                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                            May 9, 2017
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
CORNELIUS A. HARTZ,

     Plaintiff - Appellant,

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

     Defendants - Appellees.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, Chief Judge, McKAY and LUCERO, Circuit Judges.
                 _________________________________

      Cornelius Hartz appeals from a district court order granting summary

judgment in favor of defendants on his 42 U.S.C. § 1983 claim. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                            I

      Hartz’s claim centers on the failure to perform surgery to repair two facial

fractures he suffered in two separate incidents—one that occurred prior to his

incarceration and one that occurred while he was in pretrial detention. Because the

district court issued a comprehensive and well-reasoned Memorandum and Order

describing Hartz’s injuries and treatment, based primarily on a Martinez report

ordered by the court,1 we recite the facts only briefly.

      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 after 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 fractures, a new acute fracture overlaying two

partially dislocated teeth, and dental disease. The doctor did not recommend surgery

but advised that Hartz should see an otolaryngologist and follow a soft diet.

      Defendant Dennis Sale, D.O., head doctor at the Corizon Clinic, prescribed

pain medication and put Hartz on a soft diet. When Hartz continued 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 ordering preparation of prison administration
report for inclusion in record of a prisoner’s suit alleging constitutional violations by
prison officials).

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he received additional treatment, including ice packs and antibiotics. Dr. Sale also

authorized appointments with an otolaryngologist.

      Shortly thereafter, Hartz had a dental examination that disclosed 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 for the procedures, the

dentist cancelled the appointment. At an appointment with a different dentist on July

2, 2014, the root canals were performed and 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 ophthalmologist for blurry

vision. Throughout this time, Hartz continued to receive pain medication and other

treatment.

      Eventually, Hartz was examined by an otolaryngologist who determined that

facial surgery was not a medical necessity, but simply an elective procedure. When

Hartz pressed the issue, Brian Cole, director of the Shawnee 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 request for surgery.

      Hartz filed suit alleging that defendants were deliberately indifferent to his

medical needs when they denied him facial surgery. After the Martinez report was

filed, defendants moved for summary judgment. Hartz requested and was granted an

extension of time to respond. Nearly a month after the deadline expired, Hartz filed a

one-page response in opposition. A week later, he filed a document titled

                                           3
“Discovery,” which was docketed 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 concluded that Hartz failed to contradict

any of the material facts, and that defendants were entitled to judgment in their favor

as a matter of law. Hartz now appeals.

                                           II

      “We review the district court’s grant of summary judgment de novo, applying

the same legal standard used by the district court.” Martinez v. Beggs, 563 F.3d

1082, 1088 (10th Cir. 2009). Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

      Hartz concedes that he did not come forward 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 uncontroverted 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 the prisoner presents

conflicting evidence).

      To prevail on an Eighth Amendment claim for inadequate medical care, a

plaintiff must show that defendants acted with “deliberate indifference to serious

medical needs.” Beggs, 563 F.3d at 1088 (quotation omitted). Deliberate

indifference contains both objective and subjective components. See id. “In regard

                                           4
to the objective element, a medical need is considered sufficiently 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 doctor’s attention.”

Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (quotation and alteration

omitted). As to “the subjective element, we have stated that a plaintiff must establish

that defendant(s) knew he faced a substantial risk of harm and disregarded that risk,

by failing to take reasonable measures to abate it.” Id. (quotation omitted). We

agree with the district court that Hartz failed to create a triable issue of fact on either

element.

       The uncontroverted evidence on summary 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 difference of opinion with the 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 dental problems. In

other words, setting aside whether there was a substantial risk of harm, there was no

evidence that defendants disregarded Hartz’s medical needs.

                                            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 continue



                                             5
making partial payments until the entire filing fee has been paid in full. See

28 U.S.C. § 1915(b).

                                           Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




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