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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JEFFREY KUHNE,

Plaintiff,

v. CASE NO. 5:11-cv-209-RS-CJK

FLORIDA DEPARTMENT OF

CORRECTIONS, et al.,

Defendants.

_________________________________________/

AMENDED ORDER

Before me is Defendants’ Motion to Dismiss Count I of Plaintiff’s Amended 

Complaint (Doc. 8). On July 28, 2011, the motion was denied (Doc. 13); however, 

I granted Defendants’ Motion for Amended Order (Doc. 16) to explain my 

reasoning for denying the motion to dismiss based on the qualified immunity of 

Defendant McIntosh.

In order to overcome a motion to dismiss, a plaintiff must allege sufficient

facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544 (2007). Granting a motion to dismiss is appropriate if it is 

clear that no relief could be granted under any set of facts that could be proven 

consistent with the allegations of the complaint. Hishon v. King & Spalding, 467 

U.S. 69, 104 S. Ct. 2229, 2232 (1984). I must construe all allegations in the 

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complaint as true and in the light most favorable to the plaintiff. Shands Teaching 

Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir. 

2000)(citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir. 

1999)). 

The doctrine of qualified immunity protects government officials from civil 

damages “insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known." Pearson v. 

Callahan, 129 S. Ct. 808, 815 (2009) (citation omitted). This doctrine is intended 

to balance "the need to hold public officials accountable when they exercise power 

irresponsibly and the need to shield officials from harassment, distraction, and 

liability when they perform their duties reasonably." Id.

In Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001), the 

Supreme Court mandated a two-step process for lower courts to follow in resolving 

qualified immunity claims. First, the court had to decide whether the facts that the 

plaintiff alleged showed a violation of a constitutional right. Id. Second, if the 

plaintiff satisfied the first step, the court had to determine whether "the right at 

issue was 'clearly established' at the time of defendant's alleged misconduct." 

Pearson, 129 S. Ct. at 816 (quoting Saucier, 533 U.S. at 201). 

The Supreme Court revisited Saucier's mandatory two-step inquiry in 

Pearson. Id., 129 S. Ct. at 815-18. The Court held that while the Saucier process is 

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often appropriate, “it should no longer be regarded as mandatory.” Rather, “[t]he 

judges of the district courts and the court of appeals should be permitted to 

exercise their sound discretion in deciding which of the two prongs of the qualified 

immunity analysis should be addressed first in light of the circumstances in the 

particular case at hand.” Id. at 818. 

Applying this two-step analysis, the courts have recognized that “deliberate 

indifference to serious medical needs of prisoners” violates the Eighth 

Amendment. Erickson v. Pardus, 551 U.S. 89, 90, 127 S. Ct. 2197, 2198 (2007) 

(citing Estelle v. Gamble, 429 U.S. 97, 104-105, 97 S. Ct. 285, 292(1976)). This is 

true whether the “indifference is manifested by prison doctors in their response to 

the prisoner's needs or by prison guards in intentionally denying or delaying access 

to medical care or intentionally interfering with the treatment once prescribed.” Id. 

To sustain such a claim, Plaintiff must allege facts that satisfy both an 

objective and a subjective requirement. There must be an "objectively serious 

deprivation" of medical care, which requires (1) "an objectively serious medical 

need . . . that, if left unattended, poses a substantial risk of serious harm," and (2) 

that the state actor's response "was poor enough to constitute an unnecessary and 

wanton infliction of pain, and not merely accidental inadequacy, negligence in 

diagnosis or treatment, or even medical malpractice actionable under state law." 

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Granda v. Schulman, 372 Fed. Appx. 79, 82-83 (11th Cir. 2010) (per curiam) 

(citations omitted). 

Plaintiff also must allege the state actor's subjective intent to punish by 

pleading facts that would show that Defendants acted with deliberate indifference. 

Deliberate indifference is shown by: (1) the actor's "subjective knowledge of a risk 

of serious harm," (2) the actor's "disregard of that risk," and (3) "conduct that is 

more than mere negligence." Id. Deliberate indifference includes: (1) "grossly 

inadequate care," (2) "a decision to take an easier but less efficacious course of 

treatment," and (3) medical care that is "so cursory as to amount to no treatment at 

all." Id. 

Turning to the facts of the case, when viewed in the light most favorable to 

the Plaintiff, Defendant McIntosh is not entitled to qualified immunity. Defendant 

argues that she had no subjective knowledge of a risk to serious harm to Plaintiff, 

and therefore, does not meet the subjective requirement of Plaintiff’s claim. 

Plaintiff’s Amended Complaint states, “On January 29, 2009, Defendant, 

MCINTOSH, acknowledged KUHNE’s pleas for urgent medical attention, denied 

his request, told him it was a ‘medical’ issue, and did absolutely nothing to help 

him obtain badly needed care for his extremely serious medical condition.” (Doc. 

6). Taking Plaintiff’s allegations as true, Defendant McIntosh intentionally refused 

to aid Plaintiff for an urgent medical condition. The Eleventh Circuit has 

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“consistently held that knowledge of the need for medical care and an intentional 

refusal to provide that care constitutes deliberate indifference.” Adams v. Poag, 61 

F.3d 1537, 1543 (11th Cir. 1995).

Plaintiff told Defendant McIntosh that he needed urgent medical attention,

and Defendant McIntosh intentionally refused to help Plaintiff seek treatment.

This meets the subjective requirement of Plaintiff’s claim for deliberate

indifference. Therefore, Defendant McIntosh is not entitled to qualified immunity,

and Defendants’ Motion to Dismiss is DENIED.

ORDERED on January 27, 2012.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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