             Case: 14-13845   Date Filed: 07/02/2015   Page: 1 of 22


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                              ___________

                                 No. 14-13845
                                 __________

                    D.C. Docket No. 5:11-cv-00209-RS-CJK

JEFFREY KUHNE,

                                                                  Plaintiff-Appellant
                                                                     Cross-Appellee,

                                     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, and OFFICER SUSAN McINTOSH, in her
individual capacity,

                                                           Defendants-Appellees
                                                              Cross-Appellants.


                  Appeals from the United States District Court
                      for the Northern District of Florida

                                 (July 2, 2015)

Before ED CARNES, Chief Judge, JILL PRYOR and HIGGINBOTHAM, ∗ Circuit
Judges:

   ∗
     Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
                Case: 14-13845     Date Filed: 07/02/2015    Page: 2 of 22


PER CURIAM:


        This case comes before our court for the second time.             Jeffrey Kuhne

brought suit against the Florida Department of Corrections and several individual

defendants, alleging that they were deliberately indifferent to his deteriorating

eyesight in violation of his Eighth Amendment rights. The district court granted

summary judgment to the defendants, ruling that Mr. Kuhne had declined medical

treatment. We reversed, holding that the factual question of whether Mr. Kuhne

had, in fact, declined treatment was disputed. On remand, the district court again

entered summary judgment in favor of the defendants, in part based on its

conclusion that Mr. Kuhne had declined medical treatment, a disputed fact we had

previously held could not form a basis for summary judgment.

        On appeal, and with the benefit of oral argument, we affirm in part, reverse

in part, and remand with orders that the remaining claims be set for trial.

                                                I.

                                                A.

        We set out the factual context for this suit in our previous opinion and

summarize briefly now, with emphasis upon the timeline of relevant events.1

Jeffrey Kuhne violated his probation and was incarcerated by the Florida


   1
       See Kuhne v. Fla. Dep’t of Corr., 745 F.3d 1091, 1093–96 (11th Cir. 2014).

                                                2
                Case: 14-13845      Date Filed: 07/02/2015     Page: 3 of 22


Department of Corrections from June 2008 through March 2009. 2 He entered the

state’s custody with 20/40 vision in his right eye and 20/30 vision in his left. His

eyesight deteriorated quickly; by mid-September, his vision was only 20/70 in his

right eye and 20/50 in his left eye.

         Mr. Kuhne sought medical care, and on October 21, 2008, Dr. Paul Harman,

an optometrist, found that Mr. Kuhne suffered from proliferative diabetic

retinopathy, a progressive condition that can lead to permanent blindness if left

untreated.     Dr. Harman recommended referral to a “retinal specialist for [an

evaluation] ASAP.” 3 Dr. Lysette Lagares, chief health officer of the facility where

Mr. Kuhne was being held, received Dr. Harman’s report on October 22, and

approved the evaluation, to which Mr. Kuhne consented on October 23. 4         Five

days later, on October 28, Mr. Kuhne met with Nurses Olivia Williams and Paula

Bryson seeking the removal of lifting and walking restrictions. At that meeting, he

signed a form which recited that he was refusing the following medical services:

“Eye Consult, Restrictive Activity ([no] lifting > 20 [pounds], Pass. [E]xcessive

walking).”5 Mr. Kuhne, who could still read at the time, stated that he did not see


   2
       ECF No. 1-1, at *1. All record citations refer to the PDF pagination.
   3
       ECF No. 62-5, at *2.
   4
       See ECF No. 62-4, at *2.
   5
       ECF No. 62-6, at *2.
                                                  3
                 Case: 14-13845   Date Filed: 07/02/2015     Page: 4 of 22


anything on the form referring to an eye consult, and denied having refused such

medical treatment. Our court held that the question of whether Mr. Kuhne had

voluntarily declined an eye consultation on October 28 is disputed. 6

         Mr. Kuhne continued to “put in a number of sick calls in November and

December [2008].” 7 At least one of those calls led to a medical appointment. On

December 13, 2008, Mr. Kuhne was examined by Harold Parker, a nurse

practitioner, who reported that Mr. Kuhne reported “recent blurry vision.” In his

notes, Mr. Parker wrote that “[patient] refused consult due to short EOS [stay in

prison] time.” 8 Mr. Parker testified in a deposition that he had told Mr. Kuhne to

see a doctor, but that Mr. Kuhne had declined treatment. 9 Mr. Kuhne, by contrast,

reported that he was told that he “could not see a doctor because [he] had less than

six months to go on [his] sentence.” 10 Mr. Parker saw Mr. Kuhne on February 21,

2009, and again did not provide treatment.11



   6
       Kuhne, 745 F.3d at 1097.
   7
       ECF No. 63-11, at *4.
   8
       ECF No. 53-7, at *9.
   9
     ECF No. 63-7, at *10 (“I told [Mr. Kuhne] that he needed to go [see an optometrist],
suggested that he go, told him what the risk factors were if he didn’t go. And at that time
he told me that he would take care of it.”).
   10
        ECF No. 63-11, at *5.
   11
        See id. at *6.

                                                4
                Case: 14-13845      Date Filed: 07/02/2015   Page: 5 of 22


         On January 28, 2009, Mr. Kuhne filed an inmate request, asking for help in

“reciev[ing] [his] 85% date.”12 He also wrote about his deteriorating eyesight:

         Since June, I’ve been having problems with my eyes, slowly getting
         worse. Medical has informed me, that I didn’t have enough time to
         see a specialist. I have gone Blind in left Eye & half blind in Right. I
         have a Eye doctor in Tallahassee upon release to see me to review my
         problem. Please Help – my sight is getting worse. 13
Susan McIntosh, a correctional officer, replied to Mr. Kuhne’s request, stating that

she could not take action with regard to the 85% date, and that she “would be

unable to assist” him with his eyesight, because that was a “medical issue.”14

Finally, in early February, Mr. Kuhne submitted a medical grievance, requesting

eye care, which Dr. Lagares denied on February 4, 2009. 15

         Released from confinement in early March 2009, Mr. Kuhne sought

treatment. Doctors were able to restore most of Mr. Kuhne’s vision in his right

eye. He is completely blind in his left eye. 16




   12
      ECF No. 62-8, at *2. The 85% date is a calculation used to determine an inmate’s
release date. See ECF No. 53-15, at *6.
   13
        ECF No. 62-8, at *2.
   14
        Id.
   15
        See ECF No. 53-3, at *12-13.
   16
        See ECF No. 63-11, at *8.

                                                5
                 Case: 14-13845    Date Filed: 07/02/2015   Page: 6 of 22


                                           B.

         Mr. Kuhne filed suit in Florida state court in June 2011, which was properly

removed to federal court. He alleged that Florida correctional authorities had been

deliberately indifferent to his medical condition in contravention of his Eighth

Amendment rights.17           After discovery, the Defendants moved for summary

judgment on the basis that Mr. Kuhne had signed a refusal form declining future

eye-related medical treatment. The district court agreed, and granted summary

judgment on this basis in May 2012. We reversed, holding that Mr. Kuhne’s

refusal of medical treatment was a disputed material fact.            On remand, we

instructed the district court to “evaluate the Eighth Amendment claim as to each

individual defendant, viewing the evidence in the light most favorable to Mr.

Kuhne.”18

         After remand, the Defendants moved to modify the scheduling order to

allow them to “file a second motion for summary judgment addressing the claims

against them in light of the Eleventh Circuit’s opinion.” 19 The district court denied

the motion. It nonetheless granted the Defendants’ original motion for summary

   17
      Mr. Kuhne filed suit under 42 U.S.C. § 1983 and also asserted a supplemental state
law medical malpractice claim. See Kuhne v. Fla. Dept. of Corr., 745 F.3d 1091, 1093
(11th Cir. 2014).
   18
        Id. at 1097.
   19
        ECF No. 142, at *4.

                                                6
                 Case: 14-13845   Date Filed: 07/02/2015     Page: 7 of 22


judgment on the same record and briefing that it had used the first time around.20

In its order, the district court examined each named defendant separately.

However, it granted summary judgment to three defendants — Dr. Lagares, Ms.

Williams, and Ms. Bryson — on the basis that Mr. Kuhne had signed a refusal

form, the issue our court had already held was disputed for summary judgment

purposes.21 It granted summary judgment to Mr. Parker on the basis that Mr.

Kuhne had “specifically told him that he was seeing a specialist upon release,” and

so there was no basis for liability. 22 Finally, the district court granted summary

judgment to Ms. McIntosh, concluding that she had no duty to forward Mr.

Kuhne’s inmate request to prison medical authorities.23 The court also concluded

that all the individual defendants were entitled to qualified immunity. 24


   20
        See ECF No. 148.
   21
      See, e.g., id. at *11 (“Therefore, even if the appointment date was an undue delay,
Dr. Lagares cannot be held accountable for it because within a week of scheduling,
Plaintiff signed a refusal of medical treatment.”); id. at *13 (“Defendant Williams was
also the nurse who prepared the Refusal of Health Care Services Affidavit. As stated
earlier, the evidence on the record shows that the form clearly stated he was waiving his
eye consult appointment and that he could read and write.”); id. at *13-14 (“Plaintiff
contends that Defendant Bryson handed him the refusal of health care form and told him
to sign it. The evidence is Plaintiff’s word against the defendants’ word. Plaintiff claims
no one discussed the ramifications of his actions of signing the refusal, although he
requested it and it plainly stated he was refusing the eye consult.”).
   22
        Id. at *14.
   23
        Id. at *15.
   24
        Id. at *15-16.
                                                7
                 Case: 14-13845   Date Filed: 07/02/2015     Page: 8 of 22


         Both sides timely appeal.      Mr. Kuhne appeals the grant of summary

judgment, and the Defendants appeal the district court’s denial of their motion to

modify the scheduling order to allow them to file a second motion for summary

judgment.

                                            II.

                                            A.

         As the familiar stricture of Federal Rule of Civil Procedure 56 dictates,

“[t]he court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.”25 We “review[] grants of summary judgment de novo, applying the

same legal standard employed by the district court in the first instance. When

reviewing a grant of summary judgment, [we] may affirm if there exists any

adequate ground for doing so, regardless of whether it is the one on which the

district court relied.”26

         Where, as here, a previous decision of our court has addressed the same or

similar issues raised in this subsequent appeal, we must be mindful of the mandate

rule.


   25
        Fed. R. Civ. P. 56(a).
   26
      Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 (11th Cir. 1993) (internal citation
omitted).

                                                  8
                Case: 14-13845      Date Filed: 07/02/2015    Page: 9 of 22


         [The] well-settled mandate rule obligat[es] district courts to adhere
         closely to the dictates of our opinions. This rule derives from the law
         of the case doctrine, and simply means that a district court is not free
         to deviate from the appellate court’s mandate. An issue decided by an
         appellate court must be followed in all subsequent proceedings unless
         the presentation of new evidence or an intervening change in the
         controlling law dictates a different result, or the appellate decision is
         clearly erroneous and, if implemented, would work a manifest
         injustice. 27
This principle applies to subsequent appellate determinations as well, at least so

long as the “earlier panel has explicitly stated the basis for its holding.” 28

                                             B.

         We begin where our previous panel decision ended: with the holding that the

factual issue of whether Mr. Kuhne refused an ophthalmological consultation in

October 28, 2008, and whether he subsequently renewed his request for medical

treatment in November and December 2008, is disputed.29 In its order, the district

court granted summary judgment in favor of Dr. Lagares, Ms. Williams, and Ms.

Bryson on the basis, in part, that Mr. Kuhne had voluntarily refused medical




   27
      Pelletier v. Zweifel, 987 F.2d 716, 718 (11th Cir. 1993) (internal quotation marks
and citations omitted).
   28
      Riley v. Camp, 130 F.3d 958, 981 (11th Cir. 1997) (en banc) (Kravitch, J.,
concurring in part and dissenting in part).
   29
        Kuhne v. Fla. Dep’t of Corr., 745 F.3d 1091, 1097 (11th Cir. 2014).

                                                  9
               Case: 14-13845     Date Filed: 07/02/2015   Page: 10 of 22


treatment. 30 This ruling assumed as undisputed material facts that our previous

opinion had already held were in dispute. Under the mandate rule that was error.

         Our task is not complete. Because “we may affirm the district court’s grant

of summary judgment if any adequate ground for doing so exists,” 31 we must look

at each individual defendant to determine if — setting aside the contested issue of

whether Mr. Kuhne declined treatment — the record supports summary judgment.

As the summary judgment record is the same as when our court first ruled, we,

guided by the mandate rule, rely on the previous panel’s interpretation of that

record whenever possible.

                                           C.

         The Eighth Amendment’s prohibition against “cruel and unusual
         punishments” protects a prisoner from “deliberate indifference to
         serious medical needs.” 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.” 32
Relevant here, “‘[d]eliberate indifference’ can include ‘the delay of treatment for

obviously serious conditions where it is apparent that delay would detrimentally


   30
        ECF No. 148, at *9-14.
   31
        Doe v. Drummond Co., 782 F.3d 576, 603 (11th Cir. 2015).
   32
     Kuhne, 745 F.3d at 1094 (quoting, in first sentence, Estelle v. Gamble, 429 U.S. 97,
104 (1976), and, in second sentence, Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir.
2000)).

                                                10
                Case: 14-13845     Date Filed: 07/02/2015   Page: 11 of 22


exacerbate the medical problem, the delay does seriously exacerbate the medical

problem, and the delay is medically unjustified.’” 33

         It is undisputed that “Mr. Kuhne’s proliferative diabetic retinopathy

constituted a serious condition requiring medical treatment, and . . . that Mr. Kuhne

would not have gone blind in his left eye had he received medical attention in

November of 2008.” 34 Informed by these facts, our task is to decide whether

summary judgment is proper with respect to each defendant.

                            1. Ms. Williams and Ms. Bryson

         On October 28, 2008, Mr. Kuhne met with nurses Olivia Williams and Paula

Bryson so that he could “remove certain lifting and walking restrictions that had

been placed on him.” 35 During that meeting, he signed a form which stated that he

was refusing an “[e]ye [c]onsult,” however, as our court has already found, the

evidence in the summary judgment record could support the conclusion 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


   33
       Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1235 (11th Cir. 2010) (quoting
Taylor, 221 F.3d at 1259-60). Alternatively, this element can be phrased as a causation
requirement. See Mann v. Taser Int’l., Inc., 588 F.3d 1291, 1307 (11th Cir. 2009)
(plaintiff must prove “causation between that indifference [by defendant] and the
plaintiff’s injury”).
   34
        Kuhne, 745 F.3d at 1096.
   35
        Id. at 1094.

                                               11
                Case: 14-13845    Date Filed: 07/02/2015    Page: 12 of 22


the words “eye consult” after Mr. Kuhne signed a blank refusal form he believed

would only remove his lifting and walking restrictions.” 36 Because it is undisputed

that a delay in medical treatment in October would have made a difference for Mr.

Kuhne’s eventual prognosis, and it is disputed whether Mr. Kuhne declined such

treatment when he met with Ms. Williams and Ms. Bryson, summary judgment is

inappropriate.

         In response, the Defendants make two arguments. Neither succeeds. First,

they argue that a reasonable jury could not believe “the assertion that [Mr. Kuhne]

had to be coerced or threatened into signing a document that he wanted to sign.”37

This argument, however, fails on both the law and the facts. On the law, the

relevant test is whether “it is apparent that delay would detrimentally exacerbate

the medical problem,” a separate issue altogether from the question of coercion.38

And on the facts, there is evidence of pressure in the summary judgment record, at

least as to whether Mr. Kuhne wanted to decline eye care (as opposed to lifting and

walking restrictions, which he admits he wanted to decline):



   36
        Id. at 1097.
   37
        Appellees’ Br. 29.
   38
      Taylor v. Adams, 221 F.3d 1254, 1259 (11th Cir. 2000). Mr. Kuhne would also
have to show that “the delay does seriously exacerbate the medical problem” and that
“the delay is medically unjustified,” id. at 1259-60, neither of which are disputed in this
appeal.

                                               12
                Case: 14-13845     Date Filed: 07/02/2015    Page: 13 of 22


         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. 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.”39
         Second, the Defendants posit that there is no evidence that Mr. Kuhne

requested medical care in November or December 2008.40 Our court has flatly

rejected this proposition, concluding that there is a material dispute over the

existence and content of such requests.41 The Defendants put forward no further

evidence in favor of summary judgment, and consequently, they have not met their

burden, with respect to Ms. Williams or Ms. Bryson, of “demonstrate[ing] the

absence of a genuine issue of material fact.” 42


   39
        Kuhne, 745 F.3d at 1094-95 (quoting ECF No. 63-11, at ¶¶ 7-9).
   40
        Appellees’ Br. at 30-31.
   41
      See Kuhne, 745 F.3d at 1097 (“[T]here 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.”).
   42
      Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In Celotex, the Supreme Court
made clear that “the burden on the moving party may be discharged by ‘showing’ – that
is, pointing out to the district court – that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325. Here, with the exception of the evidence discussed
above, which is either not relevant or disputed, the Defendants have not done so.
                                                13
                Case: 14-13845     Date Filed: 07/02/2015     Page: 14 of 22


                                       2. Mr. Parker

         We turn next to Mr. Parker, a nurse practitioner who twice examined Mr.

Kuhne, once in late 2008 and again in early 2009.

         The first examination occurred on December 13, 2008. There, Mr. Parker

indicated in his notes that Mr. Kuhne had “recent blurry vision,” and wrote that

“[patient] refused consult due to short EOS [stay in prison] time.” 43                  In a

deposition, Mr. Parker testified that he had spoken with Mr. Kuhne about the need

for an eye consult, but that Mr. Kuhne had told him that “[h]e was going home

really soon and would take care of it when he got out.” 44 Mr. Kuhne tells a

different story. His is that a defendant, who he believed was Mr. Parker, told him

“that [he] could not see a doctor because [he] had less than six months to go on

[his] sentence.”45 In short, as our first decision held, whether Mr. Kuhne waived or

was refused medical treatment in December 2008 remains disputed. 46


   43
        ECF No. 53-7, at *9.
   44
        ECF No. 63-7, at *10.
   45
      ECF No. 63-11, at *5. Mr. Kuhne also includes an affidavit by his expert, Dr.
Joseph Paris, which states that “[t]here is no question that Mr. Kuhne wanted to be
treated for the problem as of December 13, 2008.” ECF No. 62-9, at *6.
   46
       See Kuhne, 745 F.3d at 1097. The defendants rely heavily on our unpublished
decision in Whitehead v. Burnside, 403 F. App’x 401 (11th Cir. 2010), which concluded
that “[s]elf-serving statements do not create a question of fact in the face of contradictory,
contemporaneously created medical records.” Id. at 403. Setting aside the fact that
Whitehead is not controlling precedent, in this case, the records – Mr. Parker’s notes –
state only that Mr. Kuhne “refused consult due to short EOS time.” ECF No. 53-7, at *9.
                                                 14
                Case: 14-13845     Date Filed: 07/02/2015     Page: 15 of 22


         This does not entirely end the issue, because Mr. Kuhne must demonstrate

that had medical care been provided in mid-December, it would have made a

difference in his eyesight. There is undisputed record evidence that had Mr. Kuhne

been treated in November 2008 the outcome would have been different, 47 and there

is equally undisputed evidence indicating that by early February, any treatment

would not have made “any difference in outcome from that which he received

subsequently.” 48 December 13, 2008, fits comfortably within the range where

medical treatment could have mattered. The Defendants do not suggest otherwise,

and fail to discharge their burden of showing “that there is an absence of evidence

to support the nonmoving party’s case.” 49

         Mr. Parker also saw Mr. Kuhne on February 21, 2009, and “did nothing to

obtain eye care for [him].” 50 However, at this point, the only evidence in the

summary judgment record is that any late-arriving treatment provided by this date




In this context, the word “refused” is ambiguous – it could either indicate that Mr. Kuhne
decided to refuse medical care or that Mr. Parker refused him such care. The latter
reading would be consistent with Mr. Kuhne’s affidavit, and as such, we are not faced
with a situation where there are necessarily contradictory records.
   47
        See Kuhne, 745 F.3d at 1096.
   48
        ECF No. 53-26, at *3.
   49
        Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Appellees’ Br. 35.
   50
        Kuhne, 745 F.3d at 1095-96.

                                                 15
                Case: 14-13845   Date Filed: 07/02/2015    Page: 16 of 22


would have made no difference in terms of outcome. 51 Causation is a necessary

element of a deliberate indifference claim, and with such evidence unavailing,

summary judgment as to conduct stemming from this medical visit is appropriate.

                                    3. Ms. McIntosh

         Susan McIntosh, a correctional officer, worked at Mr. Kuhne’s facility. On

January 28, 2009, Mr. Kuhne filed an inmate request:

         I’ve had written you yesterday about my D.R. [Disciplinary Record]
         gain time. I was told that you may be able to help me receive my 85%
         date and [might] be able to help me resolve my D.R. I do have
         medical proof for my illness if that helps. Since June, I’ve been
         having problems with my eyes, slowly getting worse. Medical has
         informed me, that I didn’t have enough time to see a specialist. I have
         gone Blind in left eye & half blind in right. I have a Eye doctor in
         Tallahassee upon release to see me to review my problem. Please
         Help – my sight is getting worse.52
Ms. McIntosh, who apparently had no interaction with Mr. Kuhne before receiving

that notice, responded:

         I don’t really understand what I can help you with. The only DR
         showing was in August 2008. If you are asking for the gain time you
         were unable to earn due to the DR, there is nothing I can do about
         that.
         As far as your eyesight, this is a medical issue, therefore I would be
         unable to assist you in that area either.53

   51
       See ECF No. 53-26, at *3 (“It is my opinion that even if Dr. Lagares had approved
a retinal specialty consult on February 4, 2009, there would not have been any difference
in outcome from that which [Mr. Kuhne] received subsequently from Dr. Brooks.”).
   52
        ECF No. 62-8, at *2.
   53
        Id.
                                              16
              Case: 14-13845      Date Filed: 07/02/2015      Page: 17 of 22


Under our circuit’s precedent, when a lay person is accused of deliberate

indifference, the plaintiff must “present[] evidence that her situation was so

obviously dire that two lay [officers] must have known that a medical professional

had grossly misjudged [the plaintiff’s] condition.”54 In addition, the plaintiff must

provide some evidence of the normal elements of deliberate indifference: “(1)

subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by

conduct that is more than gross negligence.” 55

        The summary judgment record does not support the conclusion that Ms.

McIntosh’s conduct satisfies this standard. The inmate request was framed in

terms of getting information on Mr. Kuhne’s release date, and Ms. McIntosh

replied in kind. The note referred to his deteriorating eyesight, but also stated that

Mr. Kuhne had a doctor to see him “upon his release.” In that context, we

conclude that a reasonable jury could not find that Ms. McIntosh knew that a

medical professional had “grossly misjudged” Mr. Kuhne’s condition. Moreover,

there is no evidence in the record that Ms. McIntosh had a subjective knowledge



   54
      Townsend v. Jefferson Cnty., 601 F.3d 1152, 1159 (11th Cir. 2010). Townsend
favorably cited Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004), which held that
“absent a reason to believe (or actual knowledge) that prison doctors or their assistants
are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be
chargeable with the Eighth Amendment scienter requirement of deliberate indifference.”
   55
     Easley v. Dep’t of Corr., 590 F. App’x 860, 868 (11th Cir. 2014) (quoting
Townsend, 601 F.3d at 1158) (brackets omitted).

                                                17
                Case: 14-13845     Date Filed: 07/02/2015    Page: 18 of 22


that there was a risk of serious harm, or that she “actually dr[ew] that inference.” 56

Nor is there evidence that Ms. McIntosh’s conduct was “more than gross

negligence,” indeed, Mr. Kuhne only alleges that it “was inappropriate.” 57 Without

more, we affirm that summary judgment in favor of Ms. McIntosh was proper.

                                      4. Dr. Lagares

         Finally, we turn to Dr. Lagares, the Chief Health Officer for the prison. Mr.

Kuhne appears to make two distinct complaints about Dr. Lagares’s conduct. The

first dates to October 2008. Then, as we explained above, Mr. Kuhne’s diagnosis

of proliferative diabetic retinopathy came on October 21, and his doctor

recommended that he be referred to a retinal specialist “ASAP.” 58 Dr. Lagares

received and approved the referral request the next day, and the appointment,

which “was made by someone in utilization management” was scheduled to occur

on November 18, 2008.59            “According to Mr. Kuhne’s medical expert, the

consultation with the retinal specialist should have taken place within three to

seven days of [October 21] the examination.” 60             Mr. Kuhne argues that by


   56
        Id.
   57
        ECF No. 64, at *13.
   58
        Kuhne v. Fla. Dept. of Corr., 745 F.3d 1091, 1093 (11th Cir. 2014).
   59
        Id. at 1093 n.2.
   60
        Id.

                                                18
                Case: 14-13845       Date Filed: 07/02/2015   Page: 19 of 22


approving an appointment set nearly a month after his retinopathy was first

diagnosed, Dr. Lagares unreasonably delayed the provision of necessary medical

services, giving rise to a claim of deliberate indifference. 61

         We have held that “delayed treatment . . . may also give rise to constitutional

claims.” 62 Whether delay is permissible “depend[s] on the nature of the medical

need and the reason for the delay.” 63 It is not obvious that the delay in question is

fully attributable to Dr. Lagares, or that it is constitutionally excessive. We need

not reach that question, however, as the Defendants present neither argument nor

evidence suggesting that it is not.64 Given that they bear the burden at this stage of

the proceedings, summary judgment cannot rest on this ground. 65

         The second complaint is of Dr. Lagares’s conduct on February 4, 2009,

when she denied Mr. Kuhne’s medical grievance form. 66 Here, want of causation


   61
        See, e.g., ECF No. 65, at *5, 7.
   62
      Farrow v. West, 320 F.3d 1235, 1247 (11th Cir. 2003) (quoting Harris v. Coweta
Cnty., 21 F.3d 388, 394 (11th Cir. 1994)) (bracket omitted).
   63
      Adams v. Poag, 61 F.3d 1537, 1544 (11th Cir. 1995). How long is too long
depends on factors such as the severity of the plaintiff’s pain and the consequences of
delay. See, e.g., McElligott v. Foley, 182 F.3d 1248, 1258 (11th Cir. 1999).
   64
        See Appellee’s Br. 39-42.
   65
      See Fed. R. Civ. P. 56(a) (requiring the movant to “show[] that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.”).
   66
        See ECF No. 53-3, at *12-13.
                                                 19
                Case: 14-13845      Date Filed: 07/02/2015   Page: 20 of 22


is fatal to Mr. Kuhne’s claim. The Defendants’ expert opined that “even if Dr.

Lagares had approved a retinal specialty consult on February 4, 2009, there would

not have been any difference in outcome from that which he received

subsequently.” 67 There is no contradictory evidence. This encounter cannot be

made the basis for liability. 68

                                             III.

         The Defendants also cross-appeal the district court’s denial of their motion

to modify its scheduling order to allow them to file a second summary judgment

motion. This challenge fails.

         Federal Rule of Civil Procedure 16(b) requires the district court to issue a

scheduling order, and provides that this order “may be modified only for good

cause and with the judge’s consent.” 69 We review a district court’s ruling on

scheduling orders for abuse of discretion and here find none.70 There is no general


   67
        ECF No. 53-26, at *3.
   68
     The Defendants also move for dismissal on the basis of qualified immunity as to all
defendants. We have held that where, as here, “the plaintiff has sufficiently alleged or
shown a material dispute of fact as to an [Eighth Amendment] claim, summary judgment
based on qualified immunity is not appropriate.” Bowden v. Stokely, 576 F. App’x 951,
955 (11th Cir. 2014). The defendants can, of course, continue to pursue their qualified
immunity claims at trial.
   69
        Fed. R. Civ. P. 16(b)(4).
   70
     See, e.g., Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1243 (11th Cir.
2001).

                                                    20
                Case: 14-13845     Date Filed: 07/02/2015     Page: 21 of 22


bar on subsequent summary judgment motions after remand. 71 New briefing might

well be required.        In this case, however, the Defendants’ original summary

judgment motion contained arguments that extended beyond the mere fact that Mr.

Kuhne had originally signed a refusal form, and in their motion to modify the

scheduling order, the Defendants do not point to any new evidence they would

proffer or legal theories they would propose that would require new briefing.72

Accordingly, we hold that the district court did not abuse its “broad discretion” in

concluding that it could resolve the pending motions for summary judgment

without modifying the scheduling order.73

                                             IV.

         We AFFIRM the grant of summary judgment to Ms. McIntosh.                   We

REVERSE the grant of summary judgment to Ms. Williams and Ms. Bryson. We

AFFIRM IN PART AND REVERSE IN PART the grant of summary judgment to

Mr. Parker and Dr. Lagares; reversing as to conduct occurring before February

2009 and affirming as to conduct occurring in or after February 2009.               We



   71
      See, e.g., Newman v. Ormond, 456 F. App’x 866, 867 (11th Cir. 2012). Indeed, our
first panel recognized that the district court would need to re-consider whether the
plaintiff’s claims could withstand summary judgment. See Kuhne v. Fla. Dept. of Corr.,
745 F.3d 1091, 1097 (11th Cir. 2014).
   72
        See ECF No. 142.
   73
        Abdullah v. City of Jacksonville, 242 F. App’x 661, 664 (11th Cir. 2007).

                                                   21
              Case: 14-13845      Date Filed: 07/02/2015      Page: 22 of 22


AFFIRM the order of the district court denying the motion to modify the

scheduling order.     We REVERSE the order of the district court declining to

exercise supplemental jurisdiction over the Plaintiff’s state-law claims pursuant to

28 U.S.C. § 1367(c)(3). 74

        We REMAND with orders that the case be reassigned and the remaining

claims be set for trial.




   74
       The district court declined to exercise supplemental jurisdiction over the plaintiff’s
state law medical malpractice claim pursuant to 28 U.S.C. § 1367(c)(3), which allows the
district court to dismiss state-law claims if it has “dismissed all claims over which it has
original jurisdiction.” Since, pursuant to our order, claims brought pursuant to 28 U.S.C.
§ 1331 remain and are yet at the pleading stage, that dismissal cannot be sustained.

                                                22
