Afonso v. Wellpoint, Inc.

Filing 9

DECISION AND ORDER adopting Magistrate Judge Treece's 4 Report and Recommendations and dismissing Pltf's complaint. Pltf is granted leave to file an amended complaint by 7/16/11, if Pltf fails to do so, this case shall be closed. Signed by Senior Judge Thomas J. McAvoy on 6/15/11. [Served by mail.] (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
SUSAN AFONSO,
Plaintiff,
v

1:11-CV-303

WELLPOINT, INC.,
Defendant.
___________________________________________
Thomas J. McAvoy,
Sr. U.S. District Judge

DECISION & ORDER
Magistrate Judge Treece issued a Report-Recommendation dated April 5, 2011
recommending that (1) Plaintiff’s complaint pursuant to 42 U.S.C. § 1983 be dismissed
pursuant to 42 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can
be granted, and (2) Plaintiff be permitted to amend Complaint to state a violation under the
FMLA, 29 U.S.C. § 2601 et sec.
Plaintiff filed timely objections to the Report-Recommendation by filing a copy of the
U.S. Department of Labor Wage and Hour Division’s Fact Sheet #28. Plaintiff then filed
additional, untimely, objections on April 28, 2011.
When objections to a magistrate judge’s Report-Recommendation are lodged, the
Court makes a “de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” See 28 U.S.C. §

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636(b)(1). After such a review, the Court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with instructions.”
Id.
Having reviewed the record de novo and having considered the issues raised in the
Plaintiff’s objections, this Court has determined to accept and adopt the recommendation
of Magistrate Judge Treece for the reasons stated in the Report-Recommendation.
It is therefore ORDERED that Plaintiff’s Complaint be DISMISSED. Plaintiff is
granted leave to file an amended Complaint in accordance with the instructions set forth in
Magistrate Judge Treece’s Report-Recommendation. Any such amended complaint shall
be filed within thirty days of the date of this Decision and Order. In the event Plaintiff
does not file an amended complaint within thirty days, this case shall be closed
without further order of the Court.

IT IS SO ORDERED.
Dated: June 15, 2011

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