Tracy Burger v. Jeff Bloomberg ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3131
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Tracy Burger, as Personal *
Representative of the Estate of *
Anthony King, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Jeff Bloomberg; Doug Weber; Bob *
Dooley; Grace Schulte; Eugene Regier; *
Sioux Valley Hospital Association; * [PUBLISHED]
State of South Dakota Department of *
Corrections, *
*
Appellees. *
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Submitted: August 5, 2005
Filed: August 15, 2005
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Before BYE, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Tracy Burger (Burger), as personal representative of Anthony King’s (King)
estate, appeals the district court’s1 adverse grant of summary judgment. After King
1
The Honorable John E. Simko, United States Magistrate Judge for the District
of South Dakota, to whom the case was referred for final disposition by consent of
died while in the custody of the South Dakota Department of Corrections (DOC),
Burger sued the DOC, certain DOC officials, the Sioux Valley Hospital Association,
and two medical professionals, claiming violations of section 504 of the
Rehabilitation Act (Rehab Act). Burger based her claim on allegations of inadequate
medical care for King’s diabetes.2
Having conducted a de novo review of the record, see Jolly v. Knudsen, 205
F.3d 1094, 1096 (8th Cir. 2000), we agree with two other circuits that have recently
concluded a lawsuit under the Rehab Act or the Americans with Disabilities Act
(ADA) cannot be based on medical treatment decisions, see, e.g., Schiavo ex rel.
Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005) (Rehab Act, like ADA,
was never intended to apply to decisions involving medical treatment); Fitzgerald v.
Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (inmate’s claims under
Rehab Act and ADA were properly dismissed for failure to state claim as they were
based on medical treatment decisions). Cf. Monahan v. Nebraska, 687 F.2d 1164,
1170-71 (8th Cir. 1982) (“We do not read § 504 as creating general tort liability for
educational malpractice . . . .”).
Accordingly, we affirm. See 8th Cir. R. 47B.
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the parties pursuant to 28 U.S.C. § 636(c).
2
Burger waived her remaining claims on appeal. See Shade v. City of
Farmington, Minn., 309 F.3d 1054, 1058 n.6 (8th Cir. 2002).
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