OPINION & ORDER The plaintiff, Gregory Kuczinski, former Deputy Commissioner of the Investigations Division of the New York City Department of Correction (“DOC”), brings this action against the City of New York, Commissioner of the New York City Department of Investigation (“DOI”) Mark Peters, former DOI Inspector General Jennifer Sculco, DOI Assistant Commissioner Paul Cronin, and DOI Deputy Commissioner Michael Carrol in their individual and official capacities (collectively, the “defendants”). The plaintiff alleges violation of his right to free speech under the United States and New York State Constitutions, violation of his rights under the Fourteenth Amendment to the United States Constitution, and state law defamation. The defendants move to dismiss the Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b) (6) for failure to state a claim upon which relief can be granted. For the reasons explained below, the defendants’ motion is granted in part and denied in part.I.In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (b) (6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff’s favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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, 556 U.S. 662, 678 (2009). While courts should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id.A court may also consider documents incorporated by reference in the complaint as well as documents the plaintiff either had in the plaintiff’s possession or had knowledge of and upon which the plaintiff relied in bringing suit. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991).II.The following facts are taken from the Second Amended Complaint and the documents referenced therein, and are accepted as true for purposes of this motion to dismiss.In March 2015, the plaintiff was hired as Assistant Commissioner of the Investigations Division of the New York City DOC. (Second Am. Compl. (“SAC”)13.) In April 2016, he was promoted to Deputy Commissioner of that Division. (Id.15.)In September or October 2016, the New York City DOI asked the plaintiff to release ten DOC personnel for assignment to the DOI. (Id.16.) The plaintiff refused. (Id.17.)On January 23, 2017, the plaintiff assumed responsibility for the DOC Intelligence Bureau. (Id.
19-21.) The Intelligence Bureau is a division of the DOC that, among other things, gathers intelligence in order to prevent contraband from coming into New York City detention facilities and re-arrests inmates for crimes committed while in custody. (Id.20.)On February 25, 2017, the plaintiff was put in charge of the Analytical Intelligence Division.1 (Id.24.) This division was formed to investigate prisoner malfeasance by monitoring prisoners’ telephone calls and social media websites. (Id.27.) The Analytical Intelligence Division was formed on January 9, 2017, about a month and a half before the plaintiff took command. (Id.25.)Under the DOC’s rules and regulations, the Analytical Intelligence Division was prohibited from listening to certain inmate calls, including when the inmate was speaking to the inmate’s attorney, physician, or clergy member. (Id.30.) The defendants claim that the Analytical Intelligence Division was prohibited by Mayor’s Executive Order 16 from listening to calls between inmates and DOI investigators. (Defs.’ Mem. at 5-6). The plaintiff asserts that monitoring calls between inmates and DOI investigators was permissible. (SAC52.)On March 9, 2017, members of the DOI learned that the Analytical Intelligence Division had been listening to telephone calls between an inmate and a DOI investigator and that Analytical Intelligence Division personnel had continued listening to the calls even after learning of the connection to an investigation by the DOI. (Defs.’ Ex. A, at 3.) The plaintiff claims that the Analytical Intelligence Division was not under his control at the time these calls were placed and monitored. (SAC26.)The calls in question took place between January 9, 2017, and February 7, 2017. (Id.40.) During that time, the Analytical Intelligence Division was managed by Executive Agency Counsel Douglas Ziegler and Assistant Commissioner Keith Taylor. (Id.26.) On February 7, 2017, Mr. Ziegler informed the Commissioner of the DOC — referred to only as “DOC Commissioner Ponte” in the Second Amended Complaint — that there had been some “suspicious” inmate phone calls. (Id.41.) The plaintiff claims that Commissioner Ponte then asked the plaintiff to review and “vet” the suspicious phone calls. (Id.42.)Thereafter, the plaintiff went to a trailer on Rikers Island where Analytical Intelligence Division personnel conducted operations. (Id.60.) The plaintiff was briefed by unnamed Analytical Intelligence Division officers on the suspicious phone calls. (Id.61.) The Analytical Intelligence Division personnel told the plaintiff that the calls were “secured,” saved to disks, and that the conversations were “problematic.” (Id.
