Lehner v. Internal Revenue Service

Filing 14

DECISION AND ORDER re 13 MOTION to Appoint Counsel filed by Gerard Edward Lehner. The current Application for the appointment of counsel is subject to Judge McAvoy's reservation and will not be considered until the Report and Recommendation has been ruled upon. Lehner is urged not to file any similar motion until Judge McAvoy has acted. Signed by Magistrate Judge Randolph F. Treece on 12/21/2011. (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
GERARD EDWARD LEHNER,
Plaintiff,
-v-

Civ. No. 1:11-CV-729
(TJM/RFT)

INTERNAL REVENUE SERVICE,
Defendant.
RANDOLPH F. TREECE
United States Magistrate Judge
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DECISION and ORDER
On October 4, 2011, this Court issued a Report-Recommendation and Order
recommending that Lehner’s Amended Complaint be dismissed due to his failure to state
a cause of action and comply with Federal Rules of Civil Procedure 8 and 10. Dkt. No.
8. On October 18, 2011, Lehner filed a Letter-Motion seeking, inter alia, the appointment
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of an attorney. Dkt. No. 10. The Honorable Thomas J. McAvoy, Senior United States
District Judge, issued an Endorsed Order that, in part, reserved upon a decision regarding
the “appointment of counsel until such time the court considers Magistrate Judge’s [Dkt.
No. 8] Report-Recommendation.” Dkt. No. 12.
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Rather than await Judge McAvoy’s decision regarding the pending ReportRecommendation, Lehner has filed yet another Motion for the Appointment of
Counsel. Dkt. No. 13. In support of this Application, Lehner presents a list of attorneys
whom he attempted to hire as counsel. Apparently all of these attorneys have declined
to provide legal services to Lehner.
But, this and the previous Application for the appointment of counsel are

premature. Such Application will not be considered until Judge McAvoy has rendered
a decision regarding this Court’s Report-Recommendation and Order. Interesting, as of
this date, Lehner has not filed any objection to the Report-Recommendation,
notwithstanding Judge McAvoy extending Lehner’s time to file such objections. See Dkt.
No. 12.
Likewise then, this current Application for the appointment of counsel is subject
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to Judge McAvoy’s reservation and will not be considered until the Report and
Recommendation has been ruled upon.
Lehner is urged not to file any similar motion until Judge McAvoy has acted.
IT IS SO ORDERED.

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December 21, 2011
Albany, New York

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