* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable John W. Lungstrum, District Judge, UnitedStates District Court for the District of Kansas, sitting by designation.

UNITED STATES COURT OF APPEALS Filed 10/22/96 FOR THE TENTH CIRCUIT

MICHAEL HENRY MARTIN,

Plaintiff-Appellant,

v. TULSA COUNTY BOARD OF COMMISSIONERS, JOHN SELPH, LEWIS HARRIS, ROBERT N. DICK, TULSA COUNTY SHERIFF DEPARTMENT, STANLEY GLANZ, and FRED COTTON,

Defendants-Appellees. No. 96-5063 (D.C. No. 94-C-193-H) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK and BRISCOE, Circuit Judges, and LUN GSTRUM, ** District Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiff, Michael Henry Martin, appeals from the d istrict court’s order granting summary judgment in favor of defendants onhis claim that they inflicted cruel and unusual punishment in violation of the Ei ghth Amendment. We affirm. We review the grant of summary judgment de novo, ap plying the same standard as the district court. Applied Genetics I nt’l, Inc., v. First Affiliated Secs., Inc. , 912 F.2d 1238, 1241 (10th Cir. 1990). “Summary j udgment is appropriate when there is no genuine dispute over amaterial fact and the moving party is entitled to judgment as a matter of law.” Russillo v. Scarborough , 935 F.2d 1167, 1170 (10th Cir. 1991). Plaintiff claims that defendants denied him dental treatment while he was incarcerated at the Tulsa County jail awaiting tria l on criminal charges. He alleges that defendants delayed or denied him surge ry on his jaw for several weeks due to the cost of the surgery, until he was transferred from the jail to the Department of Corrections. After he was transferre d, the Department of Corrections would be responsible for the cost. Pla intiff sued the county commissioners, claiming they failed to provide fund ing to pay for the dental-3-

treatment he needed during his stay at the jail. H e also sued the sheriff’s department and sheriff’s personnel, claiming they w ithheld the necessary
treatment. “The constitutional protection against deliberate i ndifference to a prisoner’s serious medical needs, as announced in Estelle v. G amble , 429 U.S. 97 (1976)(Eighth Amendment shields prisoners after adj udication), applies to pretrial detainees through the due process clause of the Fou rteenth Amendment.” Howard v. Dickerson , 34 F.3d 978, 980 (10th Cir. 1994). To establish a claim based on the Eighth Amendment, a prisoner must show both that “‘the officials act[ed] with a sufficiently culpable state of mind’ and [that] the alleged wrongdoing was objectively ‘harmful enough’ to establish a constitutional violation.” Hudson v. McMillian , 503 U.S. 1, 8 (1992)(quoting Wilson v. Seiter , 501 U.S. 294, 298, 303 (1991)). Delay in providing medical care to a pris oner constitutes deliberate indifference only if it results in substantial harm . Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993). Postponing surgery for an e xtended period, even until the prisoner’s release from prison, does not provide a cause of action for deliberate indifference to serious medical needs if the delay would not cause further damage. White v. Colorado , 82 F.3d 364, 366 (10th Cir. 1996). Here, the district court found that plaintiff had f ailed to controvert an affidavit submitted by Steven Sullivan, D.D.S., hea d of the oral and maxillofacial-4-

surgery department at Oklahoma Memorial Hospital, w ho supervised plaintiff’s surgery that was performed after plaintiff was tran sferred to the Department of Corrections. Dr. Sullivan stated that plaintiff’s condition was not adversely affected by the delay in performing the surgery, an d that a delay of several months would not have had any impact whatsoever on plaintiff’s condition. An affidavit submitted by Donal R. Woodward, D.D.S., the dental surgeon who treated plaintiff while he was at the jail, also st ated that any delay in performing the surgery, even a delay of several months, would not have had an impact on plaintiff’s condition. Plaintiff points to no evid ence to establish that his condition worsened because of a delay in surgery, o r that he suffered unnecessary pain. Accordingly, plaintiff’s failure “to establi sh the existence of an element essential to [his] case, . . . on which [he] will b ear the burden of proof at trial,” directs a finding that there exists “‘no genuine is sue as to any material fact.’” Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986)(quoting Fed. R. Civ. P. 56(c)). Moreover, plaintiff did not provide a comp lete record for our de novo review. If there exists any evidence to support hi s claims, we are unable to review it, and therefore must affirm the district c ourt. See Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979-80 (10th Cir. 1992).-5-

The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED. The mandate shall issue f orthwith. Entered for the Court
John W. Lungstrum District Judge