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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]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