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Cervantes v. Salazar

United States District Court, E.D. California

November 1, 2019

SALVADOR CERVANTES, Plaintiff,
v.
SALAZAR, Defendant.

          FINDINGS AND RECOMMENDATIONS

          DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's motion for summary judgment (ECF No. 27). Defendant contends judgement of dismissal is appropriate as a matter of law because plaintiff failed to exhaust administrative remedies prior to filing suit.

         I. PLAINTIFF'S ALLEGATIONS

         This action proceeds on plaintiff's first amended complaint. See ECF No. 8. Plaintiff alleges:

On Friday, May 22, 2015, I submitted a CDCR form 602 appeal to the Appeals Coordinator. I states I had safety concerns because some of the prisoners were being bullies. The Appeals Coordinator contacted Program II Sergeant Salazar. He introduced a CDCR 128b safety concern chrono and he wanted me to sign it but I refused to sign the chrono. Then he placed me in hand cuff [sic]. At that point, I thought he was going to take me to Ad-Seg, but he escorted me back to the cell.
I suddenly stopped walking forward and I was getting scared, because I did not know Salazar could do that. Then he utilized his physical strength and body weight to force me to the floor. I was wearing eyeglasses and when I hit the floor, they fell to the side.

ECF No. 8, pg. 4.

         II. THE PARTIES' EVIDENCE

         A. Defendant's Evidence

         Defendant contends the following facts are undisputed:

1. At all times relevant to the complaint, plaintiff was a prisoner incarcerated at Deuel Vocational Institution (DVI). (Plaintiff's first amended complaint, ECF No 8, pg. 5).
2. The only appeal plaintiff filed while at DVI after May 22, 2015, received at the third level of review was log no. DVI-X-15-01615. (Spaich declaration, ¶¶ 6 and 14, and Exhibit A; Cantu declaration, ¶¶ 4, and Exhibit A).
3. In this appeal, plaintiff described his claim as follows: “When Sargeant [sic] Salazar dropped me to the concrete floor, my eye glasses fell and didn't gave [sic] them back.” (Cantu declaration, ¶ 5, and Exhibit B).
4. In the “Action Requested” section of the appeal, plaintiff stated: “I want to know what he did with my glasses, if lost or broken, I need ...

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