Opinion
No. C 11-5119 JSW (PR)
11-02-2011
ROBERTO J. BLANDINO, Plaintiff, v. TWO UNNAMED AGENTS, Defendants.
ORDER OF DISMISSAL
Plaintiff, a detainee of the United States Customs Enforcement ("ICE"), filed this complaint under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392-97 (1971) (allowing a private right of action implied from the Constitution itself for allegations of constitutional violations made against federal employees or their agents), against two ICE agents. Plaintiff brought the same claims in a prior lawsuit, No. C 10-4529 JSW (PR). The complaint in that case failed to name any defendants, however. Plaintiff was given time to discover the defendants' names and file an amended complaint naming the two defendants. Plaintiff filed an amended complaint, but it did not name the two individuals who allegedly violated his constitutional rights. Consequently, that case was dismissed without prejudice to filing a new lawsuit in which Plaintiff provides the names of the defendants. Plaintiff then filed this action, but he still does not name the defendants as he was ordered to do. Consequently, this action is DISMISSED without prejudice to Plaintiff raising his Bivens claims in an amended complaint filed in his currently pending case (Case No. C 11-4807 JSW (PR), see discussion below).
The Court notes that Plaintiff presently has another pending case (Case No. C 114807 JSW (PR)). That case is based on the same alleged events as the Bivens claims raised herein and in Plaintiff's earlier-dismissed case (Case No. C 10-4529 JSW (PR)). The currently pending case, however, sets forth a claim under the Federal Torts Claim Act ("FTCA") against the United States of America. Plaintiff only needs one case based upon the same events, anything more is a waste of judicial resources. Consequently, if Plaintiff discovers the name of the agents who are defendants to his Bivens claims, he must present such claims in an amended complaint in his pending action (Case No. C 114807 JSW (PR)), not by filing a new complaint in a new case. The amended complaint must include the words "Court-Ordered First Amended Complaint" and the case number (Case No. C 11-4807 JSW (PR)) in the caption. The amended complaint supercedes the original complaint, and consequently Plaintiff may not incorporate matters from the original complaint by reference, but rather it must include all the claims he wishes to present. If Plaintiff wants to pursue both Bivens and FTCA claims, he must present both claims in his amended complaint because any claims not included in the amended complaint will be deemed dismissed and will not be considered.
IT IS SO ORDERED.
JEFFREY S. WHITE
United States District Judge
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
ROBERTO X. BLANDINO, Plaintiff,
v.
TWO UNKNOWN NAMED AGENTS et al, Defendant.
Case Number: CV11-05119 JSW
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 2, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.
Roberto X. Blandino 077 223 17
41777 Grimmer Blvd F1
Fremont, CA 94538
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk