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[DO NOT PUBLISH]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
________________________
(July 15, 2021)
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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.
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