UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ CORNELIUS A. HARTZ, Plaintiff - Appellant,

v. DENNIS SALE, Head Doctor; BRIAN COLE, Director of Jail; SHAWNEE COUNTY DEPARTMENT OF CORRECTIONS; CORIZON CLINIC, Defendants - Appellees. No. 16-3301 (D.C. No. 5:14-CV -03237-DDC-JPO) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, McKAY and LUCERO , Circuit Judges.

________________ _________________ Cornelius Hartz appeals from a dist rict court order granting summary judgment in favor of defendants on his 42 U.S.C. § 1983 cl aim. Exercising jurisdiction under 28 U.S. C. § 1291, we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 9, 2017
Elisabeth A. Shumaker Clerk of Court2 I Hartz’s claim centers on the failure to perform surger y to repair two facial fractures he suffered in two separate in cidents—one that occurred prior to his incarceration and one that occu rred while he was in pretri al detention. Because the district court issued a comprehensive and well-reasoned Memo randum and Order describing Hartz’s injuries and treatment, based primar ily on a Martinez report ordered by the court, 1 we recite the facts only brie fly. In February 2014, several weeks before he was jailed, Hartz was involved in an altercation that resulted in facial fractures. He was treated at the emergency room and released. On May 31, a few days afte r being taken into custody of the Shawnee County Department of Corrections, Hartz was involved in another fight and injured his jaw. He was promptly sent to the emergency room for x-rays. The emergency room doctor noted some old facial fractu res, a new acute fracture overlaying two partially dislocated teeth, and dental dis ease. The doctor did not recommend surgery but advised that Hartz should see an otolaryn gologist and follow a soft diet. Defendant Dennis Sale, D.O., head docto r at the Corizon C linic, prescribed pain medication and put Hartz on a soft di et. When Hartz con tinued to complain about swelling and pain in his face and jaw, he was moved to the medical unit where

1 See Martinez v. Aaron, 570 F.2d 317, 319 -20 (10th Cir. 1978) (per curiam) (approving district court’s practice of orde ring preparation of prison administration report for inclusion in record of a prisoner’ s suit alleging constit utional violations by prison officials).3 he received additional treatment, including ic e packs and antibiotics. Dr. Sale also authorized appointments with an otolaryngologist. Shortly thereafter, Hartz had a dental examination that disc losed the need for root canals and tooth extractions. Dr. Sale ordered the medical staff to arrange for these procedures with an outside dentist. On the day set fo r the procedures, the dentist cancelled the appointment . At an appointment with a different dentist on July 2, 2014, the root canals were performed an d some temporary fillings were replaced. The following day, Hartz asked to see an otolaryngologist. The specialist, however, refused to see him until he had been examined by an op hthalmologist for blurry vision. Throughout this ti me, Hartz continued to receiv e pain medication and other

treatment. Eventually, Hartz was examined by an otolaryngologist who determined that facial surgery was not a medi cal necessity, but si mply an elective procedure. When Hartz pressed the issue, Bria n Cole, director of the Sh awnee County Department of Corrections, met with Dr. Sale to review the otolaryngologist’s report. Cole was informed that surgery was not medically necessary. Based on the medical judgment of Dr. Sale and the otolaryngologist, Cole denied Hartz’s reque st for surgery. Hartz filed suit alleging that defendants were delibera tely indifferent to his medical needs when they denied him facial surgery. After th e Martinez report was filed, defendants moved for summary judgmen t. Hartz requested and was granted an extension of time to respond. Nearly a month after the d eadline expired, Hartz filed a one-page response in opposition. A week later, he filed a document titled4 “Discovery,” which was docke ted as a supplement to his response. Hartz submitted yet another proposed response a week after that, which the court considered in ruling on summary judgment. The district court c oncluded that Hartz fa iled to contradict any of the material facts, a nd that defendants were entitled to judgment in their favor as a matter of law. Hart z now appeals.
II “We review the district court’s grant of summary judgment de novo, applying the same legal standard used by the distri ct court.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009). Summary judgment is a ppropriate “if the movant shows that there is no genuine disput e as to any material fact a nd the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Hartz concedes that he did not come fo rward with evidence to contradict the Martinez report, but argues his failure to do so should be excused. We disagree. As the district court explained, the Martinez report is part of the summary judgment record and, absent valid challenge, may be treated as providing unc ontroverted facts. Cf. Northington v. Jackson, 973 F.2d 1518 , 1521 (10th Cir. 1992) (explaining that a court cannot accept the factual findings of a Martinez report if th e prisoner presents conflicting evidence). To prevail on an Eighth Amendment cl aim for inadequate medical care, a plaintiff must show that defendants acted with “deliberate indi fference to serious medical needs.” Beggs, 563 F.3d at 1088 (quotation omitted). Deliberate indifference contains both objectiv e and subjective components. See id. “In regard5 to the objective element, a medical need is considered sufficien tly serious if the condition has been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the necessity for a doc tor’s attention.” Oxendine v. Kaplan, 241 F. 3d 1272, 1276 (10th Cir. 2001) (quotation and alteration omitted). As to “the subjectiv e element, we have stated th at a plaintiff must establish that defendant(s) knew he faced a substantial risk of harm and di sregarded that risk, by failing to take reasonable measures to abate it.” Id. (quotation omitted). We agree with the district court th at Hartz failed to create a tr iable issue of fact on either element. The uncontroverted evidence on summ ary judgment was that no medical provider diagnosed Hartz as requiring facial surgery. Notably, the specialist who examined Hartz opined that surgery was not medically necessary. Although Hartz might disagree with this diagnosis, “a diff erence of opinion with th e medical staff . . . does not rise to the level of a constitutional violation.” Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993). Further, the uncontroverted evidence shows that defendants examined and treated Hartz for his facial injuries and de ntal problems. In other words, setting aside whether there wa s a substantial risk of harm, there was no evidence that defendants disregarded Hartz’s medical n eeds.
III The judgment of the district court is affirmed. We grant Hartz’s motion to proceed in forma pauperis on appeal. He is reminded of his obligation to continue6 making partial payments until the entire fi ling fee has been paid in full. See 28 U.S.C. § 1915(b). Entered for the Court

Carlos F. Lucero Circuit Judge