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Velarde v. Duarte

United States District Court, S.D. California

February 4, 2013

HAROLD ANTHONY VELARDE, Plaintiff,
v.
E. DUARTE, Defendant

Decided: February 1, 2013.

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For Harold Anthony Velarde, Plaintiff: Angela K. Zugman, LEAD ATTORNEY, Law Office of Angela K. Zugman, San Diego, CA; David J Zugman, LEAD ATTORNEY, Burcham & Zugman APC, San Diego, CA.

For E Duarte, Correctional Officer, Defendant: Stephen A Aronis, LEAD ATTORNEY, Office of the Attorney General, San Diego, CA.

OPINION

KAREN S. CRAWFORD, United States Magistrate Judge.

Page 1211

REPORT AND RECOMMENDATION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

[Doc. No. 41]

Plaintiff Harold Anthony Velarde, a state prisoner now proceeding through counsel, filed a Complaint under the Civil Rights Act, 42 U.S.C. Section 1983, alleging a single cause of action for excessive force against defendant E. Duarte, a correctional officer at the prison where plaintiff is housed. [Doc. No. 1.] Currently pending before the Court is defendant's Motion for Summary Judgment. [Doc. No. 41.] Based on the moving and opposing papers, the evidence presented, and the relevant law, it is RECOMMENDED that defendant's Motion for Summary Judgment be GRANTED.

I. Background

The Complaint alleges that after a riot occurred in the prison on October 6, 2009 two correctional officers came to the door of plaintiff's cell and told him to " cuff up." Defendant Duarte was one of the officers. After plaintiff was handcuffed through the food porthole of his cell, the cell door was opened, and he was ordered to face the wall and walk backwards out of the cell. Plaintiff alleges that defendant Duarte grabbed his neck from behind and slammed his face into the wall. Because of the surprise, plaintiff claims he turned away from the wall and defendant Duarte grabbed his shoulders and pushed him down. According to plaintiff, his leg was broken during the incident due to a prior injury from a gunshot wound. He was taken to the hospital, where he had surgery to place a steel plate inside his ...


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