(PC) Marquez v. Ortiz

• Court: District Court, E.D. California
• Decided: May 30, 2025
• Docket: 1:23-cv-01782
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN MARQUEZ, No. 1:23-cv-01782-KES-EPG (PC) 12 Plaintiff, ORDER ADOPTING IN PART FINDINGS AND RECOMMENDATIONS 13 v. (Doc. 12) 14 ORTIZ, et al., 15 Defendants. 16 17 Plaintiff Jonathan Marquez is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 19 magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 22, 2024, the assigned magistrate judge screened plaintiff’s amended 21 complaint and issued findings and recommendations recommending that this action be dismissed 22 for failure to state a claim. Doc. 12. Specifically, the magistrate judge found that plaintiff failed 23 to state a claim for excessive force under the Eighth Amendment, failed to state a claim for 24 retaliation under the First Amendment, and failed to state a claim for violation of procedural due 25 process. 26 The findings and recommendations were served on plaintiff, who was notified that any 27 objections were to be filed within 30 days after service. Id. at 9. Plaintiff filed objections on 28 November 4, 2024. Doc. 13. 1 In accordance with 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of 2 the case. 3 EIGHTH AMENDMENT CLAIM 4 Plaintiff alleges that, although he was not part of a fight, he was shot three times when 5 defendant Ortiz fired six times in his direction.1 Doc. 7 at 3. Plaintiff further alleges that he was 6 shot while he was on the floor. Id. The magistrate judge reasoned that because Ortiz shot 7 plaintiff as part of a response to a fight, plaintiff failed to allege that the force used was malicious 8 and sadistic rather than a good faith effort to maintain or restore discipline. Doc. 12 at 6-7. 9 However, there are no allegations suggesting that the use of force was necessary to maintain or 10 restore discipline. For example, there are no allegations about the number of inmates involved in 11 the fight, whether an inmate was in danger of great bodily harm, how close plaintiff was to the 12 fighting inmates, or whether any of the inmates had weapons. The Ninth Circuit has held that it is 13 a violation of the Eighth Amendment “[t]o shoot a passive, unarmed inmate standing near a fight 14 between other inmates, none of whom was armed, when no inmate was in danger of great bodily 15 harm” because such use of force “would inflict unnecessary and wanton pain.” Marquez v. 16 Gutierrez, 322 F.3d 689, 692 (9th Cir. 2003). 17 Plaintiff alleges that he was not involved in the fight and was on the ground when he was 18 shot. At the screening stage, and drawing all reasonable inferences in plaintiff’s favor, plaintiff 19 sufficiently alleges an Eighth Amendment excessive force claim against Ortiz. 20 RETALIATION AND DUE PROCESS CLAIMS 21 Plaintiff alleges that defendants retaliated against him by shooting him and by filing a 22 false RVR. Doc. 7 at 4. The magistrate judge found that plaintiff failed to state cognizable 23 retaliation and due process violation claims. In his objections, plaintiff largely repeats the same 24 allegations and arguments that the magistrate judge correctly found were without merit and

25 1 The Ninth Circuit has held that an excessive force claim may be asserted by someone who was harmed by the allegedly excessive force, even if the force was directed at someone other than the 26 plaintiff. Robins v. Meecham, 60 F.3d 1436, 1441 (9th Cir. 1995) (bystander inmate who was 27 injured when corrections officers fired birdshot at a different inmate presented sufficient evidence to create a triable issue of material fact). 28 1 | insufficient to state a retaliation or due process violation claim. Plaintiff does not meaningfully 2 | challenge the magistrate judge’s findings or identify any error in the reasoning of the findings and 3 | recommendations. 4 Accordingly: 5 1. The findings and recommendations issued on October 22, 2024, (Doc. 12), are 6 adopted in part; 7 2. This case shall proceed on plaintiff's Eighth Amendment excessive force claim 8 against defendant Ortiz; 9 3. All other claims and defendants are DISMISSED for failure to state a claim upon 10 which relief may be granted; 11 4. This action is referred back to the assigned magistrate judge for proceedings 12 consistent with this order. 13 14 15 | IT IS SO ORDERED. _ 16 Dated: _ May 29, 2025 4A : UNITED STATES DISTRICT JUDGE

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