FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on claims raised against eight defendants named in plaintiff's original complaint, filed November 8, 2010. The matter is now before the court on the motion to dismiss filed May 12, 2011, on behalf of defendant P. Osterlie and the motion to dismiss filed May 18, 2011, on behalf of defendants M. Cherry, R. Fletes, B. Heise, M. Martel, J. Scott, D. Thompson, and K. Yarborough. Defendants seek dismissal of the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted and on the ground that they are entitled to qualified immunity.
STANDARDS FOR A MOTION TO DISMISS
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only '"give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."'" Erickson, 551 U.S. at 93 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).
In general, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court's liberal interpretation of a pro se complaint may not supply essential elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992).
ALLEGATIONS OF THE COMPLAINT
Plaintiff's complaint contains the following allegations. Plaintiff
worked in the meat plant at Mule Creek State Prison (Mule Creek).
Defendant Osterlie was the plant supervisor. One day while plaintiff
was at work defendant Osterlie held a sausage near his genital area
and flashed it in a sexual manner at plaintiff, saying "what do you
think of this" as he did so. (Compl. (Doc. No. 1) at 4.)*fn1
Plaintiff spoke to defendant Osterlie about his behavior but
Osterlie "took it lightly." (Id.) Plaintiff then complained to a
fellow worker about the incident, who told defendant Osterlie that
plaintiff was going to initiate a complaint against him. (Id.)
Defendant Osterlie responded by saying that if anyone initiated a complaint he would take all of the inmate workers' privileges away. (Id.)
In January 2010, plaintiff spoke to defendant Yarborough about his complaints regarding defendant Osterlie's behavior and asked to be transferred to another position. (Id.) Defendant Yarborough told plaintiff there were no other positions available and to just go back to work. (Id. at 5.) When plaintiff returned to work, he had to avoid defendant Osterlie's harassment. (Id.) Defendant Osterlie continued to seek plaintiff out for retaliation and eventually issued a false disciplinary report against plaintiff. (Id.)
Plaintiff also spoke to defendant Scott about his complaints. (Id.) Defendant Scott did nothing about plaintiff's complaints of retaliation by defendant Osterlie, and although he did purport to attempt to address plaintiff's sexual harassment claim against Osterlie, nothing came of those of efforts. (Id.)
At the second level of administrative review, defendant King signed the administrative decision on behalf of defendant Thompson, finding that plaintiff's claims did not meet the criteria for a staff complaint. (Id.) Defendant Martel then signed off on this administrative decision at the second level of review for the Warden, who regularly refused to process or hear inmate complaints based on a bulletin which he issued halting "all actions against staff." (Id.) Defendants Thompson, Heise, Fletes and Cherry all "knew of and or participated in" the events complained of by plaintiff. (Id. at 6.)
Defendant Osterlie contends that plaintiff has failed to state a cognizable claim for relief against him under the Due Process Clause of the Fourteenth Amendment or the Eighth Amendment. Defendant Osterlie also argues that plaintiff has failed to state a cognizable claim for sexual ...