United States District Court, E.D. North Carolina, Western Division
C. Dever III Chief United States District Judge.
April 10, 2017, Bruce Bunting ("Bunting" or
"plaintiff), a state inmate proceeding pro se and in
forma pauperis [D.E. 6, 10], filed a complaint [D.E. 1]. On
April 17, 2017, Bunting filed a motion for an emergency
injunction [D.E. 4]. On April 20, 2017, Bunting filed a
corrected complaint [D.E. 5], He named as defendants Governor
Roy A. Cooper, the University of North Carolina
("UNC") Medical Center, and Craven Correctional
Institution physician Dr. Engleman. On May 12, 2017,
Magistrate Judge Numbers directed the Attorney General of
North Carolina to respond to the motion for emergency
injunction [D.E. 11]. On May 22, 2017, the Attorney General
responded in opposition [D.E. 12].
23, 2017, Judge Numbers issued a Memorandum and
Recommendation ("M&R") [D.E. 14], recommending
that the court deny Bunting's motion for an emergency
injunction and dismiss the corrected complaint. Id.
at 6-9. On May 31, 2017, Bunting filed a motion to amend his
motion for emergency injunction [D.E.15]. On June 2, 2017,
Bunting filed objections to the M&R [D.E. 17].
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Accident Tns. Co., 416 F.3d
310.315 f4th Cir. 2005) (alterations, emphasis, and quotation
omitted). See 28 U.S.C. § 636(b). Absent a timely
objection, "a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation." Diamond. 416 F.3d at 315
court has reviewed the M&R, the record, and Bunting's
objections. As for those portions of the M&R to which
Bunting made no objection, the court is satisfied that there
is no clear error on the face of the record.
is 66 years old and has been diagnosed with Stage-4 lung
cancer in both lungs. Mot. for Emergency Inj. [D.E. 4]; Resp.
to Mot. for Emergency Inj. [D.E. 12] 1. Bunting received
treatment over the course of several months through the UNC
Medical Center. Smith Aff. [D.E. 13] ¶ 5. Despite the
treatment, Bunting's cancer has advanced and his
prognosis is poor. Id. ¶ 6. He alleges that the
prison medical providers, "in a conspiracy, "
failed to provide him a double lung transplant. See
Initial Compl. [D.E. 1] 1. He asks the court to require the
defendants to place him at the top of the lung organ donor
list, locate two matching lungs, and perform a two-lung
transplant surgery immediately. See Corrected Compl. [D.E. 5]
¶ VII; see also Mot. for Emergency Inj. [D.E.
North Carolina Department of Public Safety
("NCDPS") approved all of the appointments and
treatment that the Medical Center recommended until March
2017 when Bunting refused to continue treatment. Id.
¶ 5. At that time, Bunting decided to forego palliative
chemotherapy treatment and has refused a follow-up
appointment with an oncologist. Id. ¶ 6.
continues to provide medical care to Bunting and assist him
with pain management. Id. ¶ 9. Bunting can
request that he be seen by the prison medical staff and has
done so as recently as May 17, 2017. Id. At that
appointment, Bunting did not request any change in treatment
or seek an appointment with an oncologist. Id.
Numbers found that
Bunting's cancer was diagnosed in February 2016. See Mot.
for Emergency Inj. at 2, D.E. 4. Bunting acknowledges that
Dr. Engleman has provided him medical treatment for his
terminal illness. Id. However, Dr. Engleman has told
him that further treatment will not benefit him.
Id.; see also Compl. ¶ V. Thus,
Bunting has not alleged that Dr. Engleman ignored or
disregarded his medical needs, or failed to treat
him for his cancer. Bunting also has not alleged
that any medical professional has recommended a double lung
transplant, or that a double lung transplant is medically
indicated for Bunting. At most, Bunting has shown that he
disagrees with Dr. Engleman's diagnosis and opinion as to
the course of medical treatment for his cancer. A
disagreement between an inmate and a physician over a
particular course of treatment will not support a claim for
deliberate indifference. United States v. Clawson.
650 F.3d 530, 538 (4th Cir. 2011) ("[W]e have
specifically held that a mere difference of opinion regarding
the adequate course of treatment does not give rise to an
Eighth Amendment violation.").
M&R [D.E. 14] at 7-8.
order to establish his Eighth Amendment
deliberate-indifference claim, Bunting must make both an
objective showing that he has a "serious medical
need" and a subjective showing that defendants acted
with "deliberate indifference" to Bunting's
serious medical need. Deo v. Shreve. -535 F.3d 225,
241 (4th Cir. 2008); see Estelle v. Gamble. 429 U.S.
97, 104 (1976). Although Bunting has shown he has a serious
medical need, he failed to show that defendant acted with
"deliberate indifference" to his serious medical
need. See M&R at 7-8.
objects to this conclusion and argues that defendants
"did not inform [him] of the possibility he could live
many more years, if he received [a lung transplant], "
and instead told him "nothing else could be done to help
him." Obj. [D.E. 17] 1-2. Bunting alleges that
defendants "gave [him] [a] false impression that all he
could do at this point is to wait on death."
Id. at 1. In support of his claim, Bunting cites
Inmates of the Allegheny County Jail v. Pierce. 612
F.2d 754, 763 (3d Cir. 1979).
of the Allegheny County Jail does not support
Bunting's claim. In that case, the court held that where
the defendants refused to have medical professionals diagnose
and treat inmates for mental illness, the defendants violated
Estelle. See id. Unlike Inmates of the
Allegheny County ...