Brainerd v. Ward et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
LOGAN BRAINERD 	PLAINTIFF
v. 	Civil No. 4:24-cv-04108
SHERIFF CHAD WARD, et al 	DEFENDANT
REPORT AND RECOMMENDATION
Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Susan O.
Hickory, Chief United States District Judge, referred this case to the undersigned for the purpose
of making a Report and Recommendation. Before the Court is a Plaintiff’s failure to comply with
orders of the Court.
A. 	Instant Complaint
Plaintiff filed his Complaint on October 16, 2024. ECF No. 1. Also on October 16, 2024,
Plaintiff was notified he must pay the filing fee of $405.00 or file a Motion to proceed In Forma
Pauperis (“IFP”), within two business days. ECF No. 3. Plaintiff was informed that failure to
pay the filing fee or to file a Motion to proceed IFP may result in dismissal of this action. 	Id.
Plaintiff has neither paid the $405.00 filing fee nor has he filed a Motion to proceed IFP.
Although pro se pleadings are to be construed liberally, a pro se litigant is not excused
from complying with substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.
1984). Additionally, the Federal Rules of Civil Procedure specifically contemplate dismissal of a
case on the grounds that the plaintiff failed to prosecute or failed to comply with orders of the
court. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962) (stating the
district court possesses the power to dismiss sua sponte under Rule 41(b)). Pursuant to Rule 41(b),
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a district court has the power to dismiss an action based on “the plaintiff's failure to comply with
any court order”. 	Brown v. Frey, 806 F.2d 801, 803–04 (8th Cir. 1986) (emphasis added).
B. Other Cases
Plaintiff has now filed three prior cases in this Court which seem to involve the same
allegations as those in the instant Complaint. In Brainerd v. Sheriff Chad Ward, et al, No. 4:23-
cv-4066 and Brainerd v. Sheriff Chad Ward, et al, No. 4:23-cv-4067, Plaintiff names all of
defendants named in the instant case as well as several others. 	While the complaints are not
models of clarity, they all seem to be based on the same set of operative facts. 	These two prior
complaints were dismissed for failure to state a claim upon which relief can be granted. Plaintiff
appealed both cases to the United States Court of Appeals for the Eighth Circuit which summarily
affirmed the dismissal of both cases. See, Brainerd v. Ward, 2024 WL 3491251 (8th Cir. February
15, 2024)(not reported) and Brainerd v. Ward, 2024 WL 3530145 (8th Cir. February 15, 2024)(not
reported).
On July 29, 2024, Plaintiff filed Brainerd v. Sheriff Chad Ward, et al, No. 4:24-cv-4081.
This was the third Complaint involving the same allegations as are alleged in this current matter.
On November 13, 2024, this Court recommended that matter be dismissed based Plaintiff’s
continued disregard of this Court’s Orders and his continued effort to pursue claims that have been
previously dismissed.
Now Plaintiff has now filed this fourth complaint, which is an identical copy of the previous
complaint filed in Brainerd v. Sheriff Chad Ward, et al, No. 4:24-cv-4081. 	ECF No. 1. 	This
Complaint alleges the same conduct against the same defendants as in the previous complaints. In
this matter, Plaintiff has again failed to comply with the Orders of this Court by failing to either
pay the $405.00 filing fee or file a Motion to proceed IFP.
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Plaintiff has failed to comply with the Court’s order, and therefore, pursuant to Federal
Rule of Civil Procedure 41(b), I recommend Plaintiff’s Complaint (ECF No. 1) be DISMISSED
WITH PREJUDICE.
The Court further recommends, because of the Plaintiff’s continued disregard of this
Court’s Orders and his continued effort to pursue claims that have been previously dismissed, that
Plaintiff be barred from filing any further case in this District without submitting the required filing
fee at the time of the submission of the proposed complaint.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 14th day of November 2024.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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