16-1127-pr
Telesford v. Annucci


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 22nd day of May, two thousand seventeen.

PRESENT: REENA RAGGI,
                 SUSAN L. CARNEY,
                                 Circuit Judges,
                 LEWIS A. KAPLAN,
                                 District Judge.*
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MARCUS TELESFORD,
                                         Plaintiff-Appellant,

                        v.                                               No. 16-1127-pr

ANTHONY             ANNUCCI,           Acting       Commissioner,
CHRISTOPHER MILLER, Superintendent, Great
Meadow Correctional Facility, STEPHEN BRANDON,
Superintendent, Great Meadow Correctional Facility, MR.
EASTMAN, Deputy Superintendent of Security, Great
Meadow Correctional Facility, CAPTAIN GOODMAN,
Great Meadow Correctional Facility, SERGEANT
BASCUE, Great Meadow Correctional Facility,
                                          Defendants-Appellees.
----------------------------------------------------------------------


*
 Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.

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FOR APPELLANT:                            MARCUS TELESFORD, pro se, Malone, New
                                          York.

       Appeal from a judgment of the United States District Court for the Northern

District of New York (Mae A. D’Agostino, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the March 29, 2016 judgment of the district court is AFFIRMED.

       Plaintiff Marcus Telesford is presently incarcerated by New York State following

his conviction for second-degree robbery and sentencing as a persistent violent felony

offender.1 He here appeals pro se from the sua sponte dismissal of his 42 U.S.C. § 1983

complaint against various state prison officials for failure to state a claim upon which

relief may be granted. See 28 U.S.C. §§ 1915(e)(2), 1915A. Telesford alleges that,

while he was incarcerated in a special housing unit (“SHU”), defendants used security

cameras to record him in the nude as he entered and exited prison showers, thereby

violating his rights under the Fourth, Eighth, and Fourteenth Amendments.        We assume

the parties’ familiarity with the facts and record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

       We review de novo a district court’s sua sponte dismissal of claims, accepting the

facts alleged in the complaint as true and drawing all inferences in the plaintiff’s favor.

See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).             To survive dismissal, a

complaint must plead “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), and we will not accept as true

1
  See People v. Telesford, 2 A.D.3d 757, 758, 770 N.Y.S.2d 118, 118 (2d Dep’t 2003)
(affirming conviction and 18-years-to-life sentence).

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allegations stating only “legal conclusions,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Nevertheless, we afford a pro se litigant “special solicitude” and interpret his complaint

“to raise the strongest claims that it suggests.” Hill v. Curcione, 657 F.3d 116, 122 (2d

Cir. 2011) (alterations and internal quotation marks omitted).         We will reverse the

dismissal if “a liberal reading of the complaint gives any indication that a valid claim

might be stated.” Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003).

1.     Fourth and Eighth Amendment Claims

       Insofar as Telesford claims that the alleged recordings violated the Fourth

Amendment, our review is informed by the Supreme Court’s recognition that “[a] right of

privacy in traditional Fourth Amendment terms is fundamentally incompatible with the

close and continual surveillance of inmates and their cells required to ensure institutional

security and internal order.”      Hudson v. Palmer, 468 U.S. 517, 527–28 (1984).

Nevertheless, as we recently reiterated, inmates “retain a limited right to bodily privacy.”

Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016). To state a cognizable privacy claim, an

inmate must allege that (1) he “exhibited an actual, subjective expectation of bodily

privacy,” and (2) prison officials lacked “sufficient justification to intrude on the inmate’s

[F]ourth [A]mendment rights.” Id. (alterations and internal quotation marks omitted).

Telesford’s claim fails because his complaint effectively acknowledges that he had no

expectation of privacy in the use of prison showers.       See Johnson v. Phelan, 69 F.3d

144, 147 (7th Cir. 1995) (“Cells and showers are designed so that guards can see in, to

prevent violence and other offenses. Prisoners dress, undress, and bathe under watchful

eyes. Guards roaming the corridors are bound to see naked prisoners.”). He states that

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corrections officers in nearby “bubble stations” personally observe prisoners enter and

exit the showers and monitor live video feeds from the complained-of cameras. He

raises no objection to either of these surveillance methods. He complains only about the

alleged recording of the video feeds. 2      Notably, he does not allege any improper

subsequent viewing of the recordings. Because Telesford had no expectation of privacy

and prison officials had a sufficient security justification for visually monitoring prison

showers, and because no abusive use of the recording is alleged, Telesford cannot state a

Fourth Amendment claim based on the alleged recording of what was permissibly seen.

       While the Eighth Amendment protects prisoners from “calculated harassment

unrelated to prison needs,” Hudson v. Palmer, 468 U.S. at 530, Telesford’s assertions that

the challenged surveillance amounted to such are wholly conclusory and unsupported by

the factual allegations in the complaint, see Ashcroft v. Iqbal, 556 U.S. at 678.

       Accordingly, we affirm the dismissal of both Telesford’s Fourth and Eighth

Amendment claims.

2.     Equal Protection Claim

       Telesford’s equal protection claim alleges that the challenged video surveillance in

the SHU F-Block at Great Meadow Correctional Facility was not conducted in the SHU

B-Block at the same facility, from which he was recently transferred. We construe this

claim to rely on a “class-of-one” theory, Appellant’s Br. 21, which requires, inter alia,

2
  The prison’s responses to Telesford’s internal grievances, which are annexed to and
acknowledged in his complaint, see DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111
(2d Cir. 2010) (stating such documents may be considered on motion to dismiss),
consistently denied the presence of cameras in areas where inmates showered or were
nude. For present purposes, however, we assume Telesford’s allegations to be true.

                                              4
that Telesford plead “an extremely high degree of similarity” to proposed comparators

such that “no rational person could regard [his] circumstances . . . to differ from those of

a comparator to a degree that would justify the differential treatment on the basis of a

legitimate government policy.” Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d

55, 59–60 (2d Cir. 2010) (internal quotation marks omitted).

       Even liberally construing Telesford’s complaint, we cannot conclude that he

pleads the requisite high degree of similarity between F-Block and B-Block generally, or

specifically as pertains to him.    While both blocks are SHUs, the most restrictive

confinement in the New York State prison system, that by itself does not admit an

inference that all SHUs, much less the inmates housed therein, are highly similar.3 In

any event, where the government has a legitimate penological concern—avoiding

concealment of contraband by restrictively confined prisoners—it does not violate equal

protection to address that problem in part rather than as a whole.                      See

Jankowski-Burczyk v. I.N.S., 291 F.3d 172, 179 (2d Cir. 2002) (“It is no requirement of

equal protection that all evils of the same genus be eradicated or none at all.” (internal

quotation marks omitted)). In this regard, we note that Telesford does not assert that he

is treated differently than other F-Block prisoners, which seems a more apt comparison


3
  For example, some SHU cells are double-occupancy with their own remotely operated
shower facilities. See State of N.Y. Dep’t of Corr. Servs., Prison Safety in New York 17
(2006),     http://www.doccs.ny.gov/PressRel/06commissionerrpt/06prisonsafetyrpt.pdf.
Further, Telesford does not allege why he was housed in an SHU or transferred from
B-Block to F-Block, but court filings suggest that, even in the SHU, Telesford previously
sought to conceal items on his person. See Complaint at 3, Telesford v. Tamer, No.
14-cv-1209 (N.D.N.Y. Oct. 3, 2014) (acknowledging concealment of pen in body cavity
while housed in Clinton Correctional Facility SHU).

                                             5
group.     Accordingly, we affirm the district court’s dismissal of Telesford’s equal

protection claim.

3.       Conclusion

         We have considered Telesford’s other arguments and conclude that they are

without merit.      Accordingly, the March 29, 2016 judgment of the district court is

AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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