United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION ON IN FORMA PAUPERIS
SCREENING PURSUANT TO 28 U.S.C. 1915 AND CERTIFICATION OF
CHARMIANE G. CLAXTON, UNITED STATES MAGISTRATE JUDGE
the Court, pursuant to Administrative Order
2013-05, is Plaintiff Paul Markowitz's
Complaint, which must be screened pursuant to 28 U.S.C. 1915
(“Section 1915”) as he is proceeding in forma
pauperis. The Section 1915 screening has been referred
to the United States Magistrate Judge for Report and
Recommendation. For the reasons set forth herein, it is
RECOMMENDED that Plaintiff's Complaint fails to state a
claim upon which relief may be granted and should be
DISMISSED pursuant to Section 1915. It is further RECOMMENDED
that the District Court certify pursuant to Rule 24(a) that
any appeal taken in this matter is not in good faith and may
not be taken in forma pauperis.
Complaint arises from events that occurred at a Kroger
grocery store on or about October 21, 2016 and that
eventually required a response from law enforcement.
Plaintiff alleges that, at approximately 5:00 p.m. on that
date, he was in the dining area of a Kroger store located at
3334 Raven, South Highland, Memphis, Tennessee. (Compl. at
3-4). Plaintiff alleges that he was
“quietly eating his purchased food” while working
on his laptop computer on “Advanced Academic
R&D” breast and prostate cancer research.
(Id. at 4). Plaintiff alleges that he “noticed
an abandoned backpack” located “2-3 tables in
front of him” and that, out of concern, he went to turn
it in to customer service. (Id.) Plaintiff states
that, “[d]uring such endeavors, ” a
“Hostile, violent Blatantly ‘Racial'
individual, ” who was a “Known and Violent
‘Vagrant & Panhandler'” and “Racial
Inciting antagonist, ” and who was known to this Kroger
Store and its employees and permitted to frequent the
premises, intentionally dumped a large cup of coffee on
Plaintiff's laptop computer. (Id.) Plaintiff
alleges that the spill “instantly” and
“permanently” destroyed it and its
“irreplaceable computer files, ” which he states
are “of significant monetary value.”
alleges that he “instantly” attempted to
“‘blot-off'” as much coffee as possible
and then proceeded to “Store Security” and
“Customer Care” to request assistance salvaging
his computer and “the numerous ‘Federally
Protected' Files and years of Arduous Bio-Medical
R&D's authored and owned by Plaintiff, ”
including Department of Defense privileged documents.
(Id.) Plaintiff alleges that store management
advised that their video systems were
“operational” and “functional” and
that they would seize and maintain the “numerous videos
in the store” that captured the incident.
(Id.) However, Plaintiff alleges that all of the
Kroger staff refused to assist him in any other way,
including in helping salvage his computer and his files.
(Id. at 5). Plaintiff states that the Kroger staff
also refused to contact police in an attempt to engage in
evidence destruction and to escape prosecution; instead,
Plaintiff alleges that the Kroger staff advised that he must
contact the police himself. (Id.) Plaintiff states
that “[s]uch outrageous[, ] willful inaction also
alleged the Assailant to eventually escape the premises and
states that he attempted to contact the Memphis Police
Department (“MPD”) on his cellular phone but
that, after approximately thirty minutes, the time on his
cellular phone expired. (Id. at 6). Plaintiff states
that he requested that store security do so, which they
refused. (Id.) Plaintiff requested to speak to a
store manager, who was summoned over a store loud speaker;
however, Plaintiff states that the manager, named A.J.,
“slowly arrived about an hour later, with NO concern of
the Assailant, nor incident and Plaintiff's damages and
Injuries.” (Id.) Plaintiff states that he was
eventually able to contact MPD despite the store's lack
of assistance. (Id.)
alleges that the Kroger store personnel also made no effort
to assist Plaintiff in cleaning up the large spill of coffee,
which remained several feet in diameter on the floor.
(Id.) Plaintiff alleges that, as he continued to try
to salvage his laptop computer and files, he slipped on the
coffee, further injuring his seriously torn knee.
(Id.) Plaintiff states that Kroger staff made no
efforts to assist him even after his injury. (Id. at
further alleges that, “[a]fter about an hour, a
Markedly deranged M.P.D. ‘Policeman' arrived
outside, ” who would later be identified as Officer
Ynguanzo. (Id. at 7) Plaintiff states that he
cordially walked outside to greet Officer Ynguanzo and
provide his report but that he immediately detected
“both a ‘Contorted Rage' expression on his
face, as well as the presence of a very strong alcoholic
beverage, from approximately two (2) feet away.”
(Id.) Plaintiff states that he agreed to a pat-down
by Officer Ynguanzo despite his concerns, during which
Officer Ynguanzo retrieved “a small, approximately 2
inch legal folding pocket knife.” (Id. at
7-8). Plaintiff alleges that he was “[f]ully
compliant” and made “NO objections” to his
pocket-knife being taken. (Id. at 8). Plaintiff
states that he also provided his identification.
alleges that, as the pat down continued, Officer Ynguanzo
“suddenly and without ANY GOOD CAUSE” violently
grabbed Plaintiff's right arm and “began to
hard-twist it into a Painful, unnatural, contorted and
damaging manner, ” which “instantly caused
damages and [i]njuries to Plaintiff's arm” and his
knee. (Id.) Plaintiff states that Officer Ynguanzo
did this even though it was “beyond evident to any
reasonable person . . . that Plaintiff had a severe limp
& leg/knee injury” (Id. at 7). Plaintiff
states that Officer Ynguanzo then “hard
punch[ed]” him in his testicles and that, when
Plaintiff “took issue” with this assault, Officer
Ynguanzo continued to “Raging with a Contorted, Violent
Behavior, while Sadistically Grinning . . . .”
(Id. at 9). Plaintiff states that Officer Ynguanzo
then sprayed a “Full can of Mace, at close range”
into his eyes, face and mouth. (Id. at 9-11)
Plaintiff alleges Officer Ynguanzo never informed him why he
was being assaulted and did not mention that he was being
detained or arrested. (Id. at 8-9). Plaintiff states
that he did not resist arrest or detention and did not commit
any disorderly conduct; instead, Plaintiff only responded
with “very mild and minimal efforts to Rightfully
protect” his eyes, face, throat, and body.
(Id. at 8-11). Plaintiff alleges that Officer
Ynguanzo “violently pushed” him into his squad
car with no explanation. (Id. at 10). Plaintiff
states that, when Officer Ynguanzo seized his computer, he
treated it without ordinary care by “‘banging it
around' recklessly.” (Id. at 14).
Plaintiff alleges that no law enforcement officers, including
Officer Ynguanzo, made any attempt to obtain the Kroger store
videos after his arrest and only “minimally
investigat[ed]” the incident. (Id. at 14, 22).
alleges that an ambulance arrived approximately one hour
after he requested medical attention. (Id. at 16).
Plaintiff states that he “was treated with the most
callous and Medical deficient disregards, ” which he
believes only worsened his life-threatening conditions.
(Id. at 16-17). Plaintiff alleges that the ambulance
“personnel/attendees were actually in a state of
deranged ‘[h]umored [a]musements.'”
(Id. at 17). Plaintiff states that he was provided a
nasal tube but that it was ineffective. (Id.)
Plaintiff states that he requested an oxygen mask but that
his requests were refused despite his “medically
deficient” blood oxygen levels and pleas that he was
unable to breathe. (Id. at 17-18).
states that he requested “numerous times” to be
transported to The Med. (Id. at 18). Plaintiff
states that MPD and personnel at The Med instructed him to
sign paperwork that he believed was to allow him to get
medical treatment while, instead, it was paperwork to
transfer him to Shelby County jail, where he would not
receive medical assistance. (Id. at 19-20).
Plaintiff states that he did continue to request medical aid
at the Shelby County jail but that these requests were
denied. (Id. at 20).
alleges that Officer Ynguanzo's assault upon him cause
“various severe ‘Chemical Injuries, ”
including “eye/corneal damages” and
“‘Chemical Pneumonia.'” (Id.
at 10). Plaintiff alleges that Officer Ynguanzo broke his
sternum and that the assault left him with “shards of
bone” in surrounding tissues. (Id. at 11-12).
Plaintiff alleges that he also suffered damage to his already
injured knee, to his arm, and to his elbow, as well as
additional injuries. (Id. at 12, 15).
states that Officer Ynguanzo also committed perjury in his
police report by mentioning his pocket knife and attempting
to portray him as “armed.” (Id. at 12).
He states that Officer Ynguanzo also was untruthful in
stating that he entered the Kroger store to approach
Plaintiff; instead, Plaintiff avers that Plaintiff exited the
store to greet Officer Ynguanzo. (Id. at 7, 13).
Plaintiff has provided a detailed recitation of the alleged
facts, it is less clear what legal claims Plaintiff seeks to
pursue against which Defendants. Plaintiff does not enumerate
any specific causes of action; instead, his entire Complaint
consists of a recitation of the facts interspersed with
statutes and legal terms of art. Plaintiff briefly mentions
the Tennessee Government Tort Liability Act
(“GTLA”), Tenn. Code Ann. 29-20-201, and Section
1983, 42 U.S.C. 1983 in his Complaint. Plaintiff also
mentions failure to train, failure to supervise, failure to
act, breach of duty, negligence, negligence per se, gross
negligence, misrepresentation, deliberate indifference, the
“special duty doctrine, ...