"[C]riticism of governmental agencies is protected speech under the First Amendment." Olesen v. Morgan, No. 1:06-CV-959, 2008 WL 5157459, at *4 (N.D.N.Y. Dec. 8, 2008) (quoting Economou v. Butz, 466 F.Supp. 1351, 1361 (S.D.N.Y. 1979) (footnote omitted)). When adverse action is taken by governmental officials against a person being held in custody, motivated by his or her exercise of a right protected under the Constitution, including the free speech provisions of the First Amendment, a cognizable retaliation claim under 42 U.S.C. ยง 1983 lies.
Moreover, because "[q]ualified immunity cannot be based on a simple assertion by [defendants] without supporting evidence of the adverse effect of the speech on workplace efficiency," Shockency v. Ramsey County, 493 F.3d 941, 949-50 (8th Cir. 2007) (quotation marks and ellipsis omitted), the Court must deny defendants' motion to dismiss on qualified immunity grounds "because it is premature to determine the issue . . . based only on the factual allegations in the complaint." Olesen v. Morgan, No. 06-CV-959, 2008 WL 5157459, at *6 (N.D.N.Y. Dec. 8, 2008) (denying motion to dismiss First Amendment Bivens claim); see, e.g., Gustafson v. Jones, 117 F.3d 1015, 1021 (7th Cir. 1997) (reversing dismissal of claims on qualified immunity grounds where pleadings "show that the speech was on a matter of public concern and they do not reveal how the [employer] might go about showing its interest in nevertheless suppressing it"). For these reasons, the complaint properly states a violation of plaintiff's clearly established rights under the First Amendment, and the individual defendants are not entitled to qualified immunity with respect to Count One.
nstitutional provision, such as the First Amendment, encompasses the proscribed government conduct, a plaintiff cannot maintain a section 1983 suit predicated on broad notions of substantive due process." Mace v. County of Sullivan, No. 05-CV-2786, 2009 WL 413503, at *3, *5 (S.D.N.Y. Feb. 11, 2009) (dismissing substantive due process claim where plaintiff also sought redress for conduct allegedly constituting the basis of plaintiff's claim under the First Amendment); see also Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005) (explaining that "where a specific constitutional provision prohibits government action, plaintiffs seeking redress for that prohibited conduct in a ยง 1983 suit cannot make reference to the broad notion of substantive due process," and holding that plaintiff could not pursue substantive due process claim where "[w]hat is allegedly shocking about what the defendants[] did is [among other things] their intent to violate plaintiff's fundamental First Amendment rights"); Olesen v. Morgan, No. 06-CV-959, 2008 WL 5157459, at *6 (N.D.N.Y. Dec. 8, 2008) (holding that substantive due process claim was foreclosed where the alleged conduct was explicitly prohibited under, among other constitutional provisions, the First Amendment); see generally Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) ("Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." (internal quotation marks omitted)).