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Johnson v. Banks

United States District Court, N.D. Mississippi, Greenville Division

September 26, 2017

KEYNON JOHNSON and XAVIEN JOHNSON PLAINTIFFS
v.
FREDRICK RICKY BANKS DEFENDANT

          ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE.

         Before the Court are the Report and Recommendation of United States Magistrate Judge Jane M. Virden and the objections of Fredrick Ricky Banks. Doc. #14; Doc. #15.

         I

         Procedural History

         On October 24, 2016, Keynon Johnson and Xavien Johnson[1] filed a § 1983 complaint against Fredrick Ricky Banks. Doc. #1. The complaint, which is signed by both plaintiffs, alleges:

I Keynon Johnson was place in jail on September 29, 2016. I was having thought of killing myself and others. When I told the jail staff that I need mental health treatment by refuse I get me that treatment. I stayed in jail for four day having thought of hurting myself and other's.
When I was in jail I Xavien Johnson told them that I was depress and that I was hearing voice that told me to kill myself. When I told the to call Life Help the county jail refuse to call the mental health social worker. And I stayed in jail seven day without mental health treatment. Then I call my husband and told him that I was hearing voice that was telling me to kill myself. Then Keynon Johnson called Sheriff Ricky Bank and told him that I was in jail hearing voice that was telling me to kill myself. The county jail refuse to take me to the hospital when I was suffering with depression and hearing voice that told me to kill myself. The jailor's said that they called Sheriff Ricky Banks and told him that I was depress and hearing voice that told me to kill myself.

Id. at 3-4. On December 20, 2016, Banks filed a “Motion to Dismiss Claims or in the Alternative Motion for a More Definite Statement.”[2] Doc. #8. On January 5, 2017, Keynon and Xavien filed a motion to amend seeking to clarify that they are suing Banks in his official capacity as Sheriff of Leflore County, and to add Leflore County as a defendant. Doc. #11.

         On January 30, 2017, United States Magistrate Judge Jane M. Virden issued a Report and Recommendation, recommending:

1. That Plaintiffs' motion [11] to amend be granted and that the motion be deemed an amended complaint which incorporates the allegations of the original complaint.
2. That the Clerk be directed to change the docket of this case to reflect that Leflore County has been added as a party-defendant.
3. That Sheriff Banks's motion to dismiss be granted as to all claims asserted against him in his official capacity by Keynon Johnson, unless within 14 days of entry of an order by the district judge adopting [the] report and recommendations, Keynon files a motion to amend-with a proposed amended complaint attached- which corrects the deficiencies noted [in the report and recommendation]. If Keynon either fails to file a motion to amend or, if after filing such a motion, it is denied by the Court, it is recommended that all of Keynon's claims be dismissed without further order of the Court. If the Court allows Keynon to file an amended complaint, however, it [is] recommended that the Defendant's motion be deemed moot as to the relevant claims.
4. That Sheriff Banks's motion to dismiss be granted only with respect to any claim asserted by Xavien Johnson based upon a theory of policy or custom against the Sheriff in his official capacity, unless within 14 days of entry of an order by the district judge adopting [the] report and recommendations, Xavien files a motion to amend-with a proposed amended complaint attached-which corrects the deficiencies noted [in the report and recommendation]. If Xavien either fails to file a proper motion to amend or, if after filing such a motion, it is denied by the Court, it is recommended that any policy or custom claim by Xavien against the Sheriff in his official capacity be dismissed without further order of the Court. If the Court allows Xavien to file an amended complaint, however, it [is] recommended that the Defendant's motion be deemed moot as to the relevant claims.
5. That Sheriff Banks's motion to dismiss be denied with respect to any claim by Xavien Johnson based upon final policymaker conduct; but, that the Sheriff's motion for a more definite statement be granted with regard to this claim and that Xavien be ordered to separately file a more definite statement of this claim within 14 days of the date of an order by the district judge adopting [the] report ...

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