BRILL v. VELEZ et al

Filing 21

MEMORANDUM OPINION AND ORDER. Pltf is not a "prevailing party" under 42 U.S.C. § 1983 and she is therefore not entitled to attorney's fees under to 42 U.S.C. § 1988. The Clerk shall CLOSE this matter. Signed by Judge Noel L. Hillman on 4/29/2015. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ADA BRILL,
Plaintiff,
v.
JENNIFER VELEZ, COMMISSIONER,
NEW JERSEY DEPARTMENT OF
HUMAN SERVICES; and VALERIE
HARR, DIRECTOR, NEW JERSEY
DEPARTMENT OF HUMAN SERVICES,
DIVISION OF MEDICAL
ASSISTANCE AND HEALTH
SERVICES,
Defendants.

CIVIL NO. 1:13-cv-05643
(NLH/AMD)
MEMORANDUM
OPINION & ORDER

Appearances:
JANE M. FEARN-ZIMMER
ROTHKOFF LAW GROUP
911 KINGS HIGHWAY SOUTH
CHERRY HILL, NJ 08034
Attorney for plaintiff Ada Brill
JENNIFER LAUREN CAVIN
MOLLY ANN MOYNIHAN
STATE OF NEW JERSEY
OFFICE OF THE ATTORNEY GENERAL
R.J. HUGHES COMPLEX
25 MARKET STREET
P.O. BOX 112
TRENTON, NJ 08625
Attorney for defendants Jennifer Velez and Valerie Harr

HILLMAN, District Judge
WHEREAS, in this case concerning allegations of violations
of subchapter XIX of the Social Security Act (“Federal Medicaid
Act”), 42 U.S.C. §§ 1396 to 1396w-5, the Court having previously
found that plaintiff’s complaint with regard to her request for
injunctive relief presented no justiciable controversy because
she received the benefits she was seeking in her complaint; and
The Court having therefore found that it lacked subject
matter jurisdiction over plaintiff’s claim for injunctive relief
because it was moot; but
The Court having issued an order to show cause with regard
to plaintiff’s argument that despite the mooting of her claims
for benefits, she was still entitled to attorney’s fees and
costs; and
The Court having observed that when plaintiff filed suit,
pursuant to 42 U.S.C. § 1983, against defendants to enjoin them
from delaying the decision to reconsider her Medicaid
application based on defendants’ incorrect view of plaintiff’s
annuity, the Court could not definitively find that it was a
result of plaintiff filing a federal lawsuit, even though
defendants provided plaintiff with the relief she sought soon
after she filed suit; and
The Court having further observed that the parties had not
briefed the issue of whether, when a defendant changes its
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position and voluntarily provides complete relief on an asserted
claim prior to a judgment or other judicial ruling, the
plaintiff could be considered a “prevailing party,” entitling
her to attorney’s fees and costs of prosecuting this action
pursuant to 42 U.S.C. § 1988 (“In any action or proceeding to
enforce a provision of section[ ] ... 1983 ... of this title,
the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney's fee as
part of the costs.”); and
The Court having directed defendants to show cause as to
why plaintiff was not entitled to attorney’s fees and costs as a
“prevailing party” under 42 U.S.C §§ 1983, 1988, and allowing
plaintiff to file a response thereto; and
Defendants having responded to the Court’s order,
presenting persuasive authority that the circumstances of this
case do not qualify plaintiff as a “prevailing” party so that
she is entitled to attorney’s fees, see Singer Management
Consultants, Inc. v. Milgram, 650 F.3d 223, 228 (3d Cir. 2011)
(citing Buckhannon Bd. & Care Home v. W. Va. Dep't of Health &
Human Res., 532 U.S. 598, 605 (2001); People Against Police
Violence v. City of Pittsburgh, 520 F.3d 226, 232 (3d Cir.
2008)) (explaining that “a plaintiff does not become a
‘prevailing party’ solely because his lawsuit causes a voluntary
change in the defendant's conduct; rather, the change in the
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parties’ legal relationship must be the product of judicial
action” and “a result of an enforceable judgment on the
merits”); and
The Court noting that plaintiff did not file any response
to defendants’ brief setting forth a different view on her
entitlement to attorney’s fees;
Accordingly, for good cause having been shown,
IT IS on this 29th day of April, 2015
ORDERDED that plaintiff is not a “prevailing party” under
42 U.S.C. § 1983 and she is therefore not entitled to attorney’s
fees under to 42 U.S.C. § 1988; and it is further
ORDERED that the Clerk of the Court shall mark this matter
as CLOSED.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

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