ROZIER v. ROZUM et al

Filing 60

ORDER denying 58 Motion for Attorney Fees with prejudice. Signed by Magistrate Judge Maureen P. Kelly on 9/12/2012. (ndf )A copy of this Order has been forwarded to Plaintiff this 12th day of September, 2012, via U.S. Mail to Ernest Rozier, DJ-8293, SCI Greene, 175 Progress Drive, Waynesburg, PA 15370.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERNEST ROZIER,

)
)
) Civil Action No. 11-142 J
vs.
) District Judge Kim R. Gibson
) Magistrate Judge Maureen P. Kelly
GERALD L. ROZUM, Superintendent,
)
SYLVIA GIBSON, D.S.C.S., RICHARD S.
)
EHERS, D.H.C.S., DENISE THOMAS,
)
CHCA, GERALD PUSKAR, Nurse
)
Supervisor, BOBBI McCALLISTER, PA,
)
JEREMY HUNTER, Nurse Practitioner,
)
DORINA VARNER, Chief Grievance Officer, )
TRACY WILLAIMS, Deputy Grievance
)
Officer,
)
Defendants.
)
Plaintiff,

MEMORANDUM ORDER
Plaintiff Ernest Rozier has filed a Motion for Attorney’s Fees and Expenses associated
with the above-captioned litigation [ECF No. 58], claiming his entitlement to recovery pursuant
to 42 U.S.C. § 1988. Section 1988(b) provides that in an action seeking to enforce 42 U.S.C. §
1983, “the court, in its discretion, may allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of costs….” Evans v. Port Auth. Of N.Y., 273 F.3d 346, 358
(3d Cir. 2001).
In Farrar v. Hobby, 506 U.S. 103 (1992), the United States Supreme Court addressed the
question of what constitutes a “prevailing party” and held that a plaintiff prevails when he
receives an enforceable money judgment of any size or “when actual relief on the merits of his
claim materially alters the legal relationship between the parties by modifying the defendant's
behavior in a way that directly benefits the plaintiff.” Id. at 111-112.

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Given that Plaintiff’s action has been dismissed by Order dated August 29, 2012, [ECF
No. 57] on Defendants’ Motions to Dismiss, he is not the prevailing party. In this case, the
Defendants are the prevailing party, and upon motion, may recover an attorney’s fee if there is a
finding that Plaintiff’s suit was vexatious, frivolous, or brought to harass or embarrass the
defendant. Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151, 157–58 (3d Cir. 2001).
Plaintiff, however, plainly is not entitled to recover such fees and costs. An appropriate Order
follows.
ORDER
AND NOW, this 12th day of September, 2012, upon consideration of Plaintiff’s Motion
for Attorney’s Fees and Expenses [ECF No. 58], IT IS HEREBY ORDERED that Plaintiff’s
Motion is DENIED with prejudice.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of
the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to
file an appeal to the District Judge which includes the basis for objection to this Order. Failure
to file a timely appeal will constitute a waiver of any appellate rights.

/s/ Maureen P. Kelly
United States Magistrate Judge
cc:

The Honorable Kim R. Gibson
United States District Judge
Ernest Rozier
DJ-8293
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
All counsel of record via CM/ECF
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