The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Lawrence E. Kahn, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Joaquin R. Winfield alleges that Defendant Walter Bishop*fn1 subjected him to excessive force, that Defendant Nancy Marocco*fn2 conducted a flawed disciplinary hearing, and that Defendant David LeClair wrongfully imposed a restricted diet on him and failed to respond properly to his grievances. Currently pending before the Court is the motion of Defendant David LeClair*fn3 to dismiss for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6). (Dkt. No. 14.) For the reasons that follow, I recommend that Defendant's motion be granted.
Plaintiff alleges that he was issued a misbehavior report on November 26, 2006, for refusing to return his lunch tray. (Dkt. No. 1 at 8, 10.) Pending a hearing on the misbehavior report, Defendant LeClair authorized staff to place Plaintiff on a restricted diet from November 27, 2006, to December 3, 2006. Id. at 10. The hearing on the misbehavior report was held on December 7, 2006. Id. at 9. The hearing officer imposed a penalty of seven days of restricted diet. Id. at 11. Defendant LeClair issued a memo to the facility's health services director stating that Plaintiff would be on a restricted diet from December 14 through December 20 as a result of the December 7 hearing. Id. at 11-12. Although it is not entirely clear from the complaint, it appears that Plaintiff continuously received the restricted diet from November 27 through December 20. Plaintiff appears to allege that, essentially, he was punished more than once for the conduct alleged in the misbehavior report because he received the restricted diet for longer than seven days.*fn4
Plaintiff alleges that Defendant Bishop subjected him to excessive force on December 5, 2006. (Dkt. No. 1 at 4-5.) Plaintiff alleges that he sent a written complaint about this incident to Defendant David LeClair. Id. at 6.
On December 14, 2006, Plaintiff was served with another misbehavior report. (Dkt. No. 1 at 14-15.) In preparation for his disciplinary hearing, Plaintiff requested a videotape of the incident. Id. at 15. Defendant Nancy Marocco conducted the disciplinary hearing. Id. She adjourned and continued the hearing at least twice. Id. at 17-18. Ultimately, she denied Plaintiff's request to call an inmate witness, found a photograph of Plaintiff's wrist inadmissible, found Plaintiff guilty, and sentenced him to nine months of SHU confinement with loss of privileges and good time credits. Id. at 15, 21.
Plaintiff alleges that he informed Defendant LeClair of his "inferred fear . . . of further punitive informalities resulting from both the 8th U.S. Constitutional Amendment tort per se and also the past shown and highly prone history of losing/or erasing the B-1 c. (S.H.U.) video recordings of probative value." (Dkt. No. 1 at 7.)
Plaintiff alleges that Defendants' conduct violated his constitutional rights. (Dkt. No. 1.) Plaintiff alleges that Defendant LeClair, as the Superintendent of Great Meadow Correctional Facility, should be held responsible because he "managed . . . daily operation[s] and executed both the N.Y. State Department of Corrections and the prison policies." (Dkt. No. 1 at 4.)
Defendant LeClair moves to dismiss the claims against him. (Dkt. No. 14.) Plaintiff has opposed the motion. (Dkt. No. 19.)
II. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM
A defendant may move to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted.
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (emphasis added). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . 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 shown -that the pleader is entitled to relief." Id. at 1950 (internal citation and punctuation omitted).
"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. ...