Davidson v. Canfield et al

Filing 91

-CLERK TO FOLLOW UP-ORDER directing attorney Andre Ramon Soleil to provide status of representation to the Court. Signed by Hon. H. Kenneth Schroeder, Jr on 5/22/2013. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RONALD DAVIDSON,
Plaintiff,

07-CV-599S(Sr)

v.
WESLEY CANFIELD, M.D.,
Defendant.

ORDER
Plaintiff, Ronald Davidson, filed this pro se action pursuant to 42 U.S.C. §
1983, alleging that between June and December 24, 2004, while he was incarcerated at
the Elmira Correctional Facility (“Elmira”), Wesley Canfield, M.D., Facility Health
Services Director at Elmira, arranged for plaintiff’s transfer to Shawangunk Correctional
Facility (“Shawangunk”), so as to interfere with scheduled foot surgery and urological
surgery, in retaliation for plaintiff’s filing of Davidson v. Desai, 03-CV-121. Dkt. ##1 & 5.

Beginning in late June 2011, plaintiff has sought permission to amend his
complaint to challenge repeated cancellations of surgery but has failed to comply with
the provisions of Local Rule 15 which require a movant seeking to amend or
supplement a pleading to
attach an unsigned copy of the proposed amended pleading
as an exhibit to the motion. The proposed amended
pleading must be a complete pleading superseding the
original pleading in all respects. No portion of the prior

pleading shall be incorporated into the proposed amended
pleading by reference.
Dkt. ##39, 48, 59, 62, 84 & 86. By Decision and Order entered December 6, 2012,
plaintiff was afforded a final opportunity to comply with the requirements of Local Rule
15 and file a motion to amend the complaint, together with a proposed amended
complaint no later than January 31, 2013. Dkt. #86.

By letter dated January 21, 2013, plaintiff advised that attorney Andre
Ramon Soleil traveled to Shawangunk Correctional Facility on December 20, 2012 to
meet with him and
agreed to represent me in bringing an action against The
Mount Vernon Hospital, and I gave him my file in that matter.
He also took my file in this action, and other actions, and
told me that he would consider accepting them or referring
them to other counsel. He promised to immediately make
copies of the files and return them to me.
To date, he has not done so. Despite my sending him two
letters requesting my files back and to inform me if he wants
to take on this action, and other, he has not responded to
my letters.
Plaintiff informed the Court that he would not be able to move to amend his complaint
until Mr. Soleil returned his file.

At a status conference on April 4, 2013, plaintiff reiterated that he was
unable to file his motion to amend the complaint because he had given his file to a
lawyer who had failed to return it.

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By letter dated April 5, 2013, plaintiff enclosed a copy of his grievance to
the State of New York Grievance Committee for the Second, Eleventh and Thirteenth
Judicial Districts accusing attorney Andre Ramon Soleil of taking several of his legal
files during a meeting with plaintiff at Shawangunk Correctional Facility “in order to
consider taking them on or referring them to other counsel” and failing to return the files
to plaintiff despite his promise “to immediately copy them and return them to me.”
Plaintiff also attached to his grievance a letter from Mr. Soleil indicating that “he would
be happy to take [plaintiff’s] case” as described in plaintiff’s letter of November 19, 2012
and an executed retainer agreement dated December 20, 2012 pertaining to a case
against the State of New York which plaintiff states is unrelated to the claims set forth in
his letter.

The Court telephoned Mr. Soleil on April 26, 2013 and requested that he
address plaintiff’s claim that he possessed plaintiff’s file in this action in a letter to the
Court. Mr. Soleil represented that he would do so forthwith, however, no such
communication has been received. Accordingly,

IT IS HEREBY ORDERED that Andre Ramon Soleil declare to the Court
the status of his relationship, if any, with plaintiff with respect to this action and whether
he received documents relating to this action from plaintiff, and if, so, whether and
when such documents were returned to plaintiff no later than June 14, 2013; and

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IT IS FURTHER ORDERED that the Clerk of the Court send a copy of this
Order, certified mail, to Andre Ramon Soleil, 32 Court Street, Suite 1107, Brooklyn,
New York 11201-4440.

SO ORDERED.
DATED:

Buffalo, New York
May 22, 2013

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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