Olin Dale Hulsey v. State of Alabama, et al

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 20-10549
Non-Argument Calendar
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D.C. Docket No. 2:19-cv-01310-ACA

OLIN DALE HULSEY,

Plaintiff-Appellant,

versus

STATE OF ALABAMA,
STATE OF FLORIDA,
DEPARTMENT OF VETERANS AFFAIRS,
BIRMINGHAM, CITY OF,
CITY OF BIRMINGHAM POLICE DEPARTMENT,

Defendants-Appellees.

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Appeal from the United States District Court
for the Northern District of Alabama
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(June 23, 2020)
Before BRANCH, GRANT and LUCK, Circuit Judges.
PER CURIAM:
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Olin Dale Hulsey, proceeding pro se, appeals the district court’s dismissal
without prejudice of his civil rights complaint for failure to prosecute. The
Department of Veterans Affairs (“the VA”) has moved to dismiss Hulsey’s appeal
for lack of jurisdiction or, in the alternative, to summarily affirm.
I.
The motion to dismiss the appeal for lack of jurisdiction filed by the VA is
DENIED. Although the failure to serve a defendant with process impacts a district
court’s ability to adjudicate the complaint against that defendant, it does not deprive
us of appellate jurisdiction to review Hulsey’s appeal from the dismissal of his
complaint. See Fed. R. Civ. P. 4(m) (providing that, if a defendant is not served
within 90 days of the filing of the complaint, the district court must dismiss the case
against that defendant without prejudice); Hemispherx Biopharma, Inc. v.
Johannesburg Consol. Invs., 553 F.3d 1351, 1360 (11th Cir. 2008) (“Service of
process is a jurisdictional requirement: a court lacks jurisdiction over the person of
a defendant when that defendant has not been served.” (quotation marks omitted)).
Hulsey timely appealed from the final order dismissing his case, and we have
jurisdiction to review his appeal. See 28 U.S.C. §§ 1291, 2107(b); Fed. R. App. P.
4(a)(1)(B); Justice v. United States, 6 F.3d 1474, 1481 (11th Cir. 1993) (stating that
an involuntary dismissal without prejudice is generally a final order for purposes of
appeal).
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II.
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).
1

We review the dismissal of a complaint for failure to prosecute for abuse of
discretion. Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir.
2005).
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).

1
We are bound by cases decided by the former Fifth Circuit before October 1, 1981.
Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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“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
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 grant the VA’s motion for summary affirmance because there is no
substantial question that Hulsey has abandoned any challenge to the district court’s
dismissal of his complaint by failing to raise any argument to that effect on appeal.
See Groendyke Transp., Inc., 406 F.3d at 1162. Even liberally construed, Hulsey
reiterates only the merits of his claims, in addition to discussing facts that are outside
the scope of those claims, without even a mention of the district court’s dismissal
order. See Tannenbaum, 148 F.3d at 1263; see also Fed. R. App. P. 28(a)(8)(A).
Additionally, we note that the remaining appellees neither joined the motion
for summary affirmance nor filed appellate briefs in our Court. However, because
the district court dismissed the complaint against all the appellees for failure to
prosecute, the VA’s motion for summary affirmance has necessarily brought the
entirety of the judgment before us for review. Moreover, the time for the appellees
to file response briefs has lapsed. Thus, because the matter is ripe for review as to
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all the appellees and our analysis for each is the same, we affirm the district court’s
judgment in its entirety at this time, in the interest of judicial efficiency.
Thus, as there is no substantial question as to the outcome of the case and the
VA’s position is correct as a matter of law, the VA’s motion for summary affirmance
is GRANTED. See Groendyke Transp., Inc., 406 F.2d at 1162. Additionally,
because the VA’s position is also correct as to the remaining appellees and the entire
judgment is ripe for review, we AFFIRM the district court’s dismissal of Hulsey’s
complaint as to all the appellees. The VA’s motion to stay the briefing schedule is
DENIED AS MOOT.

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