Gabriel Gonzalez v. Kendes Archer

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 15, 2021
• Docket: 20-13280
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13280 Non-Argument Calendar ________________________

D.C. Docket No. 5:16-cv-00034-LC-EMT

GABRIEL GONZALEZ,

Plaintiff - Appellant,

versus

KENDES ARCHER, M.D., CONNIE COPELAND, RYLES, Health Services Administrator, PELT, Assistant Health Services Administrator, KATIE WATSON, Chief Pharmacist, et al.,

Defendants - Appellees. ________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

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Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:

Gabriel Gonzalez, proceeding pro se, appeals the district court’s denial of

his objections to its underlying grant of summary judgment to Kendes Archer,

Connie Copeland, Gretchen Ryle, Natalie Pelt, Katie Watson, Nicole English, and

Melanie Alexander (collectively, “the defendants”), finding that Gonzalez failed to

state a Bivens v. Six Unnamed Federal Agents, 403 U.S. 388 (1971), claim for

deliberate indifference. On appeal, the defendants have moved for summary

affirmance and to stay the briefing schedule.

Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “the position of one of the parties is

clearly right as a matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

“When an appellant fails to challenge properly on appeal one of the grounds

on which the district court based its judgment, he is deemed to have abandoned any

challenge of that ground, and it follows that the judgment is due to be affirmed.”

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). For an

argument to be sufficiently briefed on appeal, the argument must include the

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appellant’s “contentions and the reasons for them, with citations to the authorities

and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A).

We review a district court’s denial of a Fed. R. Civ. P. 60(b) motion for abuse

of discretion. Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir.

2000). Under Rule 60(b), the district court may relieve a party from a final judgment

based on mistake or excusable neglect, and “any other reason that justifies relief.”

Fed. R. Civ. P. 60(b)(1), (6).

Pro se pleadings are held to a less stringent standard than counseled pleadings

and, therefore, are liberally construed. Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998). Nevertheless, pro se litigants are still required to conform to

procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). The

district court is not required to “rewrite an otherwise deficient pleading in order to

sustain an action.” Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168-69 (11th Cir.

2014).

As an initial matter, while neither party briefs this issue on appeal, Gonzalez’s

notice of appeal is not timely to appeal from the district court’s summary judgment

order on April 7, 2020 because his objections to the order were not timely to toll the

time to appeal. Fed. R. App. P. 4(a)(1)(B). Because we have construed Gonzalez’s

motion for objections to the underlying grant of summary judgment as a post

judgment Rule 60(b) motion, his notice of appeal is timely as to the district court’s

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order denying his objections. However, Gonzalez’s appeal from a denial of a Rule

60(b) motion will not bring up the underlying judgment for review, because the

appeal was untimely as to the underlying judgment. See Browder v. Dir. Dep’t of

Corr. Of Ill., 434 U.S. 257, 236 n.7 (1978).

Here, there is no substantial question that Gonzalez has abandoned any

challenge to the district court’s denial of his motion for objections by failing to raise

any argument to that effect on appeal. See Groendyke Transp., Inc., 406 F.3d at

1162. Even liberally construed, Gonzalez reiterates only the merits of the underlying

grant of summary judgment, without even a mention of the district court’s order

denying his objections. See Tannenbaum, 148 F.3d at 1263; see also Fed. R. App.

P. 28(a)(8)(A).

Further, even considering the merits of Gonzalez’s appeal, he failed to

demonstrate that the district court abused its discretion in denying his construed Rule

60(b) motion. See Griffin, 261 F.3d at 1303. Instead, Gonzalez merely used his

motion to re-litigate the same arguments he had already made in his response to the

defendants’ motion for summary judgment. (See doc. 85). Therefore, he did not

demonstrate that the district court abused its discretion in denying his construed Rule

60(b) motion. See Toole, 235 F.3d 1307, 1316. Further, even after acknowledging

that his motion was untimely, the district court stated that it conducted a de novo

review of the motion and found that it lacked merit.

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Accordingly, there is no substantial question that Gonzalez abandoned any

challenge to the district court’s grant of summary judgment and that, even

considering the merits, the district court properly denied his post judgment motion.

Therefore, the defendants’ motion for summary affirmance is GRANTED and their

motion to stay the briefing schedule is DENIED as moot.