1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN SMITH, Case No. 3:21-cv01170-CAB-BLM Booking #2100597, 12

Plaintiff, 13 ORDER DISMISSING CIVIL vs. ACTION FOR FAILING 14 TO PROSECUTE IN COMPLIANCE WILLIAM KROUT #7255, SAN DIEGO 15 WITH COURT ORDER POLICE DEPARTMENT, HEAD

16 SHERIFF OF SAN DIEGO JAIL, HEAD OF MEDICAL AT SAN DIEGO JAIL, 17 AMBULANCE COMPANY, THE HEAD 18 OF FEDERAL HOLDING, 19 Defendants. 20 21 I. Introduction 22 On June 24, 2021, Benyamin Smith, (“Plaintiff” or “Smith”), who is proceeding pro 23 se, was incarcerated at the Washoe County Detention Center in Reno, Nevada (“WCDC”). 24 He filed a civil rights complaint pursuant to

in the United States District 25 Court for the District of Nevada. ECF No. 1-1. The case was transferred to this Court on 26 June 25, 2021. ECF Nos 3–4. Plaintiff did not prepay the civil filing fee required by 28

(a); instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 28 to

(a). ECF No. 1. 1 In his Complaint, Smith alleged violations of his Fourth, Eighth and Fourteenth 2 Amendment rights. Compl., ECF No. 1-1. Smith alleged that on August 8, 2020, he called 3 “police” to report that he was being kidnaped and robbed by the San Diego Police.

. 4 When he “broke free and ran for [his] life,” he claims he was shot by San Diego Police and 5 pushed off of a roof top, breaking his leg.

He was eventually apprehended, but Smith 6 claimed Defendant Krout denied him access to medical care by telling the ambulance 7 workers (identified as “AMR#11”) “not to take [him] to the hospital [but to] just let him 8 die, take him to jail.”

. Smith alleged he was not taken to the hospital by the 9 ambulance, nor was he given any medical attention, such as x-rays and medications.

10 Smith also contended that “no investigation was done in my case about being kidnaped and 11 robbed” in order to “cover up everything.”

In addition, he alleged he was stabbed while 12 he was sleeping in jail.

13 II. Procedural History 14 On July 26, 2021, the Court granted Smith’s Motion to Proceed IFP, found he had 15 stated a Fourteenth Amendment claim against Defendant Krout for failing to provide Smith 16 with adequate medical care, but dismissed all of his claims against Defendants San Diego 17 Police Department, “Head Sheriff of San Diego Jail,” “Head of Medical at San Diego Jail,” 18 “Ambulance Company That Took Me To Jail,” and “The Head of Federal Holding” 19 pursuant to

(e)(2)(B)(ii) and § 1915A(b)(1). ECF No. 6. Smith was 20 granted 60 days leave within which to either notify the Court that he wished to proceed 21 with the Fourteenth Amendment claims against Defendant Krout only, or file an Amended 22 Complaint that fixed the pleading deficiencies outlined in the Court’s Order. Id. at 13‒14. 23 Smith was also warned his failure to amend would result in the dismissal of his case. Id. 24 at 13 (citing Lacey v. Maricopa County,

(9th Cir. 2012) (noting that 25 claims dismissed with leave to amend which are not re-alleged in an amended pleading 26 may be “considered waived if not repled”). 27 / / / 28 / / / 1 Smith’s Amended Complaint was due on or before September 24, 2021. To date, 2 || Plaintiff has failed to amend, and has not requested an extension of time in which to do 3 ||“The failure of the plaintiff eventually to respond to the court’s ultimatum-either by 4 ||amending the complaint or by indicating to the court that [he] will not do so—is properly 5 || met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park,

, 6 || 1065 (9th Cir. 2004). 7 Conclusion and Order 8 Accordingly, the Court DISMISSES this civil action in its entirety based on 9 || Plaintiff's failure to state a claim upon which § 1983 relief can be granted pursuant to 28 10 || U.S.C. § 1915(e)(2)(B)Gi) and § 1915A(b)(1), and his failure to prosecute as required by 11 || Court’s July 26, 2021 Order. 12 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 13 || pursuant to

(a)(3) and DIRECTS the Clerk to enter a final judgment of 14 || dismissal and close the file. 15 IT IS SO ORDERED. 16 ||Dated: October 1, 2021 € 17 Hon. Cathy Ann Bencivengo 18 United States District Judge 19 20 21 22 23 24 || 26 |/1 In fact, the Court’s July 26, 2021 Order (ECF No. 6) was returned to the Clerk of Court 27 undeliverable by the U.S. Post Office on August 10, 2021. See ECF No. 7. “A party 28 proceeding pro se must keep the court and opposing parties advised as to current address.” S.D. Cal. CivLR 83.11.b.