                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS                August 13, 2008
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court



    STEVEN D. BEEM,

                Plaintiff-Appellant,

    v.                                                  No. 08-3019
                                            (D.C. No. 5:04-CV-03180-JWL-JPO)
    DALE A. DAVIS, D.D.S. - Doctor of                    (D. Kan.)
    Dental Science, DDS., Correct Care
    Solutions Medical Director in Topeka,
    Kansas; FRED C. CANNON, D.D.S. -
    Doctor of Dental Science, DDS.,
    Correct Care Solutions Dental
    Department Supervisor at El Dorado
    Correctional Facility in El Dorado,
    Kansas; WALTER J. KILCHER,
    D.D.S. - Doctor of Dental Science,
    DDS., Correct Care Solutions Dental
    Department at El Dorado Correctional
    Facility in El Dorado, Kansas,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiff Steven D. Beem, a Kansas inmate appearing pro se, appeals from

the district court’s order granting summary judgment to the defendants on his

claims under 42 U.S.C. § 1983 for the alleged violation of his Eight Amendment

rights. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      In August 2003, Mr. Beem’s upper dental plate was destroyed when he ran

over it with his wheelchair. Prison policy was to replace dental plates for free

once every five years. Because his plate was not that old, he was told that he

would have to pay a lab fee of $111 for a replacement. Although Mr. Beem had

more than $340 in his prison account, he waited to get fitted for a new plate until

late February 2004, when his wife sent a check. He received his new dentures in

April 2004. During the time he was without an upper plate, the defendants placed

him on a special diet to ensure proper nutrition. It was also during this time that

Mr. Beem began to complain about ear problems and a temporal mandibular jaw

(TMJ) condition.

      Mr. Beem’s complaint alleges that the defendants violated the Eighth

Amendment by their deliberate indifference to his serious medical needs. In

particular, he claims that the delay in providing him with new dentures and

improper treatment of his TMJ condition, resulted in eating difficulties, jaw pain

and discomfort, tinnitus, and hearing loss.



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      “Summary judgment is appropriate in cases where the record discloses no

genuine issue as to any material fact. In a deliberate indifference case under the

Eighth Amendment, we look at the factual record and the reasonable inferences to

be drawn from the record in the light most favorable to the non-moving party.”

Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (internal citations and

quotation marks omitted). Nonetheless, as the non-moving party, Mr. Beem was

required to “go beyond the pleadings and designate specific facts so as to make a

showing sufficient to establish the existence of an element essential to [his] case

in order to survive summary judgment.” Id. Thus, he needed to present evidence

that was “based on more than mere speculation, conjecture, or surmise.” Id.

      “[P]rison 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.

(quotation marks omitted). However, “a complaint that a physician has been

negligent in diagnosing or treating a medical condition [does not] state a valid

claim of medical mistreatment under the Eighth Amendment.” Id.

      We use “a two-prong inquiry, comprised of an objective and subjective

component,” id., to determine whether prison officials have been deliberately

indifferent to a prisoner’s serious medical needs. “Under the objective inquiry,

the alleged deprivation must be sufficiently serious to constitute a deprivation of

constitutional dimension. . . . [U]nder the subjective inquiry, the prison official

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must have a sufficiently culpable state of mind. Id. at 1230-31 (internal citation

and quotation marks omitted).

      Mr. Beem’s first argument is that the prison’s policy requiring him to pay

a lab fee of $111 for replacement dentures is unconstitutional. The cases he cites

are inapposite, however, because this is not a situation where he was denied

medical treatment because he was unable to pay; instead, he was responsible for

the delay because he decided to wait for a check from his wife instead of using

the money in his account.

      He has also failed to meet the objective test of establishing that the delay in

receiving a new upper dental plate resulted in sufficient harm to constitute a

deprivation of constitutional dimension. Although Mr. Beem claims that he could

not eat as well without an upper plate, he was put on a special diet and was able

to eat liquified foods. Further, there is no evidence to support his claim that the

delay in receiving new dentures exacerbated his TMJ condition.

      Last, Mr. Beem claims that the defendants “disregarded repeated requests

from him to improve his (TMJ) disorder and made only feeble attempts at best.”

Aplt. Op. Br. at 8. This is simply an argument that the defendants were negligent




                                          -4-
in treating his TMJ condition and does not state a valid claim of medical

mistreatment under the Eighth Amendment.

      The judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   Timothy M. Tymkovich
                                                   Circuit Judge




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