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Velarde v. Duarte

United States District Court, S.D. California

March 19, 2013

HAROLD ANTHONY VELARDE, an individual; Plaintiff,
v.
E. DUARTE, an individual, Defendant

Page 1205

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

Hon. Anthony J. Battaglia, U.S. District Judge.

Page 1206

ORDER:

(1) DENYING PLAINTIFF'S OBJECTIONS, (Doc. No. 50);

(2) ADOPTING THE REPORT AND RECOMMENDATION, (Doc. No. 49); AND

(3) GRANTING DEFENDANT'S MOTION FOR SUMMARY, (Doc. No. 41).

Plaintiff Harold Anthony Velarde (" Plaintiff" ), a prisoner at Calipatria State Prison, has brought a single claim under 42 U.S.C. § 1983 based on Defendant E. Duarte's (" Defendant" or " Duarte" ) alleged use of excessive force in constraining Plaintiff following a riot in the prison. (Doc. No. 1.) Presently before the Court is Defendant's motion for summary judgment, (Doc. No. 41), and Magistrate Judge Crawford's Report and Recommendation (" R& R" ). The R& R advises the Court to grant Defendant's motion for summary judgment and close the case. (Doc. No. 49.) Plaintiff, who is currently represented by counsel, filed timely objections to the R& R on February 13, 2013, (Doc. No. 50), and Defendant filed a response to Plaintiff's objections on February 22, 2013, (Doc. No. 51). For the reasons set forth below, Plaintiff's objections are DENIED, (Doc. No. 50), the Court ADOPTS the R& R in its entirety, (Doc. No. 49), and Defendant's Motion for Summary Judgment is GRANTED, (Doc. No. 41). The Clerk of Court is instructed to enter judgment and close the case.

BACKGROUND

Magistrate Judge Crawford's Report and Recommendation provides a through and accurate recitation of the procedural and factual history relating to Plaintiff's § 1983 claim. (Doc. No. 49 at 1-2.) However, for the sake of completeness and ease of review, the Court reiterates the pertinent facts below.

The incident giving rise to the complaint stems from an encounter that occurred between Plaintiff and Defendant after a riot in the prison where Plaintiff is currently housed. ( Id. ) On the date of the incident, October 6, 2009, Plaintiff alleges that two correctional officers, one of which was Defendant Duarte, came to the door of Plaintiff's cell and told him to " cuff up." ( Id. at 2-3.) Plaintiff was then handcuffed through the food porthole of his cell, the cell door was ...


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