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Markowitz v. Ynguanzo

United States District Court, W.D. Tennessee, Western Division

February 5, 2019

PAUL MARKOWITZ, Plaintiff,
v.
DAVID YNGUANZO, in his official and individual capacities; JOHN DOES 1-12 and JANE DOES 1-12, as individuals in their official capacity of the City of Memphis; MEMPHIS POLICE DEPARTMENT; SHELBY COUNTY; SHELBY COUNTY JAIL; SHELBY COUNTY SHERIFF'S EMPLOYEES JOHN and JANE DOES 1-10; SHELBY COUNTY JAIL EMPLOYEES JOHN and JANE DOES 1-12; MEMPHIS FIRE DEPARTMENT EMS &/or OTHER PURPORTED “EMERGENCY ASSISTANTS JOHN and JANE DOES 1-8, in their official and individual capacities; THE ELVIS PRESLEY MEMORIAL TRAUMA CENTER THE “MED”; THE “MED'S” EMPLOYEES JOHN and JANE DOES 1-8, in their official and individual capacities; KROGER FOOD STORE CORPORATION and/or “KROGER FOOD STORE, ” located at 3347 Crestview, South Highland, Memphis, Tennessee, 38111; EMPLOYEES of KROGER FOOD STORE CORPORATION and/or “KROGER FOOD STORE, ” JOHN and JANE DOES 1-10, including one known only by the name initials “AJ, ” Defendant.

          REPORT AND RECOMMENDATION ON IN FORMA PAUPERIS SCREENING PURSUANT TO 28 U.S.C. 1915 AND CERTIFICATION OF APPEALABILITY

          CHARMIANE G. CLAXTON, UNITED STATES MAGISTRATE JUDGE

         Before the Court, pursuant to Administrative Order 2013-05[1], 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.

         I. Introduction

         Plaintiff's 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).[2] 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.” (Id.)

         Plaintiff 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 area.” (Id.)

         Plaintiff 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.)

         Plaintiff 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 6-7).

         Plaintiff 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. (Id.)

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         Although 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, ...


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