The opinion of the court was delivered by: Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court in this pro se civil rights action, filed pursuant to 42 U.S.C. § 1983 by Otis Michael Bridgeforth ("Plaintiff") against Dr. Popovics and Sandra McCarthy ("Defendants"), are the following: (1) Defendants' motion to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No. 7);*fn1 and (2) Plaintiff's opposition to Defendants' motion to dismiss for failure to state a claim and his cross-motion to "strike" record evidence submitted in support of Defendants' alternative motion (for summary judgment), pursuant to Fed. R. Civ. P. 56(d), as "premature, inaccurate, and incomplete" (Dkt. No. 9).*fn2 For the reasons set forth below, Defendants' motion to dismiss for failure to state a claim is granted in part and denied in part, such that Plaintiff's Complaint is conditionally dismissed unless, within thirty days from the date of this Decision and Order, he files an Amended Complaint that states a claim upon which relief can be granted. In addition, Defendants' alternative motion for summary judgment is denied without prejudice as unsupported by a Local Rule 7.1 Statement and unaccompanied by a Local Rule 56.2 Notice.
Finally, Plaintiff's cross-motion to strike is denied as moot and unsupported by a showing of cause.
Generally, liberally construed, Plaintiff's one-count Complaint claims that, in March 2007, while he was a student at Hudson Valley Community College ("HVCC"), Defendants violated the Fourteenth Amendment by denying him due process at a disciplinary hearing, thereby causing his indefinite dismissal from the college. (See generally Dkt. No. 1 [Plf.'s Compl.].)
In support of this due process claim, Plaintiff asserts the following factual allegations: (1) in March 2002, he was involved in an "on campus dispute" with a student, which resulted in a "[two] semester off campus suspen[s]ion [from HVCC] . . . without a board hearing"; (2) the suspension, which was "based on unlawfully placed photographs, and [an] established disciplinary record, never included a post probation term"; (3) "in 2005, . . . Plaintiff received his Associates Degree from [HVCC]"; (4) in 2007, Defendants "falsely alleged" that Plaintiff had violated "a non-existent probation order"; (5) based on Plaintiff's alleged violation of this "nonexistent probation order," he was "dismissed indefinitely from the college campus, without making a threat, or threatening the security of staff or students, or teammates or coaches"; (6) in dismissing him from campus, Defendants relied on Plaintiff's "prior disciplinary record," which "did not include a probation order," and "fraudulent photographs" of the 2002 on-campus incident; (7) while he had been "previously warned for alleged established conduct, and suspended, [he] never had a probation order at [HVCC]"; (8) "Defendant McCarthy had knowledge and possessed facts stating . . . Plaintiff was never on probation"; and (9) as a result of Defendants' violation of Plaintiff's constitutional rights, Plaintiff has "suffer[ed] emotionally" and his "student athlete career," as well as his "acceptability for enrollment" at colleges, has been "jeopardized." (Id.)
As relief for this alleged constitutional violation, Plaintiff seeks $2 million in damages and the removal of the "disciplinary sanctions" from his "academic record." (Id.)
B. Defendants' Motion and Plaintiff's Response
Generally, Defendants' motion argues as follows: (1) Plaintiff has failed to allege facts plausibly suggesting that Defendants violated his right to due process under the Fourteenth Amendment, because, based on his own factual allegations, he was actually afforded more process than he was due under the Fourteenth Amendment prior to his dismissal from HVCC; and (2) even if Plaintiff has alleged such facts, he has failed to adduce admissible record evidence from which a rational fact-finder could conclude that Defendants violated his right to due process under the Fourteenth Amendment, because, based on the undisputed facts, again, he was actually afforded more process than he was due under the Fourteenth Amendment prior to his dismissal from HVCC. (See generally Dkt. No. 7, Attach. 8 [Defs.' Memo. of Law].)
Construed with the utmost of special liberality, Plaintiff's response to Defendants' motion asserts an array of arguments, the strongest of which are as follows: (1) he has, in fact, alleged facts plausibly suggesting that Defendants violated his right to due process under the Fourteenth Amendment, by alleging, inter alia, that, in dismissing him from HVCC, Defendants intentionally or recklessly relied on a probation order that either never existed or was invalid (due to a lack of timely notice to Plaintiff); and (2) Defendants' alternative motion (for summary judgment) must be denied as "premature, inaccurate, and incomplete." (See generally Dkt. No. 9 [Plf.'s Response].)
More specifically, in support of this latter argument, Plaintiff argues as follows: (1) certain of the documents provided by Defendants in support of their motion are "frivolous"; (2) "Plaintiff intends on answering [the] question of the genuine[ne]ss of each . . . document [submitted by Defendants in support of their motion] at a later stage in the proceeding"; and (3) the record evidence adduced by Defendants does not establish that Plaintiff was provided due process before he was dismissed from HVCC because, among other things, (a) he was never given "notice of a post-probation or probation tenure . . . in 2002," (b) having received his Associate's Degree in 2005, he "was no longer a student at [HVCC] as of December 30, 2005," and it was not until after he was accepted in 2006 into the criminal justice program that he became a student again, and (c) as a result, he was not, and could not have been, on probation in 2007. (Id.)
II. GENERAL LEGAL STANDARDS
A. Legal Standard Governing a Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, Pursuant to Fed. R. Civ. P. 12(b)(6)
It has long been understood that a defendant may base a motion to dismiss for failure to state a claim upon which relief can be granted on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga County, 549 F. Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review) [citations omitted].
Because such motions are often based on the first ground, a few words on that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. This tension between permitting a "short and plain statement" and requiring that the statement "show" an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the "short and plain" pleading standard under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F. Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described "showing," the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at 212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of "enabl[ing] the adverse party to answer and prepare for trial" and "facilitat[ing] a proper decision on the merits" by the court. Jackson, 549 F. Supp.2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the "liberal" notice pleading standard "has its limits." 2 Moore's Federal Practice § 12.34[b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the "liberal" notice pleading standard. Rusyniak, 629 F. Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S.Ct. 1937');">129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corporation v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corporation v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S. Ct. at 1968-69. Rather than turning on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. at 1965 [citations omitted]. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id. [citations omitted].*fn3
As for the nature of what is "plausible," the Supreme Court explained that "[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, 129 S.Ct. 1937, 1949 (2009). "[D]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not show[n]--that the pleader is entitled to relief." Ashcroft, 129 S.Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," id., it "does not impose a probability requirement." Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Ashcroft, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citations omitted).
This pleading standard applies even to pro se litigants. While the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.*fn4
Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.*fn5 Stated more simply, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended." Jackson, 549 F. Supp.2d at 214, n.28 [citations omitted].
Finally, a few words are appropriate regarding what documents are considered on a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). For purposes of Fed. R. Civ. P. 12(b)(6), "[t]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (internal quotation marks and citations omitted); see also Fed. R. Civ. P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."). Moreover, "when a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint," the court may nevertheless take the document into consideration in deciding the ...