Turner v. Byer

Filing 41

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/12/19 ORDERING Mr. Alexander Nowinski is appointed as counsel for Mr. Turner for the limitedpurpose of obtaining his medical records and submitting them to the court. Within 60 days from the d ate of service of this order, plaintiff (through Mr. Nowinski) shall submit, to the court and under seal, all of Mr. Turners medical records which date from July 2018 to the present. Plaintiff is directed to Local Rule 141 for the procedure to submit documents to be sealed. The court will defer ruling on defendants motion to dismiss 38 untilplaintiffs motion to appoint counsel is resolved. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAFONZO R. TURNER,

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No. 2:17-cv-1869 EFB P

Plaintiff,

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v.

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S. BYER,

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ORDER

Defendant.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
U.S.C. § 1983. He filed this action in September of 2017. ECF No. 1. In September of 2018,
plaintiff – using the assistance of another inmate – moved for appointment of counsel. ECF No.

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22. He stated that, in July of 2018, he suffered a traumatic brain injury which left him afflicted

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with: (1) ‘confusion’; (2) impairment of his vision; (3) headaches; (4) dizziness; (5) an inability to

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concentrate; and (6) confinement to a wheelchair. Id. at 1-2. The court denied that motion. ECF

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No. 24.

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Now, plaintiff (once more with assistance from another inmate) has renewed his request
for counsel and again states that his medical condition prevents him from litigating this action.

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ECF No. 39 at 1-2. In his motion plaintiff points out that, in another case before this district,
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Magistrate Judge Claire found that his medical condition warranted appointment of counsel. Id.
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at 4-5. While that appointment occurred in September of 2018 – nearly one year ago (id.),

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plaintiff has not provided any records which reflect upon his current medical condition. Absent

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such records, the court cannot determine whether plaintiff’s current condition meets the

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“exceptional circumstances” which would warrant appointment of counsel. See 28 U.S.C.
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§ 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900

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F.2d 1332, 1335-36 (9th Cir. 1990). However, the counsel representing Mr. Turner in the case

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before Judge Claire – Mr. Alexander Nowinski – has agreed to accept a limited appointment for

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the purpose of obtaining Turner’s medical records and submitting them to the court. The court

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will, upon receipt, examine the records and determine whether further appointment of counsel is
warranted.

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Accordingly, it is ORDERED that:

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1.

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Mr. Alexander Nowinski is appointed as counsel for Mr. Turner for the limited

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purpose of obtaining his medical records and submitting them to the court.G:2.

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days from the date of service of this order, plaintiff (through Mr. Nowinski) shall submit, to the

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court and under seal, all of Mr. Turner’s medical records which date from July 2018 to the

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Within sixty

present. Plaintiff is directed to Local Rule 141 for the procedure to submit documents to be

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sealed.
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3.

The court will defer ruling on defendant’s motion to dismiss (ECF No. 38) until

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plaintiff’s motion to appoint counsel is resolved.

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DATED: December 12, 2019.

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