           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)
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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\
