Kellum v. Mares, 657 F. App'x 763

Background

Kristine Kellum was booked into Bernalillo County MDC in October 2012 with prolonged high fever, cough, shortness of breath, low blood pressure, tachycardia, and inability to stand; symptoms worsened over several days and she ultimately required hospitalization and open-heart surgery for endocarditis and septic pulmonary emboli.
On October 22, Nurse Stephanie Breen saw Kellum during sick call, applied a "Shortness of Breath" protocol, observed alarming signs (fever, low BP, difficulty breathing, poor skin color) but did not perform ECG, x-rays, lab testing, or arrange emergency transport; Breen told Kellum she was "one sick cookie."
Kellum was later seen by other BCMDC medical staff who provided only Tylenol/ibuprofen and fluids; no diagnostic testing or hospital referral occurred until October 25 when ambulance transport happened.
On October 24 evening correctional officer Adela Mares, the sole officer on duty, was told by Kellum and her cellmate that Kellum was "deathly ill" and needed immediate care; Mares delayed sending Kellum to medical for about five hours, denied a wheelchair, and made dismissive comments.
Kellum alleged the delays caused substantial harm (worsening infection, unnecessary pain) and permanent injury requiring open-heart surgery and lifelong monitoring.
District court denied Breen's Rule 12(c) motion and denied Mares's summary judgment (qualified immunity grounds); the appeals were consolidated and the Tenth Circuit affirmed both denials.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Breen's pleadings plausibly allege Eighth Amendment deliberate indifference	Breen knew of obvious, serious symptoms (fever, low BP, dyspnea) and failed to perform required diagnostics or arrange ER care, so pleadings state plausible claim	Breen was a "sick call" gatekeeper without authority to order ECG/transport; allegations are conclusory and insufficient	Court: Pleadings sufficiently allege objective and subjective components; denial of 12(c) affirmed
Whether Breen is entitled to qualified immunity at pleading stage	N/A (plaintiff opposes immunity)	Breen contends qualified immunity shields her because conduct did not violate clearly established law	Court: Even assuming immunity applies, complaint plausibly alleges violation of clearly established Eighth Amendment rights; denial affirmed
Whether Mares’s conduct (delay) satisfies objective/subjective Eighth Amendment elements	Five-hour delay, observed obvious severe illness, and expert evidence support that delay worsened condition and caused substantial pain	Mares challenges causation: no expert directly attributing need for surgery to the five-hour delay; alternatively, condition might have been irreversible before delay	Court: Sufficient evidence (expert on bacterial growth and pain testimony) permits reasonable jury to infer delay worsened infection and caused substantial pain; summary judgment denied
Whether expert testimony is required to prove delay-caused substantial harm	Kellum presented expert testimony showing aggressive bacterial replication and that prompt care often avoids surgery; delay caused intermediate harm and pain	Mares argued expert proof is required and existing experts disclaimed causation as to final outcome	Court: No absolute rule requiring experts; here expert evidence plus other record facts suffices to allow jury inference of worsened condition and unnecessary pain

Key Cases Cited

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standards and plausibility review)
Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity framework)
Estelle v. Gamble, 429 U.S. 97 (1976) (government must provide medical care to inmates; deliberate indifference standard)
Farmer v. Brennan, 511 U.S. 825 (1994) (subjective knowledge and obvious-risk inference for Eighth Amendment claims)
Mata v. Saiz, 427 F.3d 745 (10th Cir. 2005) (delay-in-treatment requires showing of substantial harm)
Self v. Crum, 439 F.3d 1227 (10th Cir. 2006) (gatekeeper liability when care is completely denied despite recognizable emergency)
Al-Turki v. Robinson, 762 F.3d 1188 (10th Cir. 2014) (deliberate indifference and diagnostics/referral duty; expert/pain evidence can show substantial harm)
Brown v. Montoya, 662 F.3d 1152 (10th Cir. 2011) (qualified immunity standards on pleadings review)
Estate of Booker v. Gomez, 745 F.3d 405 (10th Cir. 2014) (deliberate indifference assessed at time of omission)
Sealock v. Colorado, 218 F.3d 1205 (10th Cir. 2000) (delay can unlawfully prolong pain even if not sole cause of serious event)