Lehner v. Internal Revenue Service

Filing 6

ORDER adopting Magistrate Judge Treece's 4 Report-Recommendations and granting Plaintiff's 5 Letter Request for an extension of time. Plaintiff shall have until 9/15/2011 to file and serve an amended complaint. Signed by Senior Judge Thomas J. McAvoy on 8/25/2011. (amt) [Pltf served via reg. mail]

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

1:11-CV-0729

INTERNAL REVENUE SERVICE,,
Defendant.
________________________________________
DECISION & ORDER
McAvoy, S.U.S.D.J.:
This action, brought pursuant to 42 U.S.C. § 1983, was referred by this Court to the
Honorable Randolph F. Treece, United States Magistrate Judge, for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
In the Report-Recommendation, Magistrate Judge Treece recommends dismissal
of the Complaint or, in the alternative, that Plaintiff be given leave to file an amended
complaint that complies with Fed. R. Civ. P. 8. No objections to the ReportRecommendation dated July 27, 2011 have been filed.1 After examining the record, this
Court has determined that the Report-Recommendation is not subject to attack for plain
error or manifest injustice. Accordingly, this Court adopts the Report-Recommendation for
the reasons stated therein.
By letter dated August 22, 2010, Plaintiff request an extension of time to file an
Amended Complaint. That request is GRANTED. Plaintiff is advised to comply with the

1

Although Plaintiff did not file objections, he did file a letter asking for an extension of time
to file an Amended Complaint. See discussion infra.
1

requirements of Fed. R. Civ. P. 8, as detailed in Magistrate Judge Treece’s Report and
Recommendation. Plaintiff shall have until September 15, 2011 to file and serve an
Amended Complaint. Plaintiff is cautioned that the failure to submit an amended
complaint that fails to comply with Rule 8 may result in the dismissal of this action
without the opportunity to replead.
For the foregoing reasons, the Court ADOPTS the Report and Recommendation
and allows Plaintiff until September 15, 2011 to file and serve an Amended Complaint.
IT IS SO ORDERED.
Dated:August 25, 2011

2