UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KRISTINE J. KELLUM, 

 Plaintiff - Appellee, 

v. 

ADELA MARES; STEPHANIE BREEN, 

 Defendants - Appellants, 

and 

BERNALILLO COUNTY; BERNALILLO 

COUNTY COMMISSION; 

CORRECTIONAL HEALTHCARE 

COMPANIES, INC.; TIMOTHY TRAPP; 

KAAKI GARNER; TAILEIGH 

SANCHEZ, 

 Defendants. 

Nos. 15-2215 & 15-2225 

(D.C. No. 1:14-CV-00163-RB-CG) 

(D. N.M.)

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, HOLMES, and McHUGH, Circuit Judges. 

_________________________________ 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

July 25, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

Kristine Kellum filed a 42 U.S.C. § 1983 civil rights suit against personnel at 

the Bernalillo County Metropolitan Detention Correctional Center (“BCMDC”) 

alleging in part that they were deliberately indifferent to her serious medical 

condition in violation of her Eighth Amendment constitutional rights. The district 

court denied a motion to dismiss filed by defendant Stephanie Breen, R.N., a 

privately employed nurse assigned to BCMDC, and denied a motion for summary 

judgment filed by Adela Mares, a BCMDC correctional officer employed by 

Bernalillo County. Ms. Breen and Ms. Mares filed interlocutory appeals, which we 

have consolidated. We affirm. 

I. BACKGROUND 

Ms. Kellum alleges she was booked into BCMDC with a fever and cough, but 

despite her obvious, ongoing, and worsening fever and cough, and vital signs 

indicating a need for urgent medical attention, her condition was not diagnosed or 

treated until she was taken by ambulance to a hospital a week later.1

 There she was 

diagnosed with endocarditis (infection of the heart) with septic pulmonary emoli 

(blockage of the pulmonary arteries with infectious particles) and a large left-side 

pneumothorax (collapsed lung). Ms. Kellum required extensive medical treatment, 

including open heart surgery, and will require additional open heart surgeries and 

significant medical monitoring for the rest of her life. She alleges that if her 

 1

 Ms. Kellum asserted nine federal and New Mexico state causes of action 

against numerous defendants. Only Ms. Kellum’s § 1983 civil rights claims against 

defendants Breen and Mares are at issue in these appeals. 
3 

endocarditis had been diagnosed sooner, her condition would have been less severe, 

she would have avoided damage to her heart and not needed open-heart surgery. 

A. ALLEGATIONS AGAINST NURSE BREEN

Because Nurse Breen appeals the denial of her Fed. R. Civ. P. 12(c) motion for 

partial judgment on the pleadings, we accept as true all well-pleaded factual 

allegations in Ms. Kellum’s complaint and view them in the light most favorable to 

her. See Brown v. Montoya, 662 F.3d 1152, 1160 n.4, 1162 (10th Cir. 2011). 

Ms. Kellum was booked into BCMDC on October 17, 2012, and was so ill with fever 

that she had to lie down on the concrete floor to cool herself, and was unable to get 

out of bed by herself, to dress herself, or to stand at the cell door for meals or sick 

call. Her cellmates repeatedly requested medical treatment for her. On October 22, 

Ms. Kellum’s cellmates helped her stand for sick call, when she was seen by Nurse 

Breen. Nurse Breen is employed by defendant Correctional Healthcare Companies, 

Inc., a private corporation providing health care services to BCMDC. 

Ms. Kellum described her condition to Nurse Breen, stating that her symptoms 

were worsening, her fever was not going down, and she was having trouble breathing 

with chest pains and a worsening cough. Nurse Breen assessed Ms. Kellum under a 

“Shortness of Breath” protocol, observing that Ms. Kellum’s shortness of breath was 

not intermittent and existed even at rest, she had difficulty taking a deep breath, and 

had nausea, fever and chills, and poor skin color. Ms. Kellum alleges this Shortness 

of Breath protocol required Nurse Breen to monitor Ms. Kellum’s heart with an 

electrocardiogram (ECG), but no ECG test was performed. Ms. Kellum alleges her 
4 

vital signs on October 22 of a high fever and low blood pressure indicated she needed 

to be transported to an emergency room for emergency medical care,2

 but no medical 

provider at BCMDC, including Nurse Breen, obtained emergency medical treatment 

for her. Nurse Breen told Ms. Kellum she was “one sick cookie.” Breen Aplt. App. 

at 176 (internal quotation marks omitted). 

Ms. Kellum was also examined on October 22 by defendant Kaaki Garner, 

R.N., and defendant Timothy Trapp, M.D., who gave her Tylenol and ibuprofen and 

advised her to drink more water. Neither Nurse Breen nor any other medical 

provider at BCMDC took any x-rays, or performed any sort of ECG or other 

laboratory testing in an attempt to diagnose Ms. Kellum or understand the nature of 

her illness until she was taken to the hospital on October 25. 

Nurse Breen moved for dismissal of Ms. Kellum’s Eighth Amendment § 1983 

claim against her. Although she is a private medical care provider, she argued she 

was entitled to assert a qualified immunity defense, which shields “government 

officials from liability for 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, 555 U.S. 223, 231 (2009) (internal 

quotation marks omitted). The district court denied the motion. It was persuaded 

that Nurse Breen was not entitled to qualified immunity as a private individual, but 

 2

 According to her complaint, Ms. Kellum’s vital signs during the sick call 

with Nurse Breen were a temperature of 102.5° F, blood pressure of 95/55, and a 

pulse rate of 125 beats per minute. Her vital signs later that day were a temperature 

of 101.2°F, blood pressure of 88/52, and a pulse rate of 128. 
5 

ruled that even if she was entitled to assert that defense, the motion would fail 

because Ms. Kellum’s complaint plausibly alleged Nurse Breen violated her clearly 

established Eighth Amendment rights. 

B. ALLEGATIONS AGAINST MARES

Because Ms. Mares’s appeal is from the denial of qualified immunity at the 

summary judgment stage, and our jurisdiction is limited to purely legal issues, “we 

take, as given, the facts that the district court assumed when it denied summary 

judgment.” Al–Turki v. Robinson, 762 F.3d 1188, 1191 (10th Cir. 2014) (internal 

quotation marks omitted). Thus, we “rely on the district court’s description of the 

facts, taken in the light most favorable to [Ms. Kellum], and do not reevaluate the 

district court’s conclusion that the . . . record is sufficient to prove these facts.” Id. 

Ms. Kellum was placed in a general population pod at BCMDC at 4:30 p.m. on 

October 24. Ms. Mares was the only correctional officer on duty in that housing unit 

that evening. Ms. Kellum’s fellow cellmate, Pilar Gutierrez, immediately recognized 

Ms. Kellum was gravely ill. She said Ms. Kellum could barely walk, her voice was a 

whisper, she was breathless, her lips were purple-ish blue, her skin was gray, her skin 

felt cold and muggy, and she looked like a zombie. Ms. Gutierrez told Ms. Mares 

that Ms. Kellum needed immediate medical attention. Ms. Mares responded that she 

was “really busy.” Mares Aplt. App. Vol. VI at 441. Ms. Gutierrez asked Ms. Mares 

if Ms. Kellum could have a bed, explaining that she could not “even hold herself up. 

She’s extremely sick.” Id. Ms. Mares said she was working on it. Ms. Gutierrez 

told Ms. Mares that Ms. Kellum was “deathly ill.” Id. Ms. Kellum told Ms. Mares, 
6 

“I’m going to die.” Id. Ms. Mares said to Ms. Kellum, “I can tell by looking at you, 

you’re sick,” and told her “[m]edical has already seen you, so I guess you are going 

to die.” Id. Ms. Kellum was not taken to the BCMDC medical unit until 10:08 p.m. 

Her request for a wheelchair to take her there was denied, and she walked to the 

medical unit in “excruciating” pain. Id. 

Ms. Mares moved for summary judgment, which the district court denied. 

It ruled the evidence was sufficient for a reasonable jury to find Ms. Mares knew 

Ms. Kellum needed urgent medical care because she exhibited obvious symptoms of 

severe illness, including profuse sweating, difficulty breathing, and an inability to 

stand; she was told by both Ms. Kellum and Ms. Gutierrez that Ms. Kellum felt and 

looked deathly ill; and Ms. Mares expressly stated she could see Ms. Kellum was 

sick. The district court concluded that, notwithstanding this knowledge, the evidence 

showed Ms. Mares delayed Ms. Kellum’s receipt of medical care for five hours and 

told her she was going to have to die. 

The district court noted Ms. Kellum’s expert medical evidence that this five 

hour delay worsened her condition and caused her unnecessary pain. See Mata v. 

Saiz, 427 F.3d 745, 755 (10th Cir. 2005) (holding that plaintiff may show a delay in 

medical treatment resulted in “substantial harm” by providing specific evidence that 

the delay “caused either unnecessary pain or a worsening of [the] condition”). The 

district court cited medical testimony from Ms. Kellum’s expert, Dr. Ross, that the 

staphylococcus aureus bacterium responsible for Ms. Kellum’s heart infection 

doubles every twenty minutes, that the bacterium is very aggressive, and that a few 
7 

days of delay could make a big difference in the patient’s outcome. Dr. Ross also 

testified that seventy-five percent of patients with endocarditis caused by sepsis are 

treated successfully with antibiotics and without surgery when they receive timely 

emergency care at the first signs of sepsis. The district court concluded this evidence 

was sufficient to support the reasonable inference that the five hours Ms. Mares 

delayed medical treatment for Ms. Kellum worsened Ms. Kellum’s condition because 

during that time the bacteria doubled fifteen times, or increased by a factor of 16,386. 

Further, the district court cited the evidence showing Ms. Kellum experienced 

substantial and debilitating pain and suffering during the five hours Ms. Mares 

delayed Ms. Kellum’s receipt of medical treatment. Accordingly, it denied 

Ms. Mares’s summary judgment motion. 

II. APPLICABLE LAW 

A. JURISDICTION

We have jurisdiction under 28 U.S.C. § 1291 over the final collateral orders 

denying Nurse Breen’s and Ms. Mares’s motions on qualified-immunity grounds. 

See Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (holding appellate courts have 

jurisdiction over orders rejecting as a matter of law qualified immunity raised in a 

motion to dismiss). Whether a plaintiff has sufficiently “alleged a violation of [her] 

clearly established constitutional rights to overcome [the] defense of qualified 

immunity is an issue of law reviewable on interlocutory appeal.” Brown, 662 F.3d at 

1162. Our review is de novo. Id. 
8 

Our jurisdiction to review Ms. Mares’s appeal of her motion for summary 

judgment is limited, however, to “(1) whether the facts that the district court ruled a 

reasonable jury could find would suffice to show a legal violation, or (2) whether that 

law was clearly established at the time of the alleged violation.” Henderson v. Glanz, 

813 F.3d 938, 948 (10th Cir. 2015) (internal quotation marks omitted). We do not 

have jurisdiction to determine “whether or not the pretrial record sets forth a genuine 

issue of fact for trial,” although “even when the district court concludes issues of 

material fact exist, we [may review] the legal question of whether a defendant’s 

conduct, as alleged by the plaintiff, violates clearly established law.” Id. (brackets 

and internal quotation marks omitted). 

B. EIGHTH AMENDMENT

There is an obligation for the government to “provide medical care for those 

whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). 

Prison officials violate the Eighth Amendment’s ban on cruel and unusual 

punishment if their “deliberate indifference to serious medical needs of prisoners 

constitutes the unnecessary and wanton infliction of pain.” Id. at 104 (internal 

quotation marks omitted). The test for deliberate indifference includes both an 

objective and subjective component. Mata, 427 F.3d at 751. 

To satisfy the objective component, the alleged deprivation must be 

“sufficiently serious”; that is, it must expose the inmate to a “substantial risk of 

serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation 

marks omitted). “[A] medical need is sufficiently serious if it is one that has been 
9 

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.” Mata, 

427 F.3d at 751 (internal quotation marks omitted). 

To satisfy the subjective component, the prison official “must have a 

sufficiently culpable state of mind.” Farmer, 511 U.S. at 834 (internal quotation 

marks omitted). The plaintiff must show that the defendant “[knew] of and 

disregard[ed] an excessive risk to inmate health or safety.” Id. at 837. That is, the 

defendant “must both be aware of facts from which the inference could be drawn that 

a substantial risk of serious harm exists, and he must also draw the inference.” Id. 

“[W]hether a prison official had the requisite knowledge of a substantial risk is a 

question of fact subject to demonstration in the usual ways, including inference from 

circumstantial evidence.” Id. at 842. 

C. QUALIFIED IMMUNITY

“When a defendant asserts qualified immunity at summary judgment,” as did 

Ms. Mares, “the burden shifts to the plaintiff to show that: (1) the defendant violated 

a constitutional right and (2) the constitutional right was clearly established.” Morris 

v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012) (internal quotation marks omitted). “To 

determine whether the right was clearly established, we ask whether the contours of a 

right are sufficiently clear that every reasonable official would have understood that 

what he is doing violates that right.” Estate of Booker v. Gomez, 745 F.3d 405, 411 

(10th Cir. 2014) (internal quotation marks omitted). Nurse Breen raised a qualified 

immunity defense at the motion to dismiss stage, which “subjects the defendant to a 
10 

more challenging standard of review than would apply on summary judgment,” 

Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004), as “it is the defendant’s 

conduct as alleged in the complaint that is scrutinized,” Behrens v. Pelletier, 

516 U.S. 299, 309 (1996) (emphasis omitted).3

 

“It has been clearly established in this circuit since at least 2006 that a 

deliberate indifference claim will arise when ‘a medical professional completely 

denies care although presented with recognizable symptoms which potentially create 

a medical emergency . . . and the prison official, knowing that medical protocol 

requires referral or minimal diagnostic testing to confirm the symptoms, sends the 

 3

 The district court concluded Nurse Breen was not entitled to qualified 

immunity both because she is a private person, not a public official, and because the 

complaint plausibly alleged she violated Ms. Kellum’s clearly established 

constitutional rights. Although Nurse Breen challenges both grounds, we need only 

address the latter. As the district court noted, this court has yet to decide whether or 

not qualified immunity is available to employees of a private company providing 

medical services to inmates. See Richardson v. McKnight, 521 U.S. 399, 409‒12 

(1997) (holding that prison guards employed by a large, for-profit multistate private 

prison management company that had contracted with the state to manage the prison 

are not entitled to qualified immunity in a prisoner’s § 1983 action); McCullum v. 

Tepe, 693 F.3d 696, 704 (6th Cir. 2012) (holding that a private doctor providing 

psychiatric services to inmates at a state prison is ineligible for qualified immunity); 

but see Filarsky v. Delia, ___ U.S. ___, 132 S. Ct. 1657, 1665, 1667‒68 (2012)

(extending qualified immunity under § 1983 to private investigator who was 

temporarily retained by a city to assist in an internal investigation, holding that 

“immunity under § 1983 should not vary depending on whether an individual 

working for the government does so as a full-time employee, or on some other 

basis”). 

We decline to decide this issue because we agree with the district court’s 

alternative conclusion that, assuming for the sake of argument Nurse Breen could 

assert a qualified immunity defense, Ms. Kellum’s complaint states a plausible claim 

that Nurse Breen is not entitled to such immunity because she violated Ms. Kellum’s 

clearly established Eighth Amendment rights. 
11 

inmate back to his cell.’” Al‒Turki, 762 F.3d at 1194 (quoting Self v. Crum, 439 F.3d 

1227, 1232 (10th Cir. 2006)). It is also clearly established in this circuit that a delay 

in medical care constitutes an Eighth Amendment violation where the plaintiff can 

show the delay resulted in substantial harm. Mata, 427 F.3d at 751. 

III. ANALYSIS 

A. DENIAL OF NURSE BREEN’S MOTION TO DISMISS 

The court must accept as true all well-pleaded factual allegations in 

Ms. Kellum’s complaint, though to withstand a motion to dismiss, she must allege 

facts that make her stated claim for relief facially plausible. Ashcroft, 556 U.S at 

678. “A claim has facial plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. 

The district court held that Ms. Kellum’s complaint plausibly alleged both the 

objective and subjective components of an Eighth Amendment claim. It ruled that 

the alleged delay and deprivation of medical treatment resulting in endocarditis heart 

damage, the need for open heart surgery, and the attendant unnecessary pain and 

suffering constitute harm sufficiently serious to satisfy the objective component of a 

deliberate indifference claim. Nurse Breen concedes Ms. Kellum’s complaint 

plausibly alleges the objective component, but challenges the district court’s finding 

that Ms. Kellum pled sufficient facts to plausibly show the subjective component. 

 The court identified the following factual allegations that support the claim 

that Nurse Breen knew of, and deliberately disregarded, an excessive risk to 
12 

Ms. Kellum’s health from delayed treatment: Nurse Breen knew Ms. Kellum had an 

untreated fever and cough for five days, knew from the Shortness of Breath protocol 

she performed that Ms. Kellum’s condition indicated the need for an ECG test, knew 

from Ms. Kellum’s vital signs that emergency medical treatment was indicated, and 

recognized that Ms. Kellum was “one sick cookie.” Breen Aplt. App. at 176, 184 

(internal quotation marks omitted). The district court determined that this 

knowledge, coupled with Ms. Kellum’s allegations that Nurse Breen did not take an 

x-ray, perform an ECG or any other laboratory testing to assess or diagnose the 

reason for her condition, or refer her to a hospital for emergency medical treatment, 

were sufficient to plausibly show Nurse Breen was deliberately indifferent. The 

court further noted the allegation that the severity of Ms. Kellum’s condition was so 

obvious to her fellow inmates that they all recognized she needed urgent medical care 

and repeatedly requested medical treatment for her. See Farmer, 511 U.S. at 842 

(holding “a factfinder may conclude that a prison official knew of a substantial risk 

from the very fact that the risk was obvious”). 

On appeal, Nurse Breen argues that the allegations that she knew Ms. Kellum 

was very sick, and that the symptoms Ms. Kellum presented to her indicated a need 

for an ECG test and emergency medical treatment, are insufficient to state an Eighth 

Amendment claim because they rest on an assumption that she had the power to 

perform or order an ECG or other testing or to obtain emergency treatment for 

Ms. Kellum. She asserts she was merely a sick call nurse and her only purpose was 

to act as a gatekeeper to enable Ms. Kellum to see other medical providers, which she 
13 

asserts she did, because Ms. Kellum was later seen by Dr. Trapp and Nurse Garner. 

She asserts that Dr. Trapp was responsible for prescribing Ms. Kellum’s medical 

treatment. 

The problem with this argument is it rests on factual assertions that are not in 

the complaint. The complaint does allege that Nurse Breen saw Ms. Kellum at a sick 

call, but it does not include Nurse Breen’s assertion that her only function was as a 

gatekeeper, that she lacked any power or authority to arrange for ECG or other 

testing or to refer Ms. Kellum to the hospital, or that Dr. Trapp was solely 

responsible for Ms. Kellum’s medical treatment. Nurse Breen may ultimately present 

evidence in support of these allegations, but they may not be considered in a Rule 

12(c) motion to dismiss on the pleadings. 

Nurse Breen argues she cannot be liable because Ms. Kellum was later seen by 

Dr. Trapp and Nurse Garner. But Nurse Breen is not insulated from liability based 

on later medical care “[b]ecause deliberate indifference is assessed at the time of the 

alleged omission.” Estate of Booker, 745 F.3d at 433 (“[A]ny assessment of 

[plaintiff’s] condition conducted several hours after her encounter with [the nurse] is 

irrelevant to whether [the nurse] knew of and disregarded an excessive risk to 

[plaintiff’s] safety.” (internal quotation marks omitted)). 

Nurse Breen argues Ms. Kellum’s claim must fail because her complaint does 

not allege that it was obvious she was suffering from an infection of the tricuspid 

valve of her heart. But the relevant question is the risk of substantial harm, not 

whether the official knew of the specific medical condition causing the symptoms 
14 

presented by the prisoner. Farmer, 511 U.S. at 842 (“The question under the Eighth 

Amendment is whether prison officials, acting with deliberate indifference, exposed a 

prisoner to a sufficiently substantial risk of serious damage to his future health.” 

(emphasis added) (internal quotation marks omitted)). In Farmer, the Court held a 

plaintiff can show deliberate indifference by demonstrating that the prison official 

was aware of an obvious, substantial risk to a prisoner’s safety even if the official 

“did not know that the complainant was especially likely to be assaulted by the 

specific prisoner who eventually committed the assault.” Id. at 843. It is well 

established that “a factfinder may conclude that a prison official knew of a 

substantial risk from the very fact that the risk was obvious.” Id. at 842 (emphasis 

added). Here, the complaint alleged facts that plausibly show that the risk of 

endocarditis or other life-threatening illness was indeed obvious. Ms. Kellum alleged 

Nurse Breen recognized Ms. Kellum was exhibiting severe, obvious, recognizable 

symptoms—prolonged high fever and chills, demonstrable breathing problems, 

nausea, low blood pressure, poor skin color, and inability to stand or walk—which 

Nurse Breen must have known required urgent medical attention and indicated a need 

for an ECG and other diagnostic testing to assess the reason for these symptoms. 

Nurse Breen argues Ms. Kellum’s allegations are wholly conclusory. It is true 

that conclusory allegations are insufficient to withstand a motion to dismiss. See 

Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012) (stating that 

conclusory allegations in a complaint are “not entitled to the assumption of truth”). 

But we do not agree that Ms. Kellum’s allegations are conclusory. The term 
15 

“conclusory” refers to the expression of “a factual inference without stating the 

underlying facts on which the inference is based.” Black’s Law Dictionary (10th ed. 

2014). Here, Ms. Kellum included in her complaint the specific underlying factual 

allegations in support of her claim against Nurse Breen, including the specific 

medical symptoms and vital signs that she presented to Nurse Breen that indicated a 

need for further assessment, testing, diagnosis, and emergency medical treatment. It 

is from these factual allegations that a plausible inference of deliberate indifference 

can be drawn. 

Accordingly, we conclude Ms. Kellum has stated a plausible claim upon which 

§ 1983 relief may be granted, and that Nurse Breen was not entitled to judgment as a 

matter of law on the pleadings. 

B. DENIAL OF MS. MARES’S MOTION FOR SUMMARY JUDGMENT

A prison official who serves solely “as a gatekeeper for other medical 

personnel capable of treating the condition may be held liable under the deliberate 

indifference standard if she delays or refuses to fulfill that gatekeeper role.” Self, 

439 F.3d at 1232 (internal quotation marks omitted). The district court concluded the 

evidence was sufficient to find Ms. Mares knew Ms. Kellum was seriously ill and 

needed immediate medical treatment and disregarded this obvious, substantial risk to 

her health by delaying her receipt of treatment for five hours, causing substantial 

harm by worsening Ms. Kellum’s condition and causing her unnecessary pain and 

suffering. 
16 

On appeal, Ms. Mares challenges only the causation element of the objective 

component as it relates to delayed treatment; that is, whether the delay “resulted in” 

substantial harm. Mata, 427 F.3d at 751 (internal quotation marks omitted). She 

contends Ms. Kellum failed to present expert medical evidence that the five-hour 

delay caused a worsening of Ms. Kellum’s condition. Mares Opening Br. at 2. She 

does not challenge the district court’s determination there was sufficient evidence 

that the delay unnecessarily prolonged Ms. Kellum’s pain and suffering, or that 

Ms. Mares had the culpable state of mind required to establish the subjective 

component of a deliberate indifference claim. Mares Opening Br. at 2. 

When a prisoner claims that harm was caused by a delay in medical treatment, 

she satisfies the objective component by showing the delay resulted in substantial 

harm. Mata, 427 F.3d at 751. “[T]he ‘substantial harm’ caused by a delay in 

treatment may be a permanent physical injury, or it may be an intermediate injury, 

such as the pain experienced while waiting for treatment and analgesics.” Al‒Turki, 

762 F.3d at 1193 (internal quotation marks omitted). The prisoner may show 

“substantial harm” by providing evidence that the delay “caused either unnecessary 

pain or a worsening of [the] condition.” Mata, 427 F.3d at 755. “Even a brief delay 

may be unconstitutional.” Id. Here, as noted above, the district court found 

Ms. Mares’s delay in getting medical treatment for Ms. Kellum worsened her 

condition and caused her unnecessary pain. 

Ms. Mares first asks this court to rule that “expert medical evidence is 

absolutely required to establish” that a public official’s delay in treatment caused 
17 

substantial harm. Mares Opening Br. at 25. We have located no authority in this 

circuit absolutely requiring expert testimony to establish causation in an Eighth 

Amendment medical-treatment claim. Whether expert testimony is necessary to 

prove deliberate indifference to a serious medical need depends on the nature and 

complexity of the medical issues in a particular case and what other evidence is 

available in the record. See, e.g., Ortiz v. City of Chicago, 656 F.3d 523, 534–35 

(7th Cir. 2011) (citing cases that held non-expert evidence is sufficient in delay-ofmedical-care cases as long as it permits the fact-finder to determine whether the 

delay caused additional harm; ruling expert not needed when obviously ill inmate 

dies after defendants failed to provide any medical care). 

In any event, Ms. Kellum did present expert medical testimony. But 

Ms. Mares argues that the expert medical testimony is insufficient as a matter of law 

because it does not demonstrate that the worsening of Ms. Kellum’s condition caused 

the need for open heart surgery, extensive medical treatment, hospitalization, 

rehabilitation, and lifetime monitoring. Mares Opening Br. at 27. She argues there is 

an evidentiary causation vacuum because it is possible, given the aggressive bacteriareplication rate, that Ms. Kellum “was already at the point of no return well before 

the afternoon/evening of October 24.” Id. at 38. 

The relevant question is whether the delay worsened Ms. Kellum’s condition, 

not caused it, and the district court found the delay caused the substantial 

“intermediate harm[s]” of worsened infection and unnecessary pain. See Mata, 

427 F.3d at 753 (holding the objective test can be met by the “intermediate harm,” 
18 

considering the symptoms “presented at the time the prison employee has contact 

with the prisoner” or by the resulting harm, when, for example, “delay by prison 

employees results in damage to a prisoner’s heart” which “undoubtedly” is 

“sufficiently serious”). We are satisfied that the expert medical opinion regarding the 

bacteria-replication rate is sufficient to meet Ms. Kellum’s summary judgment 

burden on worsened-condition causation. The district court found the experts’ 

testimony, coupled with all reasonable inferences viewed in the light most favorable 

to Ms. Kellum, would permit a jury to conclude Ms. Mares’s delay worsened 

Ms. Kellum’s heart infection. We cannot question that reasonable-inference 

determination, as we “lack[ ] jurisdiction at this stage to review a district court’s 

conclusions . . . that a plaintiff’s evidence is sufficient to support a particular factual 

inference.” Fancher v. Barrientos, 723 F.3d 1191, 1199 (10th Cir. 2013) (internal 

quotation marks omitted). 

Lastly, Ms. Mares argues the district court’s determination that a jury could 

reasonably infer from the expert testimony that Ms. Kellum’s condition worsened 

based on the bacteria replication rate is “blatantly contradicted” by the record. 

“[W]hen the version of events the district court holds a reasonable jury could credit 

‘is blatantly contradicted by the record,’ we may assess the case based on our own 

de novo view of which facts a reasonable jury could accept as true.” Lewis v. Tripp, 

604 F.3d 1221, 1225–26 (10th Cir. 2010) (quoting Scott v. Harris, 550 U.S. 372, 380 

(2007)). Ms. Mares asserts Dr. Ross and another expert, Dr. DiCianno, testified they 

had no opinion as to whether the alleged acts or omissions of any BCMDC officials 
19 

caused or contributed to Ms. Kellum’s medical outcome. We have reviewed the 

expert medical evidence, and conclude this deposition testimony does not blatantly 

contradict the evidence that the bacterium doubled every twenty minutes, or the 

inference the district court drew from that evidence that the delay worsened 

Ms. Kellum’s condition. 

Significantly, Ms. Mares does not dispute the district court’s additional 

determination that there was sufficient evidence that the delay caused Ms. Kellum 

unnecessary pain and suffering. Evidence that delay caused substantial unnecessary 

pain and suffering is sufficient to establish the delay-caused-substantial-harm 

element. See Al‒Turki, 762 F.3d at 1193 (“[W]hen the pain experienced during the 

delay is substantial, the prisoner sufficiently establishes the objective element of the 

deliberate indifference test.” (internal quotation marks omitted)); Sealock v. 

Colorado, 218 F.3d 1205, 1210 n.5 (10th Cir. 2000) (“Although [defendant] did not 

cause [the prisoner’s] heart attack, there is factual evidence from which a jury could 

conclude that the delay occasioned by his inaction unnecessarily prolonged [the 

prisoner’s] pain and suffering.”). Here, Ms. Kellum “exceeded the minimum 

evidentiary requirement . . . by presenting specific evidence that she suffered both

unnecessary pain and a worsening in her condition.” Mata, 427 F.3d at 755 

(emphasis added). 

We therefore conclude that Ms. Kellum met her summary-judgment burden to 

establish causation and the objective component of her Eighth Amendment claim 

against Ms. Mares. 
20 

IV. CONCLUSION 

The district court’s orders denying Nurse Breen’s motion for judgment on the 

pleadings and Ms. Mares’s motion for summary judgment are affirmed. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge