Blandino v. Two Unknown Named AGents of Federal Bureau of Immigration & Customs Enforcement (ICE)

Filing 7

ORDER OF DISMISSAL. Signed by Judge Jeffrey S. White on 11/2/11. (jjoS, COURT STAFF) (Filed on 11/2/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ROBERTO J. BLANDINO,
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Plaintiff,
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v.
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TWO UNNAMED AGENTS,
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Defendants.
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No. C 11-5119 JSW (PR)
ORDER OF DISMISSAL

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Plaintiff, a detainee of the United States Customs Enforcement (“ICE”), filed this

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complaint under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392-97 (1971)

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(allowing a private right of action implied from the Constitution itself for allegations of

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constitutional violations made against federal employees or their agents), against two

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ICE agents. Plaintiff brought the same claims in a prior lawsuit, No. C 10-4529 JSW

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(PR). The complaint in that case failed to name any defendants, however. Plaintiff was

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given time to discover the defendants’ names and file an amended complaint naming the

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two defendants. Plaintiff filed an amended complaint, but it did not name the two

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individuals who allegedly violated his constitutional rights. Consequently, that case was

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dismissed without prejudice to filing a new lawsuit in which Plaintiff provides the names

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of the defendants. Plaintiff then filed this action, but he still does not name the

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defendants as he was ordered to do. Consequently, this action is DISMISSED without

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prejudice to Plaintiff raising his Bivens claims in an amended complaint filed in his

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currently pending case (Case No. C 11-4807 JSW (PR), see discussion below).

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The Court notes that Plaintiff presently has another pending case (Case No. C 11-

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4807 JSW (PR)). That case is based on the same alleged events as the Bivens claims

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raised herein and in Plaintiff’s earlier-dismissed case (Case No. C 10-4529 JSW (PR)).

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The currently pending case, however, sets forth a claim under the Federal Torts Claim

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Act (“FTCA”) against the United States of America. Plaintiff only needs one case based

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upon the same events, anything more is a waste of judicial resources. Consequently, if

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Plaintiff discovers the name of the agents who are defendants to his Bivens claims, he

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must present such claims in an amended complaint in his pending action (Case No. C 11-

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4807 JSW (PR)), not by filing a new complaint in a new case. The amended complaint

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must include the words “Court-Ordered First Amended Complaint” and the case number

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(Case No. C 11-4807 JSW (PR)) in the caption. The amended complaint supercedes the

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original complaint, and consequently Plaintiff may not incorporate matters from the

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original complaint by reference, but rather it must include all the claims he wishes to

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present. If Plaintiff wants to pursue both Bivens and FTCA claims, he must present both

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claims in his amended complaint because any claims not included in the amended

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complaint will be deemed dismissed and will not be considered.

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IT IS SO ORDERED.

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DATED: November 2, 2011

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JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERTO X. BLANDINO,

Case Number: CV11-05119 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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TWO UNKNOWN NAMED AGENTS et al,

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Defendant.

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/

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.

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Roberto X. Blandino 077 223 173
41777 Grimmer Blvd F1
Fremont, CA 94538

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Dated: November 2, 2011

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk