Rodolfo Lizcano - Page 8




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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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