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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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