Burger v. Bloomberg
| Decision Date | 15 August 2005 |
| Docket Number | No. 04-3131.,04-3131. |
| Citation | 418 F.3d 882 |
| Parties | Tracy BURGER, as Personal Representative of the Estate of Anthony King, Appellant, v. Jeff BLOOMBERG; Doug Weber; Bob Dooley; Grace Schulte; Eugene Regier; Sioux Valley Hospital Association; State of South Dakota Department of Corrections, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Stephanie Pochop, Gregory, SD, for appellant.
Melissa C. Hinton and Mark F. Marshall, Sioux Falls, SD, for Appellees Schulte, Regier, and Sioux Valley Hospital Association.
James E. Moore and Cheri S. Raymond, Sioux Falls, SD, for Appellees Jeff Bloomberg, Doug Weber, Bob Dooley, and South Dakota Department of Corrections.
Before BYE, McMILLIAN, and RILEY, Circuit Judges.
Tracy Burger (Burger), as personal representative of Anthony King's (King) estate, appeals the district court's1 adverse grant of summary judgment. After King 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) (); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir.2005) (). Cf. Monahan v. Nebraska, 687 F.2d 1164, 1170-71 (8th Cir.1982) ().
Accordingly, we affirm. See 8th Cir. R. 47B.
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 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 (...
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...Plaintiff's medical care does not provide a basis upon which to impose liability under the RA or the ADA. See e.g., Burger v. Bloomberg, 418 F.3d 882, 882 (8th Cir. 2005) (medical treatment decisions not a basis for RA or ADA claims); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 129......
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