Case: 12-13387 Date Filed: 02/10/2014 Page: 1 of 15
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13387 ________________________
D.C. Docket No. 5:11-cv-00209-RS-CJK
JEFFREY KUHNE,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS, LYSETTE LAGARES, M.D., in her individual capacity, OLIVIA WILLIAMS, R.N., in her individual capacity, PAULA BRYSON, L.P.N., in her individual capacity, HAROLD PARKER, A.R.N.P., in his individual capacity, OFFICER SUSAN MCINTOSH, in her individual capacity,
Defendants-Appellees.
___________________________
Appeal from the United States District Court for the Northern District of Florida ____________________________ (February 10, 2014) Case: 12-13387 Date Filed: 02/10/2014 Page: 2 of 15
Before PRYOR and JORDAN, Circuit Judges, and PRO, * District Judge.
JORDAN, Circuit Judge:
Samuel Goldwyn, the legendary movie mogul, reportedly said that a “verbal
contract isn’t worth the paper it is written on.” 1 The same, we conclude, goes for a
refusal of medical care form that, if the testimony of the plaintiff is to be believed,
was materially altered after he signed it. And because the validity of that
document is in question, it could not have served as the basis for the entry of
summary judgment in favor of the defendants on the plaintiff’s Eighth Amendment
claim under 42 U.S.C. § 1983.
I
Jeffrey Kuhne was incarcerated by the Florida Department of Corrections
for a probation violation. At an initial intake screening in June of 2008, his vision
was 20/40 in his right eye and 20/30 in his left eye. See D.E. 62-1 at 5. Shortly
after being transferred to Jackson Correctional Institution, Mr. Kuhne—who was
then in his mid-40s—suffered a dramatic loss of vision. By mid-September of
2008, his vision had deteriorated to 20/70 in his right eye and 20/50 in his left eye.
* Honorable Philip M. Pro, United States District Judge for the District of Nevada, sitting by designation. 1 ELIZABETH FROST-KNAPPMAN & DAVID SHRAGER, A CONCISE ENCYCLOPEDIA OF LEGAL QUOTATIONS 65 (Barnes & Noble ed. 2003). According to one author, what Mr. Goldwyn actually said, in praise of a colleague, was that “[h]is verbal contract was worth more than the paper it’s written on.” Mr. Goldwyn nevertheless was reportedly pleased about the misattribution. See PAUL BOLLER, THEY NEVER SAID IT 42 (1990).
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See D.E. 63-2 at 9.
On October 21, 2008, Dr. Paul Harman, an optometrist, diagnosed Mr.
Kuhne as having proliferative diabetic retinopathy, a progressive condition that can
lead to permanent blindness if left untreated. He recommended that Mr. Kuhne be
“refer[ed] to [a] retinal specialist for eval[uation] ASAP.” See D.E. 62-5 at 2. Dr.
Lysette Lagares, Jackson’s chief health officer, received Dr. Harman’s report the
next day, and the Department scheduled Mr. Kuhne to receive “urgent” follow-up
care from a retinal specialist on November 18, 2008. See D.E. 62-4 at 2.2 As it
turns out, Mr. Kuhne never visited a retinal specialist during his remaining five
months at Jackson, and when he was released from custody in March of 2009, he
was permanently blind in his left eye.
Mr. Kuhne ultimately filed suit under § 1983, asserting an Eighth
Amendment claim (as well as a supplemental state law negligence claim) against
the Florida Department of Corrections and the officials whom he alleged had acted
with deliberate indifference by failing to provide him care for his retinopathy.
Following discovery, the district court granted summary judgment in favor of the
defendants on the Eighth Amendment claim. Although it was undisputed that Mr.
2 According to Mr. Kuhne’s medical expert, the consultation with the retinal specialist should have taken place within three to seven days of the examination by Dr. Harman. See D.E. 67-1 at 13-14. The form authorizing the evaluation by a retinal specialist, which was signed by Mr. Kuhne on October 23, 2008, indicates that the November 18 appointment was made by someone in utilization management on October 29. See D.E. 62-4 at 2; Kuhne Affidavit, D.E. 63-11 at ¶ 5. As explained later, the fact that the appointment was made on October 29 is potentially significant.
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Kuhne’s retinopathy was “an objectively serious medical condition,” the district
court ruled that Mr. Kuhne had voluntarily, and with informed consent, signed a
form on October 28, 2008, refusing the consultation with the retinal specialist. See
D.E. 72 at 3-4, 8-9. As the district court put it, Mr. Kuhne could “not be forced to
undergo medical treatment that he does not want, but ‘he cannot refuse medical
treatment, and then claim he was denied medical care.’” Id. at 8 (quoting Morrison
v. Buss, 2011 WL 6151590, *4 (N.D. Fla. 2011)). The district court declined to
exercise supplemental jurisdiction over the state law negligence claim, and
dismissed that claim without prejudice. See id. at 11-12.
Mr. Kuhne appeals the district court’s grant of summary judgment, while the
defendants cross appeal the district court’s order denying sanctions. After a review
of the record, and with the benefit of oral argument, we reverse the grant of
summary judgment and affirm the denial of sanctions.
II
Our review of a summary judgment order is plenary, and we apply the same
legal standards as required of the district court. See, e.g., Hoffman v. Allied Corp.,
912 F.2d 1379 (11th Cir. 1990). Summary judgment is appropriate “if the
[defendants] show[ed] that there [were] no genuine dispute[s] as to any material
fact[s] and [that they were] entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). We assess all of the evidence and draw all reasonable factual inferences
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in the light most favorable to Mr. Kuhne, the non-moving party. See Chapman v.
AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc).
The Eighth Amendment's prohibition against “cruel and unusual
punishments” protects a prisoner from “deliberate indifference to serious medical
needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). To state a claim of
unconstitutionally inadequate medical treatment, a prisoner must establish “an
objectively serious [medical] need, an objectively insufficient response to that
need, subjective awareness of facts signaling the need, and an actual inference of
required action from those facts.” Taylor v. Adams, 221 F.3d 1254, 1258 (11th
Cir. 2000).
A
On October 28, 2008, five days after he signed the authorization for the
consultation with the retinal specialist, Mr. Kuhne met with Nurses Olivia
Williams and Paula Bryson at Jackson. Exactly what happened at that meeting
(and what followed thereafter) is at the heart of this appeal. Because of the
summary judgment posture of this case, we recount Mr. Kuhne’s version of events.
According to Mr. Kuhne, he wanted to remove certain lifting and walking
restrictions that had been placed on him because he “no longer needed those
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restrictions.” Kuhne Affidavit, D.E. 63-11, at ¶ 7. 3 Nurse Bryson handed him a
pre-printed Department of Corrections form entitled “Refusal of Health Care
Services Affidavit.”
The version of the refusal form submitted by the defendants in support of
their motion for summary judgment was signed by Mr. Kuhne, and by Nurses
Williams and Bryson. It had the “Medical Services” box checked and, in the line
next to that box, had the following written by hand: “Eye Consult, Restricted
Activity (ᴓ lifting > 20 lb., Pass. [E]xcessive Walking).” See D.E. 62-6 at 2.4
Mr. Kuhne stated in his affidavit that his encounter with Nurses Williams
and Bryson lasted no more than two minutes, that no one at Jackson discussed the
risks and benefits of refusing the consultation with the ophthalmologist, that he
was “not given time to ask questions about his condition or his alleged decision to
refuse the treatment regarding [his] eyes,” and that he was not told he was refusing
treatment for his eyes. See D.E. 63-11 at ¶¶ 7-9. Nurse Bryson, said Mr. Kuhne,
told him to sign the refusal form and get out of the office, and he did as she
demanded, because a “prisoner does what he is told or else he goes to solitary
confinement.” Id.
Significantly, Mr. Kuhne, who was still able to read in October of 2008, see
3 Although the record is not crystal-clear about the reasons for the restrictions, the medical file for Mr. Kuhne shows that he suffered a herniated disc in the late 1990s and had several surgeries before his incarceration (lung, right knee, torn muscle). See D.E. 62-1 at 5. 4 The refusal form submitted by the defendants is attached as an appendix to this opinion.
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Kuhne Deposition, D.E. 53-14 at 158, also stated in his affidavit that, at the time he
signed the refusal form, he “did not see anything written [on the form] about an
eye consult.” He also denied having written the words “eye consult” on the refusal
form. See D.E. 63-11 at ¶ 8. He learned only the next day that he had “apparently
signed a refusal pertaining to [his] eyes.” See id. at ¶ 9. Mr. Kuhne “adamantly
den[ied] refusing an available ophthalmology consultation.” See id. at ¶ 6.
In November and December of 2008, Mr. Kuhne put in “a number of sick
calls” to get some help with his continuing eye problems. See id. at ¶ 11. One day,
Mr. Kuhne specifically told Nurse Bryson that he needed to see a doctor about his
eyes. See id. at ¶ 12. On another occasion, Nurse Williams told him that he could
not see a doctor because he had less than six months to go on his sentence. See id.
at ¶ 13. Officials at Jackson kept telling him that he had signed a refusal form, but
he had continued to ask, without success, for medical treatment after October of
2008. See id.
On January 28, 2009, Mr. Kuhne filed an inmate request to the
“classification” department “to help [him] receive his 85% date,” explaining that
he had “continually deteriorating eyesight.” He wrote that he had “gone blind in
left eye and half blind in right,” and pleaded, “Please Help – my sight is getting
worse.” See id. at ¶ 14; D.E. 62-8 at 2. On the same day, his attorney, J. Gordon
Shuler, Esq., sent a letter by facsimile to the Department of Corrections stating
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that Mr. Kuhne was suffering from retinopathy and severe vision loss, that he had
not received proper medical care, and that he was in “dire need of immediate
medical attention.” See D.E. 62-2 at 3. Correctional Officer Susan McIntosh
responded to Mr. Kuhne’s request by stating, “I don’t really understand what I can
help you with. . . . As far as your eyesight, this is a medical issue therefore I would
be unable to assist you in that area.” See D.E. 62-8 at 2.
Several days later, on February 3, 2009, Mr. Kuhne filed another inmate
request, which he entitled a “medical grievance.” He again explained that he was
“blind in [his] left [eye] and half blind in [his] right eye.” He also reported that his
mother had spoken to an outside specialist and that his “condition c[ould] be
corrected if [he] did not wait too long.” He added, “I’m really worried about
totally going blind,” and closed by saying, “My 85% [ ] date was Jan-28-09.” See
D.E. 62-2 at 2.
Without ever seeing Mr. Kuhne, see D.E. 53-14 at 127, Dr. Lagares hand-
wrote a response on February 4, 2009, in which she denied Mr. Kuhne’s February
3 medical grievance. In her response, Dr. Lagares merely noted that Mr. Kuhne,
on October 28, 2008, had signed a refusal form declining the consulation with the
retinal specialist. She did not explain why, even if that were so, Mr. Kuhne could
not have changed his mind or why the Department of Corrections could not then
get him to an ophthalmologist. See D.E. 62-2 at 4.
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Mr. Kuhne saw Nurse Practitioner Harold Parker on February 21, 2009.
Although he noted Mr. Kuhne’s retinopathy diagnosis and urgent need for medical
care, Nurse Practitioner Parker did nothing to obtain eye care for Mr. Kuhne. See
D.E. 63-11 at ¶ 18.
When he was released from Jackson in early March of 2009, Mr. Kuhne
went to see Dr. Logan Brooks, a vitreoretinal specialist. Dr. Brooks was able to
restore vision in Mr. Kuhne’s right eye (to 20/40 vision with significant
impairments in peripheral vision and depth perception). But he could not restore
sight in Mr. Kuhne’s left eye. See id. at ¶ 19. Because of his blindness, Mr. Kuhne
is now completely disabled. See id. at ¶ 20.
B
“A serious medical need is ‘one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.’ In the alternative, a serious
medical need is determined by whether a delay in treating the need worsens the
condition.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009)
(citation omitted). The defendants rightly do not dispute that Mr. Kuhne’s
proliferative diabetic retinopathy constituted a serious condition requiring medical
treatment, see Br. for Appellees/Cross-Appellants at 18, and their own expert
opined that Mr. Kuhne would not have gone blind in his left eye had he received
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medical attention in November of 2008, see id. at 28-29, so the only question for
us is whether—at the summary judgment stage —the refusal form signed by Mr.
Kuhne on October 28, 2008, was fatal to his Eighth Amendment claim. The
answer to that question is no.
In a § 1983 action, the validity of a document which purports to limit a
person’s right to sue is resolved “by reference to traditional common law
principles[.]” Town of Newton v. Rumery, 480 U.S. 386, 392, 107 S. Ct. 1187,
1191 (1987) (analyzing enforceability, under § 1983, of “release-dismissal”
agreement in which arrestee agreed not to sue town or its officials if criminal
charges against him were dropped). See Penn v. City of Montgomery, Ala., 381
F.3d 1059, 1063 n.1 (11th Cir. 2004) (explaining Rumery). And because an
“agreement is a manifestation of mutual assent on the part of two or more
persons,” RESTATEMENT (SECOND) OF CONTRACTS § 3 (1981), it is black-letter
contract law that one party to an agreement cannot, without the other party’s
consent, unilaterally modify the agreement once it has been executed. See 17A
AM. JUR. 2D Contracts § 500 (West database updated Nov. 2013) (“[N]o
abrogation, change, modification, or substitution in a primary contract can be
effected by the sole action of one of the parties to it.”); 17A C.J.S. Contracts § 560
(West database updated Dec. 2013) (“A signed contract . . . cannot be changed
without the consent or subsequent agreement of the parties.”). See also Large v.
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Mobile Tool Int’l, 724 F.3d 766, 772 (7th Cir. 2013) (“Parties are free to abrogate,
change, modify, or substitute a primary contract with their mutual assent.”); SCG
Harbourwood, LLC v. Hanyan, 93 So. 3d 1197, 1200 (Fla. Dist. Ct. App. 2012)
(“The unilateral modification of a contract is unenforceable.”).
On this record, there are genuine issues of material fact concerning the
validity and scope of the refusal form. Mr. Kuhne testified that he asked only for
removal of the lifting and walking restrictions, which he no longer needed, when
he went to see Nurses Williams and Bryson. He also denied ever refusing the
consultation with the ophthalmologist about his retinopathy. Indeed, according to
Mr. Kuhne, neither Nurse Williams nor Nurse Bryson told him anything about
declining that consultation, and he never saw the words “eye consult” on the
refusal form at the time he signed it (as he says he was directed to do by Nurse
Bryson). Additionally, the separate form scheduling the appointment with the
ophthalmologist was dated October 29, 2008, the day after Mr. Kuhne purportedly
executed the refusal form, and it may strike one as odd that someone in utilization
management at Jackson made the appointment after Mr. Kuhne had supposedly
said that he no longer wanted to see a retinal specialist.
Given this evidence, a reasonable jury could find that Mr. Kuhne did not
refuse the consultation with the ophthalmologist on October 28, 2008, and that
either Nurse Williams or Nurse Bryson (or someone else) wrote in the words “eye
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consult” after Mr. Kuhne signed a blank refusal form he believed would only
remove his lifting and walking restrictions. In other words, a reasonable jury could
find that Mr. Kuhne never voluntarily declined, with informed consent, the
upcoming consultation with an ophthalmologist for his retinopathy. See, e.g.,
United States v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami,
Fla., 363 F.3d 1099, 1102-03 (11th Cir. 2004) (reversing summary judgment in
civil forfeiture case because there was an issue of fact as to whether homeowner
had been coerced into signing consent form allowing search of his house).
Furthermore, even if Mr. Kuhne refused the consultation with the
ophthalmologist by signing the refusal form on October 28, 2008, there are
genuine issues of material fact as to whether Mr. Kuhne renewed his request for
medical treatment on multiple occasions thereafter. According to the affidavit he
submitted, Mr. Kuhne complained in November and December of 2008 that he was
going blind in his left eye but had not been to see another doctor. See D.E. 63-11
at ¶¶ 10-13.
The district court’s grant of summary judgment on Mr. Kuhne’s Eighth
Amendment claim is reversed, and the case is remanded for further proceedings
consistent with our opinion. On remand, the district court will need to evaluate the
Eighth Amendment claim as to each individual defendant, viewing the evidence in
the light most favorable to Mr. Kuhne. It may also need to revisit its dismissal of
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the state law negligence claim.
III
We recognize, as we said in Steele v. Shah, 87 F.3d 1266, 1270 (11th Cir.
1996), that “the actual facts of the matter may be significantly different from” Mr.
Kuhne’s account and “more in keeping with” the defendants’ version of events.
But as the record now stands, the refusal form does not entitle the defendants to
summary judgment on Mr. Kuhne’s Eighth Amendment claim.
REVERSED AND REMANDED.
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Appendix
Case: 12-13387 Date Filed: 02/10/2014 Page: 15 of 15 FLORIDA DEPARTMENT OF CORRECTIONS REFUSAL OF HEALTH CARE SERVICES AFFIDAVIT
T is to certify that I am refusing the following:
{]"dical services Mental Health Services U Dental Services_______ [I] Medication_________ Lii Lab/Diagnostic testing IJ Other______________
I understand this refusal is against the advice of my health care providers. I acknowledge that I have been informed of the risks, consequences, and the danger to my health and possibly to my life that may result from my refusal of this procedure/treatment.
I have been given time to ask questions about my condition and about my decision to refuse the procedure/treatment that my health care provider has explained to me is medically indicated and necessary.
I voluntarily assume the risks and accept the consequences of my refusal of the procedure/treatment and I am releasing the Department of Corrections, all health care providers, the facility, and facility staff from any and all liability for ill effects
Io Date
T nesses: I t1'o(JJ__ 4k am a health care staff member and I have witnessed patient voluntarily sign this fo se to sign the form. OLMAWIWAMS, RN JACKSON Ci.
Title of Witness
ama staff member who is not the patient's health care der for this procend I have witnessed the patient voluntarily sign thit Jz*e form.
gLLQck Signature Title of Witness I, the beiow-signe' physician, am aware that this patient has signed this re LYSE1'T LAGARES, MD CHiEF NALTh OFFICER //3O/ô. Date/Stamp Note: Spanish tf4ñslation is on page two. Interpreter/transltor (to be signed by the interpreter/translator if the patient required such assistance): To the best of my knowledge. the patient understood what was interpreted/translated and voluntarily signed this form/refused to sign the form.
Signature of lnterpreter,Trans.lator Title of Witness *If the patient refuses to sign this document, but has verbally refused the above procedure. write REFUSES TO SIGN above Signature of Patient.
DC#_________ This fOrm is not to be amended, revised, or altered Date of Birth KUHNE, JEFFREY without approval of the Director of Health lnstitution_ Services Administration. W/M T( (v7/1c/19t9(4c\