Bai v. Johnson

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 XIAO YE BAI, Case No. 2:20-cv-2192-RFB-EJY

8 Plaintiff, ORDER

9 v.

10 CALVIN JOHNSON, et al.

11 Defendants.

12 13 Before the Court are six motions: Plaintiff Xiao Ye Bai’s AMENDED MOTION for 14 Preliminary Injunctions, ECF No. 21, Plaintiff Xiao Ye Bai’s MOTION for Emergency 15 Supplemental Injunctions, ECF No. 57, Defendants’ MOTION to Dismiss, ECF No. 76, the 16 ORDER and REPORT AND RECOMMENDATION of United States Magistrate Judge, Elayna 17 J. Youchah, ECF No. 82, Plaintiff Xiao Ye Bai’s MOTION for Further Confirm the Following 18 New Status Conference Hearing and Relevant Appointment of Counsel Progress, ECF No. 90, and 19 Plaintiff Xiao Ye Bai’s MOTION to Stay Case, ECF No. 100. 20 Plaintiff Xiao Ye Bai, who is incarcerated in the custody of the Nevada Department of 21 Corrections, filed a civil rights complaint against Defendants pursuant to 42 U.S.C. § 1983. 22 Plaintiff alleges that Defendants subjected him to medical mistreatment and retaliated against him 23 after he broke both legs and ankles jumping over a fence at Southern Desert Correctional Center. 24 He alleges that this mistreatment and retaliation violated his constitutional rights. He is seeking 25 monetary damages and injunctive relief. 26 I. Plaintiff’s Injunctive Relief Motions 27 A preliminary injunction is “an extraordinary remedy that may only be awarded upon a 28 clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 1 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, a plaintiff must establish four elements: 2 “(1) a likelihood of success on the merits, (2) that the plaintiff will likely suffer irreparable harm 3 in the absence of preliminary relief, (3) that the balance of equities tip in its favor, and (4) that the 4 public interest favors an injunction.” Wells Fargo & Co. v. ABD Ins. & Fin. Servs., Inc., 758 F.3d 5 1069, 1071 (9th Cir. 2014), as amended (Mar. 11, 2014) (citing Winter, 555 U.S. 7, 20 (2008)). 6 On November 18, 2021, Plaintiff filed the instant amended motion for preliminary 7 injunction. ECF No. 21. Plaintiff then filed a “Motion for Emergency Supplemental Injunctions” 8 on April 22, 2022. ECF Nos. 57. At this juncture, the Court concludes that Plaintiff’s motions, 9 requesting that he be provided with ankle surgery, pain medication, and leg and ankle braces, do 10 not have a likelihood of success on the merits as he has received the treatment he sought. On May 11 12, 2022, Defendants notified the Court that Plaintiff’s surgery had been approved, about the 12 medication he was receiving, and that he had received knee and ankle braces. On June 6, 2022, 13 Plaintiff underwent the ankle surgery. Indeed, Plaintiff has notified the Court about issues with the 14 quality of the medication and the braces he has received. The Court, however, will not consider 15 these issues as Plaintiff’s motions fail to raise them. Thus, Plaintiff’s motions for injunctive relief 16 are denied without prejudice. 17 II. July 7, 2022 Status Conference Hearing, the Pending Motions, and 18 Appointment of Pro Bono Counsel 19 During the July 7, 2022 Status Conference hearing, the Court took under submission 20 pending motions, including Defendants’ Motion to Dismiss the Second Amended Complaint 21 (“SAC”) and Magistrate Judge Youchah’s Order and Report and Recommendation also concerning 22 the SAC. ECF Nos. 76, 82, and 94. The Court agreed to consider Plaintiff's request for the 23 appointment of pro bono counsel. ECF No. 94. On July 19, 2022, Plaintiff filed a Motion “for 24 Further Confirm the Following New Status Conference Hearing and Relevant Appointment of 25 Counsel Progress.” ECF No. 90. The Court construes this motion as a Motion for Appointment of 26 Counsel. Further, on September 7, 2022, Plaintiff filed a Motion to Stay Case based on the Court’s 27 July 7, 2022 Order, following the Status Conference hearing. ECF No. 100. 28 ~ 2 ~ 1 IT IS THEREFORE ORDERED that Plaintiff Xiao Ye Bai’s Amended Motion for Preliminary Injunctions (ECF No. 21) is DENIED without prejudice. 3 IT IS FURTHER ORDERED that Plaintiff Xiao Ye Bai’s Motion for Emergency 4| Supplemental Injunctions (ECF No. 57) is DENIED without prejudice. 5 IT IS FURTHER ORDERED that Plaintiff Xiao Ye Bai’s Motion for Further Confirm 6 | the Following New Status Conference Hearing and Relevant Appointment of Counsel Progress (ECF No. 90) is DENIED in part and GRANTED in part. The Court DENIES the request for an 8 | additional hearing but GRANTS the request for the referral of this case to the pro bono program 9 | for appointment of counsel. 10 IT IS FURTHER ORDERED that this matter is REFERRED to the PRO BONO Program 11 | for the possible appointment of Pro Bono counsel. 12 IT IS FURTHER ORDERED that Plaintiff Xiao Ye Bai’s Motion to Stay Case (ECF No. 13 | 100) is GRANTED. The Court will stay all pending deadlines and discovery until the scheduled Status Conference. At that time, the Court will address a new schedule for discovery with the 15 | parties. 16 IT IS FURTHER ORDERED that a Status Conference Hearing is set for November 29, 2022 at 9:00 am., by videoconference before Judge Richard F. Boulware, II. The instruction 18 | regarding videoconference appearance to be issued. 19 IT IS FURTHER ORDERED that Defendants’ motion to dismiss (ECF No. 76) is 20 DENIED without prejudice. 21 IT IS FURTHER ORDERED that Magistrate Judge Youchah’s Order and Report and 22 | Recommendation (ECF No. 82) is REJECTED without prejudice. 23 24 DATED: September 26, 2022 : SS 26 RICHARD F. BOULWARE, UNITED STATES DISTRICT JUDGE 28 ~3r~