkerson has not adequately pleaded a claim
against Ms. Peters and the Motion to Dismiss  is granted
with respect to Ms. Peters.
Wilkerson alleges that Mr. Boston is liable for failing to
investigate the alleged sexual assault. Mot. to Dismiss 
at 5. But Mr. Wilkerson did not claim that Mr. Boston failed
to investigate. He acknowledged that Mr. Boston investigated
the alleged sexual assault by reviewing video of the area
around Mr. Wilkerson's cell. Resp.  at 2. Instead,
Mr. Wilkerson alleges that Mr. Boston did not "address
the nature of [the] complaint" after reviewing the video
recordings, which Mr. Wilkerson alleges depict the assault.
Compl.  at 4-5. While this claim comes close to alleging
that Mr. Boston acquiesced in the assault, even a liberal
reading of the Complaint does not lead to the conclusion that
Mr. Boston was aware that a constitutional violation would
occur. Taking the facts alleged in the Complaint in the light
most favorable to Mr. Wilkerson, Mr. Boston investigated Mr.
Wilkerson's claims only after the alleged assaults
occurred. Therefore, there is no causal connection between
Mr. Boston and the alleged sexual assault. And Mr. Wilkerson
did not allege that Mr. Boston's inaction led to another
assault. Because, as the named defendants argue, there is no
independent constitutional right to an adequate investigation
when the investigation does not otherwise involve the
deprivation of a protected right, Mr. Wilkerson has failed to
state a claim against Mr. Boston. Mot. to Dismiss  at 5
(citing Gomez v. Whitney, 757 F.2d 1005 (9th Cir.
1985). Therefore, the Motion to Dismiss  is granted with
respect to Mr. Boston.