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418 F.3d 882

Docket No. 04-3131.

Burger v. Bloomberg

Eighth Circuit Court of Appeals

Submitted: Aug. 5, 2005.

Filed: Aug. 15, 2005.

Eighth Circuit Court of Appeals · decided 2005-08-15

Cited by 8 later decisions — most recently February 2019

5 federal appellate ·

3 counsel of record

Applies 28 U.S.C. § 636

Relies on Monahan v. State of Nebraska · Harrison Jolly v. John Knudsen, Correctional Medical Systems, Ara Services, Inc., and Jerry Jorgensen · Fitzgerald v. Corrections Corp. of America

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 2005-08-15

View the full empirical analysis of this case →

¶1*883Stephanie Pochop, Gregory, SD, for appellant.

¶2Melissa C. Hinton and Mark F. Marshall, Sioux Falls, SD, for Appellees Schulte, Regier, and Sioux Valley Hospital Association.

¶3James E. Moore and Cheri S. Raymond, Sioux Falls, SD, for Appellees Jeff Bloom-berg, Doug Weber, Bob Dooley, and South Dakota Department of Corrections.

¶4Before BYE, McMILLIAN, and RILEY, Circuit Judges.

¶5PER CURIAM.

¶6Tracy 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

¶7Having 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 .... ”).

¶8Accordingly, we affirm. See 8th Cir. R. 47B.

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