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Petitioner, on April 22, 2004, filed his Bivens action amended
complaint, in which he named as defendants nine individuals with
whom he had worked or who had been involved with the audit of his
1999 Federal income tax return.5 The amended complaint alleged
violations of sections 6103 and 7605 and his civil rights.
On December 14, 2004, the District Court issued an order and
a judgment dismissing petitioner’s case. It concluded that, for
summary judgment purposes, while petitioner had sufficiently
alleged violations of his constitutional rights by defendants in
5Petitioner’s amended complaint did not list the United
States, the Department of the Treasury, or the IRS as a
defendant. In n.1 in the Appendix To Individual Defendant’s
Dispositive Motion, filed with the District Court, the nine named
individual defendants argued that
by operation of Lizcano’s amended complaint, the
Treasury Department has been dismissed from this
action. 6 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, MARY
K. KANE, FEDERAL PRACTICE AND PROCEDURE § 1476 (2d ed.
1990) (reasoning that an amended pleading supersedes
the original, i.e., the original is of no legal
effect); King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994) (same); see also Campbell v. Hoffman, 151 F.R.D.
682, 684 (D. Kan. 1993) (holding that the plaintiff’s
amended complaint effected the dismissal of one of the
defendants from the lawsuit); 8 MOORE’S FEDERAL
PRACTICE ¶ 41.21[2] (3d ed. 2002) (reasoning that an
amended complaint is the appropriate mechanism for
eliminating an issue, or one or more but less than all
of several claims).
This Court notes that the District Court’s order dismissing
petitioner’s case, as well as its judgment, both discussed infra,
included the United States, the Department of the Treasury, and
the IRS as defendants in the caption.
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