Court of Appeals for the Fifth Circuit

Sheldon Polakoff and Gloria Polakoff v. J. D. Henderson, Warden, U. S. Penitentiary

1974 U.S. App. LEXIS 10357 · 488 F.2d 977

January 28, 1974 · Docket 73-3427

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Headnotes

Generated summaries

Headnote 1
The Eleventh Circuit relied on Kimbrough to support its summary affirmation of the Polakoffs’ appeal, finding the untimely brief triggered the waiver recognized by that precedent.
Headnote 2
18.15.2 Constitutional and Civil Rights Law > Law Enforcement and Custodial Civil Rights Law > Conditions of Confinement Law
The Eleventh Circuit affirmed the district‑court dismissal because the appellants, filing pro se, failed to submit a brief within the time prescribed, and the court relied on precedent that such failure bars further argument.
Headnote 3
18.15.2 Constitutional and Civil Rights Law > Law Enforcement and Custodial Civil Rights Law > Conditions of Confinement Law
In Polakoff, the court disposed of the appeal without a briefing because the appellants did not comply with Rule 31, invoking its own local rule to dismiss the case summarily.
Headnote 4
18.15.3 Constitutional and Civil Rights Law > Law Enforcement and Custodial Civil Rights Law > Deliberate Indifference to Medical Needs Law
The appellant did not file a brief within the time fixed by Rule 31, so the court treated the appeal as waived and proceeded to a summary disposition.
Headnote 5
18.15.3 Constitutional and Civil Rights Law > Law Enforcement and Custodial Civil Rights Law > Deliberate Indifference to Medical Needs Law
The court applied its local rule to dispose of the pro se appeal without a brief, noting the appellant’s failure to comply with the filing deadline.
Headnote 6
18.15.3 Constitutional and Civil Rights Law > Law Enforcement and Custodial Civil Rights Law > Deliberate Indifference to Medical Needs Law
The Eleventh Circuit affirmed the lower court’s dismissal, relying solely on the procedural defect of an untimely brief and did not address whether the complaint was viable under the Civil Rights Act.
Headnote 7
18.15.3 Constitutional and Civil Rights Law > Law Enforcement and Custodial Civil Rights Law > Deliberate Indifference to Medical Needs Law
The Eleventh Circuit relied on Kimbrough as controlling authority for its summary disposition of a pro se appeal filed without a brief.
Headnote 8
18.8.5 Constitutional and Civil Rights Law > Due Process, Equal Protection, and Standards of Review Law > Notice and Hearing Requirements Law
The court cited Kimbrough v. Beto for the proposition that untimely briefing permits summary affirmation of the lower‑court ruling.
Headnote 9
The court affirmed the district‑court judgment and, citing Kimbrough, held that summary affirmation is proper where the appellant waived argument by missing the filing deadline.

Opinion

PER CURIAM:

This is an appeal from the district court’s dismissal of a damage suit, grounded on the Civil Rights Act and diversity jurisdiction, filed by a federal prisoner and his wife. 1 The appellants sued the warden of the institution where the husband is confined, complaining that the warden has denied marital visitations to the appellants. The district court stated reasons for its ruling in a comprehensive memorandum opinion', which is reported as Polakoff v. Henderson, N.D.Ga.1973, 370 F.Supp. 690690 .. We affirm the judgment below for the reasons stated in the district court’s said opinion.

Affirmed.

. . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981.

Case brief

Citation data as of August 10, 2026

Summary

The husband, a federal prisoner, and his wife sued the warden of the prison where he was confined, alleging that the warden denied them marital visitations and seeking monetary damages under the Civil Rights Act, while also invoking diversity jurisdiction. The district court dismissed the complaint, holding that the civil‐rights claim was untenable and that diversity jurisdiction did not exist. The plaintiffs appealed, but as pro se litigants they failed to file a brief within the time prescribed by Federal Rule of Appellate Procedure 31. Relying on Rule 31, Eleventh Circuit Local Rule 9(c)(2), and the precedent set in Kimbrough v. Beto, the Eleventh Circuit concluded that the failure to brief constituted a waiver of the right to argue the appeal. Consequently, the court summarily affirmed the district‐court dismissal without addressing the substantive civil‐rights or jurisdictional questions. The affirmation was entered per curiam, with no concurring or dissenting opinions. The decision, affirmed in Polakoff v. Henderson, establishes that an untimely brief permits the Eleventh Circuit to dispose of a pro se appeal on procedural grounds alone.

Updated August 10, 2026

Statement of Facts

The appellants, a federal prisoner and his wife, filed a civil action in the United States District Court for the Northern District of Georgia against the warden of the penitentiary in which the husband was confined. The plaintiffs alleged that the warden had denied them marital visitations, and they brought a damage suit grounded on the Civil Rights Act and invoking diversity jurisdiction. The district court dismissed the action, holding that the suit was untenable under the Civil Rights Act and that diversity jurisdiction was unavailable. The plaintiffs appealed the dismissal; however, they failed to file a brief within the time prescribed by Rule 31 of the Federal Rules of Appellate Procedure. Consequently, the Eleventh Circuit affirmed the district court’s judgment, disposing of the pro se appeal summarily pursuant to its local Rule 9(c)(2). The cause of action was a claim for damages arising from the alleged denial of marital visitation rights. The relief sought was monetary damages, although the opinion does not specify the amount or any additional relief. The defense asserted by the warden (and adopted by the district court) was that the complaint could not proceed because it lacked a viable civil‐rights claim and because the court lacked diversity jurisdiction. No other defenses, counterclaims, or affirmative defenses are mentioned in the opinion.

Updated August 10, 2026

Procedural History

United States District Court for the Northern District of Georgia – The district court entered a comprehensive memorandum opinion dismissing the plaintiffs’ damage suit, holding that the complaint was untenable under the Civil Rights Act and that diversity jurisdiction did not exist. No monetary damages or other relief were awarded.

United States Court of Appeals for the Eleventh Circuit – The plaintiffs (appellants) sought review of the district‐court dismissal. Because they failed to file a brief within the time prescribed by Rule 31 of the Federal Rules of Appellate Procedure, the Eleventh Circuit affirmed the dismissal summarily, invoking its local Rule 9(c)(2). The affirmation was procedural; the appellate court did not address the merits of the civil‐rights or jurisdictional arguments.

No further appeals or subsequent rulings are mentioned in the opinion; thus the procedural record ends with the Eleventh Circuit’s summary affirmation.

Updated August 10, 2026

Issues

1. Substantive Issue (not reached on the merits)
Did the district court correctly dismiss the plaintiffs’ damage suit because the complaint was untenable under the Civil Rights Act (and because diversity jurisdiction was lacking)? 2. Procedural Issue
Did the Eleventh Circuit err in affirming the district‐court dismissal without addressing the merits, when the appellants failed to file a brief within the time prescribed by Rule 31 of the Federal Rules of Appellate Procedure, thereby permitting summary disposition under the court’s local Rule 9(c)(2)?

Updated August 10, 2026

Judgment

The Eleventh Circuit affirmed the district court’s dismissal of the plaintiffs’ damage suit, disposing of the appeal summarily under the court’s local Rule 9(c)(2).

Updated August 10, 2026

Holding

Substantive Issue – An appellate court may affirm a district‐court dismissal without deciding whether the underlying complaint is viable under the Civil Rights Act or whether diversity jurisdiction exists; the substantive merits remain unaddressed when the affirmation is based solely on procedural grounds.

Procedural Issue – An appellant who fails to file a brief within the time prescribed by Rule 31 of the Federal Rules of Appellate Procedure waives the right to further argument, and the appellate court may summarily affirm the lower‐court judgment pursuant to its local rule governing untimely briefs.

Updated August 10, 2026

Rule of Law

Federal Rule of Appellate Procedure 31 – Provides the time limits for filing a brief on appeal; a party that fails to file a brief within the time prescribed waives the right to present further argument on the appeal. Fed. R. App. P. 31(a) (2020).

Eleventh Circuit Local Rule 9(c)(2) – Authorizes the court to dispose of a pro se appeal summarily when the appellant has failed to file a brief within the time fixed by Rule 31 of the Federal Rules of Appellate Procedure. Eleventh Cir. R. 9(c)(2) (effective 1973).

Kimbrough v. Beto, Director, 412 F.2d 981 (5th Cir. 1969) – Holds that an appellate court may summarily affirm a lower‐court judgment when the appellant does not file a brief within the time required by Rule 31, thereby waiving the right to further argument. Kimbrough v. Beto, 412 F.2d 981 (5th Cir. 1969).

Updated August 10, 2026

Reasoning

The Eleventh Circuit first confirmed that it possessed appellate jurisdiction over the district‐court order dismissing the damage suit, because the district court’s judgment was a final, appealable order under 28 U.S.C. § 1291, and the parties had timely filed a notice of appeal.

The court then turned to Federal Rule of Appellate Procedure 31, which mandates that an appellant file a brief within the time fixed by the rule; failure to do so constitutes a waiver of the right to present further argument on the appeal. Fed. R. App. P. 31(a) (2020).

Eleventh Circuit Local Rule 9(c)(2) was identified as the procedural mechanism that allows the court to dispose of a pro se appeal summarily when the appellant has not filed a brief within the time prescribed by Rule 31, thereby effecting a waiver of the right to briefing.

The court relied on the Fifth Circuit’s decision in Kimbrough v. Beto, 412 F.2d 981 (5th Cir. 1969), which held that an appellate court may summarily affirm a lower‐court judgment when the appellant fails to file a brief as required, because the failure constitutes a waiver of the right to further argument.

Applying these authorities to the present case, the court observed that the appellants, who were proceeding pro se, did not submit a brief within the Rule 31 deadline; consequently, they waived any right to argue the merits of the district‐court dismissal.

Because the waiver was clear and undisputed, the Eleventh Circuit exercised its discretion under Local Rule 9(c)(2) to affirm the district‐court judgment without addressing the substantive issues of civil‐rights viability or diversity jurisdiction, noting that such merits review was unnecessary once the procedural bar was triggered.

The court therefore entered a summary affirmation of the district‐court dismissal, holding that the procedural default—failure to file a timely brief—justified affirming the lower court’s order and precluded any further substantive consideration of the plaintiffs’ claims.

Updated August 10, 2026

Concurring/Dissenting Opinions

Authoring Justice: None – no separate concurring or dissenting opinions were filed.
Type of Opinion: None – the opinion is per curiam with no separate opinions.
Summary of Reasoning: The Eleventh Circuit issued a per curiam order affirming the district‐court dismissal and, citing Rule 31, Fed. R. App. P. 31 and Local Rule 9(c)(2), affirmed without addressing the merits; the opinion contains no concurring or dissenting statements.

Updated August 10, 2026

Case Relevance

Polakoff v. Henderson is authoritative for the principle that an appellant’s failure to file a brief within the time prescribed by Fed. R. App. P. 31 constitutes a waiver of the right to further argument and permits the Eleventh Circuit to summarily affirm a lower‐court judgment under its own Local Rule 9(c)(2); the holding directly resolves the procedural issue by affirming the district court’s dismissal without addressing the substantive civil‐rights or diversity‐jurisdiction questions, thereby establishing a clear, procedural‐bar rule that applies whenever a pro se (or any) appellant neglects the Rule 31 briefing deadline, regardless of the underlying merits. The rule’s scope is limited to procedural defaults in appellate briefing—not to the substantive viability of claims—so it does not extend to cases where a brief is filed but is otherwise deficient, nor does it dictate standards for evaluating civil‐rights or jurisdictional merits. Consequently, the decision is a useful citation for courts and litigants seeking to enforce timely briefing requirements, to justify summary affirmances when an appellant waives briefing rights, and to demonstrate that procedural compliance can preempt substantive review; however, it offers no guidance on the merits of civil‐rights actions or on the substantive analysis of diversity jurisdiction.

Updated August 10, 2026

Relevant Quotes

Quoted text: "This is an appeal from the district court’s dismissal of a damage suit, grounded on the Civil Rights Act and diversity jurisdiction, filed by a federal prisoner and his wife."
Bluebook pinpoint citation: 488 F.2d 977
Explanation: Identifies the appeal as a challenge to the district court’s dismissal of the damage suit, establishing the procedural context of the case.

Quoted text: "We affirm the judgment below for the reasons stated in the district court’s said opinion. Affirmed."
Bluebook pinpoint citation: 488 F.2d 977
Explanation: Shows the court’s decision to affirm the lower‑court judgment without addressing the substantive civil‑rights or jurisdictional issues, underscoring that the affirmation was procedural.

Quoted text: "It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981 ."
Bluebook pinpoint citation: 488 F.2d 977
Explanation: Articulates the procedural rule that a pro se appellant who fails to file a brief within the Rule 31 deadline waives further argument, permitting summary affirmation under Eleventh Circuit Local Rule 9(c)(2), and cites the controlling Fifth Circuit precedent.

Updated August 10, 2026

Synthesis

Not available

All jurisdictions

Not available.

Additional Comments

Polakoff v. Henderson · 370 F. Supp. 690Jesse Coy Kimbrough v. Dr. George J. Beto, Director, Texas Department of Corrections · 412 F.2d 981

Monetary awards

No monetary awards found.

Related opinions

Kermit Stubblefield v. J. D. Henderson, Warden, U. S. Penitentiary, Atlanta, Georgia
1973 U.S. App. LEXIS 11377 · 475 F.2d 26
Doyle D. Royal v. J. J. Clark, Warden, U. S. Penitentiary, Atlanta, Georgia
1971 U.S. App. LEXIS 8230 · 447 F.2d 501
Roger Elam v. J. D. Henderson, Warden, U. S. Penitentiary, Atlanta, Georgia
1973 U.S. App. LEXIS 12172 · 472 F.2d 582
Paul Roy Slaughter v. J. D. Henderson, Warden, U. S. Penitentiary, Atlanta, Georgia
1972 U.S. App. LEXIS 6305 · 470 F.2d 743
Raymond Lockett v. C. Murray Henderson, Warden, Louisiana State Penitentiary
1973 U.S. App. LEXIS 8087 · 484 F.2d 62
John Brent Tarlton, Jr. v. J. J. Clark, Warden, U. S. Penitentiary, and the U. S. Board of Parole
441 F.2d 384

Metadata

Court

Court of Appeals for the Fifth Circuit

Decided

January 28, 1974

Docket

73-3427

Precedential status

Published

Sheldon Polakoff and Gloria Polakoff v. J. D. Henderson, Warden, U. S. Penitentiary

Citing opinions

Headnotes

Opinion