The opinion of the court was delivered by: LEISURE
LEISURE, District Judge :
Plaintiff, Wayne Sullivan, appearing pro se, brings this action pursuant to 42 U.S.C. § 1983 against Correctional Officer J. Schweikhard and Lieutenants J. Buonato and K. Goeway for unconstitutional administrative segregation resulting from an allegedly false Misbehavior Report issued by Officer Schweikhard. Plaintiff seeks injunctive and declaratory relief as well as monetary damages. On August 3, 1995, defendants moved to dismiss plaintiff's complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Thereafter, plaintiff amended his complaint on October 13, 1995, and defendants moved to dismiss the amended complaint. This motion was referred to the Honorable Ronald L. Ellis, United States Magistrate Judge. On December 5, 1995, plaintiff requested leave pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, to file a second amended complaint.
On September 30, 1996, Magistrate Ellis issued a Report and Recommendation (the "Report"), recommending that the Court deny defendants Schweikhard and Buonato's motions to dismiss, grant defendant Goeway's motion to dismiss, and deny plaintiff's request to amend his complaint. Defendants have filed objections to the Report, raising issues not brought to the attention of Judge Ellis. Plaintiff submitted a letter in response asking the Court to grant him leave to amend in the event that the motion to dismiss is granted. The Court has reviewed the Report de novo, as required by 28 U.S.C. § 636(b)(1). The Court adopts the Background section of the Report, familiarity with which is presumed for purposes of this opinion. The Court also adopts the Report as to Lieutenant Goeway, but writes separately as to Officer Schweikhard and Lieutenant Buonato. For the reasons stated below, the motion to dismiss is granted and leave to amend the complaint is granted in part and denied in part.
A court may dismiss a claim pursuant to Rule 12(b)(6) if "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In evaluating a motion to dismiss for failure to state a claim, a court must accept as true the factual allegations contained in the complaint. See Cohen v. Koenig, 25 F.3d 1168, 1171 (2d Cir. 1994). When the plaintiff is proceeding pro se, as in the instant action, a court should hold the complaint to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). To survive a motion to dismiss, a plaintiff asserting a claim under 42 U.S.C. § 1983 must allege that (1) "the conduct complained of was committed by a person acting under color of state law," and (2) "this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981).
Plaintiff makes two claims under § 1983. He contends first that defendants deprived him of liberty without due process of law in violation of the Fifth and Fourteen Amendments, and second that defendants placed him in administrative segregation in retaliation for exercising his First Amendment rights. Defendants moved to dismiss both claims.
Where an inmate is confined pending a disciplinary hearing or a superintendent's hearing, the hearing must be commenced as soon as is reasonably practicable following the inmate's initial confinement pending said disciplinary hearing or superintendent's hearing, but, in no event may it be commenced beyond seven days of said confinement without authorization of the commissioner or his designee.
N.Y. Comp. Codes R. & Regs. tit. 7, § 251-5.1(a) (1995). Defendants argue that plaintiff's complaint does not state a cause of action because it only alleges that defendants violated prison regulations and that such violations do not implicate a liberty interest protected by the Constitution. Under the Supreme Court's decision in Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), the Court must dismiss plaintiff's due process claim.
To state a claim for denial of procedural due process, a plaintiff must establish that: (1) he possessed a liberty interest protected by the Constitution or federal statute; and (2) the requisite process was not provided before he was deprived of that interest. See id., 115 S. Ct. at 2300-02; Ragland v. Crawford, 1997 U.S. Dist. LEXIS 1245, *9, 1997 WL 53279, at *3 (S.D.N.Y. 1997). In Sandin, the Supreme Court held that the mere enactment of a state statute or regulation does not necessarily create a liberty interest implicating a due process violation. See Sandin, 115 S. Ct. at 2301. To establish the existence of a protected liberty interest, an inmate plaintiff must show that his confinement created an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," and that, through the enactment of a statute or regulation, the state has granted its inmates a protected liberty interest in remaining free from such confinement. Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (quoting Sandin, 115 S. Ct. at 2300).
The Sandin Court held that the inmate plaintiff did not have a liberty interest in remaining free from thirty days of disciplinary confinement. The Court of Appeals for the Second Circuit has not addressed the implication of Sandin on administrative confinement but has stated that "Sandin may be read as calling into question the continuing viability of our cases holding that New York regulations afford inmates a liberty interest in remaining free from administrative segregation." Rodriguez v. Phillips, 66 F.3d 470, 480 (2d Cir. 1995); cf. Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (holding that a twelve day confinement in special housing unit and an eleven month confinement in close supervision unit is not a deprivation of a significant liberty interest). District Courts have extended Sandin's analysis to administrative segregation. See Santana v. Keane, 1996 U.S. Dist. LEXIS 11795 at *20, 1996 WL 465751, at *6 (S.D.N.Y. 1996) (explaining that "although Sandin addressed disciplinary segregation, the case is still controlling in the present matter involving administrative segregation"); Powell v. Scully, 1996 U.S. Dist. LEXIS 3944 at *9, 1996 WL 145962, at *3 (S.D.N.Y. 1996) (stating that there was "no reason why [administrative segregation] should not be considered as a less 'atypical' less 'significant deprivation' than [disciplinary segregation]"); Arce v. Walker, 907 F. Supp. 658, 662 (W.D.N.Y. 1995) (finding "no ...