The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
Pro se Plaintiff Eugene F. Kimbrough filed a civil rights complaint, pursuant to 42 U.S.C. § 1983, alleging violations of his civil rights stemming from an altercation between him and members of the Town of Dewitt Police Department on January 11, 2005. Dkt. No. 1, Compl. The Town of Dewitt Defendants*fn1 (hereinafter "the Defendants") now move for summary judgment and/or for dismissal of the Complaint pursuant to Federal Rules of Civil Procedure 56(c) and 12(b)(6). Dkt. No. 30. Plaintiff opposes the Motion. Dkt. No. 32. For the reasons that follow, it is recommended that the Defendants' Motion be granted in part and denied in part.
The following facts were derived mainly from the Defendants' Statement of Material Facts, submitted in accordance with N.D.N.Y.L.R. 7.1, and Plaintiff's Affidavit and Response thereto. See Dkt. Nos. 30-10, Defs.' 7.1 Statement & 32-1, Pl.'s Resp. to Defs.' 7.1 Statement. Where Plaintiff has not objected to a particular statement of fact proffered in the Defendants' 7.1 Statement, or vice versa, we will not cite to both 7.1 Statements. See N.D.N.Y.L.R. 7.1(a)(3) ("The Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.") (emphasis in original).
On January 11, 2005, Plaintiff knowingly entered and remained unlawfully in a building owned by the Salvation Army, located at 200 Twin Oaks Drive in the Town of Dewitt, New York, with the intent to commit a crime therein, thus committing the crime of Burglary in the Third Degree under the N.Y. PENAL LAW § 140.20. Defs.' 7.1 Statement at ¶ 1. During the commission of that crime, Plaintiff triggered a silent alarm inside the building, prompting a police response. Id. at ¶ 2.
At some point prior to Plaintiff's exit of the building, several police officers arrived at the Salvation Army and were located at various positions outside of the building. Id. at ¶ 3. Upon exiting the building, Plaintiff knowingly took possession of a stolen vehicle that was in the parking lot. Id. at ¶ 4. Thereafter, Plaintiff proceeded to drive the vehicle towards the exit of the parking lot, whereupon police officers used their guns to fire at the car. Id. at ¶ 7; Pl.'s 7.1 Statement at ¶ 3. Eventually, Plaintiff's vehicle came to a stop and police officers arrested him. Defs.' 7.1 Statement at ¶¶ 8-9; Pl.'s 7.1 Statement at ¶¶ 4-5.
Plaintiff was charged with, inter alia, Attempted Aggravated Assault on a Police Officer, Burglary in the Third Degree, and Criminal Possession of Stolen Property in the Fourth Degree.
Defs.' 7.1 Statement at ¶ 12; Pl.'s 7.1 Statement at ¶ 8. On January 25, 2006, a jury found Plaintiff guilty of all three of the aforementioned crimes. Defs.' 7.1 Statement at ¶¶ 13-14; Pl.'s 7.1 Statement at ¶ 8. On February 9, 2006, Plaintiff was sentenced to the following terms of incarceration: two and a half to four (2 1/2 -4) years for Criminal Possession of Stolen Property in the Fourth Degree; three and a half to seven (31/2 -7) years for Burglary in the Third Degree; and a determinate term of fifteen (15) years for Attempted Aggravated Assault upon a Police Officer.
Defs.' 7.1 Statement at ¶¶ 15-16; Pl.'s 7.1 Statement at ¶¶ 8-9.
By his Complaint, Plaintiff alleges that the Defendants used excessive force when they opened fire on the moving vehicle he was driving and then conspired to cover-up their alleged attempt to kill him by destroying evidence, issuing false reports, tampering with evidence, and committing perjury. See generally Compl.
Because Defendants have moved for dismissal of the Complaint pursuant to both Federal Rule of Civil Procedure 56(c) and Rule 12(b)(6), we will review the applicable review standards under both Rules.
1. Summary Judgment Standard
Pursuant to FED. R. CIV. P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and [the moving party] is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "'pleadings, depositions, answers to interrogatories, and admissions on file, together with  affidavits, if any,'" that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).
To defeat a motion for summary judgment, the non-movant must "set out specific facts showing [that there is] a genuine issue for trial," and cannot rest "merely on allegations or denials" of the facts submitted by the movant. FED. R. CIV. P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
2. Motion to Dismiss Standard
On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The trial court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."
Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
"Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, and matters to which the court may take judicial notice." Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) (citing Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991)). Moreover, "even if not attached or incorporated by reference, a document 'upon which [the complaint] solely relies and which is integral to the complaint' may be considered by the court in ruling on such a motion." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (emphasis added).
The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 n. 6 (1963); see also Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008). Nevertheless, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009). Therefore, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. (citation omitted).
A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff's complaint includes "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, __ U.S. __ 129 S.Ct. at 1950 (citing Twombly). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, __ U.S. __ 129 S.Ct. at 1949. This plausibility standard "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Thus, in spite of the deference the court is bound to give to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts [which he or she] has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether a plaintiff has "nudged [his] claims . . . across the line from conceivable to plausible," entails a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, __ U.S. __ 129 S.Ct. at 1950-51.
B. Plaintiff's Procedural Objections to the Motion
In his Response to Defendants' Motion, Plaintiff argues that the Court should abstain from considering the Motion for the following two reasons: (1) Defendants' attorney, Frank W. Miller, Esq., improperly notarized the Affidavit of Service attached to the Motion; and (2) the Motion is untimely because Plaintiff has not yet had an opportunity to engage in meaningful discovery. Dkt. No. 32-2, Pl.'s Mem. of Law at pp. 7-13.
Plaintiff asserts that because Mr. Miller is a person with "a financial interest in the outcome of this matter," New York Executive Law § 138*fn2 precludes him and anyone in his office from notarizing motion papers. Id. at pp. 8-9. Plaintiff argues that Miller's pecuniary interest in the litigation creates a conflict of interest. However, as Defendants point out, New York Executive Law § 135 specifically permits attorney notary publics to "administer an oath or affirmation to or take the affidavit or acknowledgment of his client in respect of any matter, claim, action or proceeding." N.Y. EXEC. LAW § 135. As such, Defendants' Affidavit of Service, sworn to by Cecelia A. Shortself and notarized by Miller on March 24, 2009, was not defective in any way.
Secondly, Plaintiff asserts that Defendants' Motion is premature and was filed as "an attempt to avoid discovery" and, moreover, was brought in bad faith. Pl.'s Mem. of Law at p. 11. Plaintiff cites to, inter alia, Celotex Corp. v. Catrell, 477 U.S. 317, 322 (1986) in support of his argument that a motion for ...