# Harley v. Guida

> District Court, E.D. New York · July 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10304654

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10304654

## How later opinions describe it (automated extraction)

- explaining that the Supreme Court extended the scope of the Fourth Amendment to cover non-law enforcement conduct, including conduct for “some sort of investigatory or administrative purpose designed to elicit a benefit for the government”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------------------------------x

PEGGY HARLEY, et al.,1

Plaintiff, MEMORANDUM & ORDER
19-cv-6152 (EK)(LB)
- against -

EDWARD F. GUIDA, JR.,
in his individual capacity,
et al.

Defendants.

-------------------------------x

ERIC KOMITEE, United States District Judge:
Plaintiff Peggy Harley, pro se, filed this 42 U.S.C.
§ 1983 action on October 28, 2019. Plaintiff’s claims
predominantly arise from an alleged incident on April 17, 2019,
when a New York City Housing Authority (“NYCHA”) Marshal, Edward
F. Guida, Jr., unlawfully entered her apartment in the
Queensbridge Houses, a public housing development in Long Island
City. She brings this complaint against Guida and three other
NYCHA employees – Joyce Tseng2 (the Queensbridge Houses manager),

1 Although the caption names several plaintiffs, the complaint lists Peggy
Harley as the only plaintiff, see Compl. at 7, ECF No. 1, and only Peggy
Harley signed the complaint. Accordingly, the Court deems this action to be
brought by Peggy Harley. See Fed. R. Civ. P. 11(a) (“Every pleading, written
motion, and other paper must be signed by at least one attorney of record in
the attorney’s name—or by a party personally if the party is
unrepresented.”).

2 According to the complaint, Joyce Tseng may also go by “Hsui Tseng.” Compl.
at 7.
John Doe (a “maintenance” worker), and Jane Doe (an “office
worker/management”); two police officers who responded to the
incident – Officers Murn and Malik;3 the New York City Police
Department; and two entities, “City Marshal Edward Guida
Incorporated” and “Marshal City of New York Badge #14

Incorporated.”
Plaintiff’s request to proceed in forma pauperis (IFP)
is granted. 28 U.S.C. § 1915. However, for the reasons set
forth below, Plaintiff’s complaint is dismissed in part,
pursuant to 28 U.S.C. § 1915(e)(2)(B).
I. Background

A. Factual Allegations
The following facts taken from the complaint are
assumed to be true. Plaintiff lived in an apartment in
Queensbridge Houses, operated by NYCHA, in Long Island City,
where her family resided for more than fifty years. Compl. at
4, 8, ECF No. 1.4 By the time of the alleged incident, Plaintiff
had been involved in a long-standing eviction dispute with
NYCHA. Id. at 8, 9. One or more family members living with her
had filed for bankruptcy five times, resulting in a stay of the
eviction proceeding. Id.

3 The complaint only refers to officers Murn and Malik by their last names.

4 Page citations refer to the complaint’s internal pagination, rather than
paragraph numbers or the pagination assigned by ECF.
On April 17, 2019, at approximately 3:00 p.m.,
Plaintiff walked out of her bedroom to see Guida standing in her
living room. Id. at 4. She told Guida, “Get out, you have no
business here, I am not dressed,” and asked him to exit while
she looked for a document from the Bankruptcy Court. Id. He

walked out of the apartment, while “joking” and saying, “you
look dressed to me.” Id. at 5. Plaintiff locked the door;
however, while Plaintiff was looking for the document, Guida
“unlock[ed]” her door and entered the apartment again. Id. One
of Plaintiff’s family members told Guida to leave, and Guida
exited but “stuck his foot in the door” to keep it open. Id.
When Plaintiff’s family asked to see a warrant, Guida replied “I
got a warrant,” but never produced it. Id. Also outside of
Plaintiff’s apartment at this time was “Guida’s ten (10) plus
person displacing crew,” including Jane Doe and John Doe, who
had a key to her apartment. Id. at 6. Plaintiff alleges these
NYCHA officials were acting at the direction of Tseng. Id.

Plaintiff found the bankruptcy document and gave it to
Guida, which she alleges had been sent to him by fax and mail
and proved he “did not have jurisdiction to enter.” Id. at 5.
She attaches to the complaint a photo of Guida looking at the
document. Id. at Exhibit A. Guida told her he had never
received it and said to Plaintiff, “you got your stay.” Id.
at 5.
Plaintiff then called the police, and “Guida’s crew
scurried away.” Id. New York Police Department (“NYPD”)
officers Murn and Malik responded. Id. at 6. Murn took down
Plaintiff’s complaint, but “did not submit it to the Police
station.” Id. Plaintiff alleges these officers were “personal

friends” of Guida, citing a photograph of Guida and Malik on
Guida’s LinkedIn page. Id. 6-7, Exhibit F3.
It is not clear what happened immediately after this
event; however, Plaintiff says that her family received a notice
of eviction on June 26, 2019. Id. at 8. She states that
certain of the defendants sent in “a moving crew to evict [her]
family along with the help of NYCHA employees,” id., but does
not indicate if, or when, her family was evicted. Over the
years, Plaintiff alleges that Tseng had “unjustly” taken her
family into court “more than 50 times,” that Tseng targeted her
family as part of the “gentrification process in the Long Island
City area,” and that Tseng was put “in place to remove people of

color” from the area. Id.
The complaint goes on to allege that between June 2019
and October 2019, unnamed police officers engaged in “bullying”
and “scare tactics” when they parked their vehicles in front of
Plaintiff’s building and flashed their lights into her apartment
windows. Id. at 16. She also saw Malik “leaning on the gates
directly facing” her building, which, she alleges, was an
“intimidation tactic.” Id.
Plaintiff reports that she suffers from anxiety
following Guida’s unauthorized entrance. She cannot sleep and
is “startled by every sound while at home, thinking that it is

[Guida] breaking in and [v]iolating [her] family again.” Id.
at 11. She and her family are “constantly looking over [their]
shoulders” wondering if they will be “ambushed by Guida, his
crew, or police officers.” Id. at 13.
B. Claims for Relief
Plaintiff seeks millions of dollars in damages due to
federal and state-law violations. She asserts general
constitutional abuses – that defendants “violat[ed] the
Constitution” and her “family’s civil rights.” See, e.g., 13.
Against Guida,5 she alleges “negligence,” “fraud,” “harassment,”
“burglary,” “unlawful entry” without a warrant, “trespassing,”
and invasion of “her family’s privacy and religious protocol,”

and, it seems, intentional infliction of emotional distress.
Id. at 5, 13-14. She also claims that “Marshal Guida’s

5 The complaint also raises a number of other allegations related to Guida and
his family. In 2010, Plaintiff states that Guida’s father, now deceased,
evicted certain family members from another Long Island City residence, and
they “have yet to figure out what happened to the four (4) new stoves and (4)
refrigerators that were in that house.” Compl. at 10. Plaintiff also
includes a series of general allegations related to a funeral home run by the
Guida family and its involvement in apparent organ harvesting. Id.
Plaintiff, however, does not seek relief as to any of these claims.
Corporation” is part of an “ongoing conspiracy,” id. at 14,
although does not identify what that entity is or the conspiracy
in which it is alleged to be involved. She brings claims
against Tseng, John Doe, and Jane Doe for “aiding, abetting, and
facilitating” the “illegal break in,” and against Tseng for

“fraud,” “harassment”, and other intentional torts. Id. at 14-
15. She also sues NYCHA for “failure to supervise” and for
“failing to take basic and reasonable steps to protect dwellers
from harm.” Id. at 12, 14. She identifies no claim against
“Marshal City of New York Badge #14 Incorporated.”
As to the police defendants, she alleges they have
“conspired” with and “aid[ed] and abet[ted]” Guida “to conceal a
crime” by omitting to file or investigate her complaint of the
April 17, 2019 incident. Id. at 15. She also alleges that
Malik and other unnamed officers engaged in “intimation” and
“threats” towards her and her family. Id. at 15-16. She
asserts the NYPD failed to supervise its employees and

“obstruct[ed] justice.” Id. at 13.
In addition to compensatory damages, she seeks a
“declaratory judgment,” but does not explain what for. Id. at
16. She also demands that Guida, Tseng, Jane Doe, John Doe,
Malik, and Murn be fired. Id. at 13-16.
II. Standard of Review

Pro se complaints are “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007). However, they must still
plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). Although the Court assumes all factual allegations
contained in the complaint to be true, this tenet is
inapplicable to “legal conclusions” and “mere conclusory
statements.” Id.
Under 28 U.S.C. § 1915(e)(2)(B), the Court must
dismiss an in forma pauperis action if it determines that the
action “(i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief from a defendant who is immune from such relief.” An
action “is frivolous when either: (1) the factual contentions
are clearly baseless, such as when allegations are the product

of delusion or fantasy; or (2) the claim is based on an
indisputably meritless legal theory.” Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (cleaned up).
III. Discussion

A. Section 1983
To assert a claim under Section 1983, a plaintiff must
establish that a person acting under color of state law deprived
her of rights, privileges, or immunities guaranteed by the
Constitution or federal law. See, e.g., Parratt v. Taylor, 451
U.S. 527, 535 (1981). In the complaint, Plaintiff identifies no
specific constitutional provision or federal law that she
believes the defendants violated. The Court must therefore read

the complaint liberally to determine whether Plaintiff alleges a
constitutional claim and, if so, whether that claim may proceed
past IFP review pursuant to 28 U.S.C. § 1915(e)(2)(B).
1. NYCHA Individual Defendants

The gravamen of Plaintiff’s complaint is that on
April 17, 2019, Guida, a city official, entered her apartment
without a warrant or consent, with the aid of other city
employees, John Doe and Jane Doe. This allegation clearly
sounds in the Fourth Amendment. Absent consent or another
applicable exception, a warrantless entry is “per
se unreasonable under the Fourth Amendment,” Ehrlich v. Town of
Glastonbury, 348 F.3d 48, 53 (2d Cir. 2003), including in the
context of an eviction proceeding. See Soldal v. Cook Cty.,
Ill., 506 U.S. 56, 69 (1992) (“[T]he right against unreasonable
seizures would be no less transgressed if the seizure of the
house was undertaken to collect evidence, verify compliance with
a housing regulation, effect an eviction by the police, or on a
whim, for no reason at all.”); see also Perry v. Sheahan, 222
F.3d 309, 316 (7th Cir. 2000) (stating that Soldal found Fourth
Amendment limitations to apply “even during an eviction,”
including “after an eviction is stayed”); Poe v. Leonard, 282
F.3d 123, 137 (2d Cir. 2002) (explaining that the Supreme Court
extended the scope of the Fourth Amendment to cover non-law
enforcement conduct, including conduct for “some sort of

investigatory or administrative purpose designed to elicit a
benefit for the government”). Plaintiff alleges that Guida,
with assistance of Jane Doe and John Doe, entered her apartment
twice without consent; that Guida did not produce a warrant; and
that there was no basis for a warrant, in any event, because any
eviction proceeding had been stayed due to multiple bankruptcy
filings by her family members. The Fourth Amendment claim may
therefore proceed past IFP review against Guida, Jane Doe, and
John Doe.
The Fourth Amendment claim against Tseng, however,
fails to state a basis for relief. To be liable for a Section
1983 violation, Plaintiff must show “each of the named

defendants was personally involved in the wrongdoing or
misconduct.” See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.
2006). A supervisor like Tseng may be held personally liable
only if she was a “direct participant” in the constitutional
violation, which “includes a person who authorizes, orders, or
helps others to do the unlawful acts, even if he or she does not
commit the acts personally.” Terebesi v. Torreso, 764 F.3d 217,
234 (2d Cir. 2014). But Plaintiff alleges no plausible facts
concerning Tseng’s personal involvement or direct participation.
Instead, she makes conclusory statements that Tseng
“spearheaded” the entry. Plaintiff also alleges Tseng was
responsible for fifty prior “unjust” eviction proceedings

against the family, but alleges no facts as to those events.
The Fourth Amendment claim against Tseng is dismissed, with
leave to replead.
In addition, based on a liberal reading of the
complaint, Plaintiff appears to contend that Tseng engaged in
selective enforcement in violation of the equal protection
clause of the Fourteenth Amendment. See Adler v. Kent Vill.
Hous. Co., 123 F. Supp. 2d 91, 98 (E.D.N.Y. 2000) (analyzing,
under the selective enforcement doctrine, the claim that
defendants targeted Jewish tenants for eviction). To state a
selective enforcement claim, Plaintiff must first show that she,
“compared with others similarly situated, was selectively

treated”; and second, “that such selective treatment was based
on impermissible considerations such as race, religion, intent
to inhibit or punish the exercise of constitutional rights, or
malicious or bad faith to injure a person.” LaTrieste
Restaurant & Cabaret Inc. v. Village of Port Chester, 40 F.3d
587, 590 (2d Cir. 1994).
Here, Plaintiff alleges that Tseng brought her family
to court “more than 50 times” as part of an effort to “remove
people of color” from Long Island City. However, Plaintiff
makes no other factual assertions concerning how Tseng targeted
her family or showing that this conduct was based on race, and

she makes no factual allegations regarding similarly situated
individuals. Plaintiff’s equal protection claim against Tseng
is dismissed, with leave to amend.
2. Officers Murn and Malik

Reading the complaint liberally, the Court can
identify no theory to underpin a constitutional claim against
either of the NYPD officers. The complaint alleges no more than
the officers’ mere presence at the scene. With no affirmative
misconduct alleged, these claims must be dismissed. See Town of
Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 760, 765 (2005)
(noting the “well established tradition of police discretion”);
Morris v. City of N.Y., No. 14-CV-1749, 2015 WL 1914906, at *5
(E.D.N.Y. Apr. 27, 2015) (“[P]olice officers have no affirmative
duty to investigate complaints, as the government and its agents
are under no general duty to provide public services or
protection to individual citizens.”). It follows that any claim
under 42 U.S.C. § 1985 that the officers “conspired” with and
“aid[ed] and abet[ted]” Guida “to conceal a crime,” also fails.
Also, there is no cognizable Section 1983 claim for
intimidating or threatening behavior. See Politi v. City of New
York, No. 03-CV-2112, 2005 WL 8156892, at *3 (E.D.N.Y. Dec. 12,

2005) (noting that the tort of intentional infliction of
emotional distress is not cognizable under Section 1983); see
also Jackson v. Goord, No. 96-CV-6816, 1997 WL 728243, at *4
(S.D.N.Y. Nov. 20, 1997) (“The averment that a tort was
committed under color of state law is not enough. Courts have
consistently held that torts by themselves do not violate the
Eighth Amendment.”). The presence of Malik and other officers
in the Queensbridge Houses development, as pleaded by Plaintiff,
does not violate her constitutional rights.
Therefore, defendants Malik and Murn are dismissed.
3. NYCHA

Plaintiff alleges that NYCHA6 failed “to supervise and
oversee it’s [sic] employees” and failed “to take basic and
reasonable steps to protect dwellers from harm.” A municipal
entity, such as NYCHA, is liable under Section 1983 only if a
plaintiff can show a municipal policy or custom that caused the

6 Unlike the NYPD, the NYCHA is a suable entity. See Southerland v. Woo, No.
99-CV-3329, 2013 WL 5532628, at *1 (E.D.N.Y. Oct. 3, 2013) (“NYCHA is a
separate municipal corporation with its own charter.”).
deprivation of her constitutional rights. See Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 690-91 (1978). Section 1983 does
not reach respondent superior liability. Id. In addition, a
municipality may be liable for failure to supervise only where
the plaintiff establishes that defendant “should have known

their inadequate supervision was so likely to result in the
alleged deprivations so as constitute deliberate indifference.”
Reynolds v. Giuliani, 506 F.3d 183, 193 (2d Cir. 2007). Here,
Plaintiff does not allege that NYCHA maintains a policy or
practice which led to the deprivation of her rights, or that
NYCHA’s actions constituted deliberate indifference.
Plaintiff’s constitutional claims against NYCHA are dismissed,
with leave to amend.
4. NYPD

Plaintiff cannot sue the NYPD. Under Rule 17(b)(3) of
the Federal Rules of Civil Procedure, a municipal entity’s
“capacity” to be sued in federal court is generally determined
by the law of the state in which the district court is
located. Here, the relevant authority is the New York City
Charter, which provides that actions and proceedings to recover
penalties for legal violations shall be brought against the City
of New York and not any agency thereof, except where otherwise
provided by law. See N.Y.C. Charter Ch. 17, § 396. It is well
recognized in this Circuit that agencies of New York City are
not “suable” entities, including in 1983 actions. See Jenkins
v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see
also Baily v. New York City Police Dept., 910 F. Supp. 116, 117
(E.D.N.Y 1996). The NYPD is an agency of New York City, and
therefore it cannot be sued. The NYPD is dismissed with

prejudice.
5. Other Entities

Plaintiff also names “City Marshal Edward Guida
Incorporated” and “Marshal City Of New York Badge #14
Incorporated” as defendants. It is not clear to what entities
she refers, although both seem related to Guida – whose badge
number is fourteen, according to Plaintiff. If they are private
corporations, then Section 1983 does not apply, because they are
not “persons acting under color of state law.” These defendants
are dismissed with prejudice.
B. State-Law Claims
The Court declines to exercise supplemental
jurisdiction over the state-law claims against the defendants as
to whom no federal claims remain – namely, Tseng, Murn, Malik,
NYCHA, NYPD, “City Marshal Edward Guida Incorporated,” and
“Marshal City Of New York Badge #14 Incorporated.” See
28 U.S.C. § 1367(c)(3).
As to Guida, Jane Doe, and John Doe, Plaintiff alleges
a variety of state criminal-law claims. These criminal claims
fail, and are frivolous, because they are based on New York
State criminal statutes that create no private right of action.
See, e.g., N.Y. Penal Law § 140.30.
Against Guida, Plaintiff also alleges harassment,
fraud, negligence, trespass, invasion of privacy, and, it seems,

intentional infliction of emotional distress. New York does not
recognize a common-law cause of action for harassment.
Edelstein v. Farber, 27 A.D.3d 202, 202 (N.Y. App. Div. 2006).
The tort claim for fraud is frivolous, because Plaintiff makes
no allegations that she relied on any material misrepresentation
by Guida. See Garendean Realty Owner, LLC v. Lang, 175 A.D.3d
653, 653 (N.Y. App. Div. 2019) (“The elements of a cause of
action [alleging] fraud require a material misrepresentation of
a fact, knowledge of its falsity, an intent to induce reliance,
justifiable reliance by the plaintiff and damages.”). The tort
claims for negligence, trespass, invasion of privacy, and
intentional infliction of emotional distress, however, may

proceed past IFP review. The Court retains jurisdiction over
these claims pursuant to 28 U.S.C. § 1367(a).
IV. Conclusion

Plaintiff’s request to proceed IFP is granted pursuant
to 28 U.S.C. § 1915. For the reasons set forth above,
defendants Tseng, Murn, Malik, the NYCHA, “City Marshal Edward
Guida Incorporated,” and “Marshal City Of New York Badge #14
Incorporated” are dismissed. 28 U.S.C. § 1915(e)(2)(B). The
NYPD is dismissed with prejudice. Id. The Court grants
Plaintiff leave to amend the complaint with respect to the
Fourth and Fourteenth Amendment claims against Tseng, as well as
the Monell claim against NYCHA. The amended complaint must be

filed within thirty days of the date of this Order.
The Fourth Amendment claim against defendants Guida,
Jane Doe, and John Doe may proceed, in addition to the sate-law
claims for negligence, trespass, invasion of privacy, and
intentional infliction of emotional distress against Guida. The
Court directs the Clerk of Court to issue a summons against
Guida and directs the United States Marshals Service to serve
the summons and complaint on him.7 The Court refers this matter
to Magistrate Judge Lois Bloom for pretrial supervision.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal would not be taken in good faith and therefore

7 Plaintiff has not provided enough information about John Doe and Jane Doe to
enable the Court to assist in identifying them at this time. Thus, the U.S.
Marshals will be unable to serve these parties until they are identified.
in forma pauperis status is denied for purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

/s Eric Komitee_______ ________
Eric Komitee
United States District Judge

Dated: July 21, 2020
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304654. Public record. Not legal advice.