John Christopher Berkery v. Doctor Lee D. Kaplan , 518 F. App'x 813 ( 2013 )

Case: 12-12027 Date Filed: 05/10/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12027
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-22684-MGC
JOHN CHRISTOPHER BERKERY,
Plaintiff-Appellant,
versus
DOCTOR LEE D. KAPLAN,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 10, 2013)
Before TJOFLAT, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
John Berkery, proceeding pro se, appeals the district court’s sua sponte
dismissal, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on
Case: 12-12027 Date Filed: 05/10/2013 Page: 2 of 4
which relief may be granted, of his civil complaint brought under Title III of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182, and the
Rehabilitation Act of 1973 (“RA”) § 504, as amended, 29 U.S.C. § 794. Berkery
argues that the district court erred in finding that there was no private right of
action for damages or individual capacity liability under the ADA or the RA. 1
Berkery’s complaint alleged that, as a veteran, he sought treatment for a torn
rotator cuff at the Bureau of Veterans Affairs (“VA”) Medical Center and was
referred to Dr. Lee Kaplan, a private surgeon working at the University of Miami
Hospital. After the VA sent Berkery’s medical records to Dr. Kaplan, Dr. Kaplan
notified Berkery that he would not perform the surgery, citing Berkery’s substance
abuse. Another surgeon later performed the surgery. Berkery alleged that Dr.
Kaplan’s refusal to treat him stemmed from discrimination based on Berkery’s
bipolar condition, thereby violating Title III of the ADA and the RA, and sought
monetary damages as his sole form of relief.
1
Berkery also contends that the district court erred in dismissing claims brought under
state law. However, because Berkery’s notice of appeal specifically limited his appeal to the
district court’s dismissal of his claims under Title II of the ADA and the RA, and explicitly
stated that he withdrew his state law claims, we dismiss Berkery’s appeal regarding his state law
claims for want of jurisdiction. See Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528
(11th Cir. 1987), affirmed, 489 U.S. 169 (1989) (“[W]e will not expand [a notice of appeal] to
include judgments and orders not specified unless the overriding intent to appeal these orders is
readily apparent on the face of the notice.”).
2
Case: 12-12027 Date Filed: 05/10/2013 Page: 3 of 4
We review de novo a district court’s sua sponte dismissal under 28 U.S.C.
§ 1915(e)(2)(B)(ii) of an in forma pauperis complaint for failure to state a claim on
which relief may be granted. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir.
2003). Dismissal is appropriate if the complaint, on its face, does not state a
plausible claim for relief, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), mindful that
pro se pleadings must be liberally construed. Tannenbaum v. United States, 148
F.3d 1262, 1263 (11th Cir. 1998).
The district court properly dismissed Berkery’s claim under Title III of the
ADA because, as this Court has noted, “there is no private right of action for
money damages” under Title III, which provides for money damages only where
the civil action is initiated by the Attorney General. Jairath v. Dyer, 154 F.3d
1280, 1283 and n.7 (1998). We have further noted that a plaintiff in Berkery’s
position, who has already received the refused medical treatment from another
doctor, lacks standing to assert a claim for injunctive relief under Title III. Id. at
1283 n.8 (explaining that because the plaintiff already received the refused medical
procedure from another doctor there was “no remedy under the ADA for
defendant’s past act of refusing treatment” and therefore the plaintiff lacked
standing under the ADA).
3
Case: 12-12027 Date Filed: 05/10/2013 Page: 4 of 4
The district court also properly dismissed Berkery’s claim under the RA
because his complaint did not allege any violation under that act. The RA states, in
relevant part, that, “[n]o otherwise qualified individual with a disability . . . shall,
solely by reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). However, Dr.
Kaplan’s medical services are not a “program or activity” as that term is defined
under the act, id. § 794(b), nor does the act provide for individual liability. 2 See,
e.g., Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.
2001) (explaining that § 504 of the RA does not provide for individual capacity
suits).
Consequently, the order of the district court is AFFIRMED IN PART, and
the remainder of Berkery’s appeal is DISMISSED.
2
Berkery also contends that the district court erred in dismissing his claims under the
ADA and RA with prejudice. However, as he raises this argument for the first time in his reply
brief, we consider this claim abandoned and do not consider it. Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008) (deeming as abandoned issues that a pro se litigant raises for the first
time in a reply brief).
4