ORDER DIRECTING DEFENDANT TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION
(Docket No. 3)
RONALD M. WHYTE, District Judge.
Plaintiff, a state prisoner proceeding pro se, filed a civil complaint in the Superior Court of Monterey County. On March 4, 2013, defendant Meyer filed a notice of removal. For the reasons stated below, the court directs defendant to file a dispositive motion or notice regarding such motion.
A. Standard of Review
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins , 487 U.S. 42, 48 (1988).
B. Plaintiff's Claims
Plaintiff alleges that on December 25, 2009, defendant Correctional Officer A. Myer and his partner used excessive force upon plaintiff when removing plaintiff from his cell in mechanical restraints, injuring plaintiff's shoulder. Plaintiff claims Myer again assaulted him when Myer slammed plaintiff's head twice against the inside of the back of the holding cage. Liberally construed, plaintiff has stated a cognizable claim of excessive force against defendant Myer.
The court also exercises its supplemental jurisdiction over plaintiff's state law claims.
For the foregoing reasons, the court hereby orders as follows:
1. No later than ninety (90) days from the date of this order, defendant shall file a motion for summary judgment or other dispositive motion with respect to the cognizable claim in the complaint.
a. If defendant elects to file a motion to dismiss on the grounds that plaintiff failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), defendant shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune , 315 F.3d 1108, 1119-20 (9th Cir. 2003).
b. Any motion for summary judgment shall be supported by adequate factual documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil Procedure. Defendant is advised that summary judgment cannot be granted, nor qualified immunity found, if material facts are in dispute. If defendant is of the opinion that this case cannot be resolved by ...