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WEST v. DAVY

August 15, 2005.

RICHARD WEST, Plaintiff,
v.
JAMES DAVY, et al., Defendants.



The opinion of the court was delivered by: GARRETT BROWN, District Judge

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OPINION

This matter comes before the Court upon Plaintiff Richard West's motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65. The parties have extensively briefed the matter, and a preliminary injunction hearing was held on August 3, 2005. Having considered the parties' written submissions and oral argument, and for the reasons set forth below, the Court will deny Plaintiff's motion.

I. BACKGROUND

  On July 19, 2005, Plaintiff Richard West filed a Complaint seeking temporary restraints and a preliminary injunction against Defendants James Davy ("Davy"), Ann Clemency Kohler ("Kohler"), and Maxim Healthcare Services ("Maxim") (collectively referred to as "Defendants").*fn1 Plaintiff seeks injunctive relief that would require Defendants to provide private duty nursing ("PDN") services to Plaintiff for seven days a week, eight hours a day. (Compl. at 5, ¶ 1).

  Plaintiff is a fifty-six year old man with muscular dystrophy, and a recipient of Medicaid benefits. Plaintiff is eligible under the Community Resources for People with Disabilities Program ("CRPD") to receive PDN services in his home. Maxim is a private organization that has contracted with the State of New Jersey to provide healthcare services under the Medicaid program. (Supplemental Decl. & Test. of Matthew Kroll ("Kroll Supp. Decl."), Ex. 3). Maxim provides, inter alia, PDN services to Medicaid recipients.

  Upon joining the Medicaid program, Plaintiff entered into an agreement of understanding with the New Jersey Department of Health and Senior Services which noted the Medicaid program's inability to guarantee services requested by Plaintiff. (Id., Ex. 4). Plaintiff signed the agreement on February 26, 2003. Additionally, Plaintiff entered into another agreement with Maxim on May 22, 2003. This agreement indicated that Plaintiff would receive at least three days written notification, or more if required by the state, prior to any reduction in services. (Id., Ex. 5).

  Since March 28, 2003, Plaintiff's Plan of Care certified that he was eligible for RN/LPN services up to seven days per week, eight hours a day. (Id., Ex. 6). During this time, Plaintiff received PDN services from various healthcare providers, including Maxim. In particular, over the course of more than two years, Maxim has provided Plaintiff with forty-two nurses. (Id., ¶ 20). At the time relevant to the Complaint, Maxim provided two nurses to care for Plaintiff every day of the week, eight hours each day. One nurse provided services five days a week. The second nurse provided services two days a week, on Wednesday and Thursday.

  Due to changes in management, and financial restructuring, Maxim recently reduced the pay rate of its nurses. (Id., ¶ 9). The new, lower pay rate was unacceptable to the nurse who was providing Plaintiff services two days a week, on Wednesday and Thursday. Maxim was unable to find a replacement nurse. On June 6, 2005, Maxim notified Plaintiff that it was no longer able to provide him with a private duty nurse on Wednesday and Thursday as of June 19, 2005. The letter informed Plaintiff that he would continue to receive skilled nursing services five days a week, eight hours a day. The letter further indicated that Plaintiff's case manager had been notified of the change, and included names and phone numbers of three other agencies that provide nursing services.

  Although the letter indicated that the change would take effect on June 19, 2005, the nurse continued to provide service until June 29, 2005. To date, Maxim and Plaintiff's case manager have continued to search for a replacement nurse. Maxim offered to make arrangements for the nurse who is currently caring for Plaintiff five days a week to work on Wednesday and Thursday as well. (Id., ¶ 12). Plaintiff did not accept this offer. (Id.). Additionally, Plaintiff was notified of other alternatives, including the ability to receive skilled nursing services every day by entering a nursing home. However, Plaintiff prefers to remain in his home. In the interim, Plaintiff has been provided with a Personal Emergency Response System ("PERS"), and is receiving services from a personal care assistant on Wednesdays and Thursdays until a replacement nurse can be provided.

  On July 1, 2005, Plaintiff filed a motion for emergent relief with the Director of Division of Disability Services ("DDS"). On July 8, 2005, William Sayre, Administrator of the Home and Community Services of DDS sent a letter informing Plaintiff that his request for relief could not be granted because DDS has not reduced or terminated any services, including PDN care. (Pl.'s Letter Br. in Supp. of Prelim. Inj., Ex. B). Thereafter, Plaintiff filed the Complaint in this action. On July 25, 2005, the Court heard oral argument on the Order to Show Cause why temporary restraints should not be entered. At that time, this Court denied Plaintiff's request for temporary restraints. Subsequently, the parties conducted expedited discovery, and a preliminary injunction hearing was held on August 3, 2005.

  II. DISCUSSION

  The "grant of injunctive relief is an extraordinary remedy which should be granted only in limited circumstances." Frank's GMC Truck Ctr., Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988). See also E.B. v. Poritz, 914 F. Supp. 85, 90 (D.N.J. 1996) (noting "[t]here is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing [of] an injunction."), rev'd on other grounds, 119 F.3d 1077 (3d Cir. 1997). The Court must consider four factors in determining whether to grant a motion for a preliminary injunction:
(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest.
Gerardi v. Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994) (citations omitted). An injunction should only be issued if Plaintiff produces sufficient evidence to convince the Court that all four factors warrant injunctive relief. Am. Tel. & Tel. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994). The Third Circuit has placed particular weight on the first two prongs of the four-part test. Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 197 (3d Cir. 1990). A. Plaintiff Fails to Demonstrate a Reasonable Probability of Success on the Merits

  In the present case, Plaintiff advances two arguments in support of his assertion that he is likely to succeed on the merits. First, Plaintiff contends that Defendants failed to provide him with adequate notice of a reduction or termination of services as required under federal and state law. Second, Plaintiff asserts that Defendants have violated the Equal Access provision of the Social Security Act, 42 U.S.C. § 1396a(a)(30)(A). The Court finds that Plaintiff has failed ...


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