Ellis v. Wetherbee

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-60434 Summary Calendar

SHANIKA SHONTA BUSH ELLIS, through her guardian ad litem, Stephanie Ellis; JONATHAN TARRELL ELLIS, through his guardian ad litem, Catherine O'Banner; SHEMIKA N. HILL, through her guardian ad litem, Verendia Hill, on behalf of themselves and all others similarly situated,

Plaintiffs-Appellees,

VERSUS

HELEN WETHERBEE, in her official capacity as Executive Director of the Mississippi Division of Medicaid,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Mississippi (1:92-CV-529) May 5, 1997 Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

The Plaintiffs in this case filed suit alleging civil rights

violations under 42 U.S.C. § 1983. The Plaintiffs alleged that the

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Mississippi Department of Medicaid ("MDM") was not complying with

the Federal Medicaid Act. Medicaid is administered by states who

participate in the Medicaid program, such as Mississippi. The

participating states are subject to mandatory federal statutory and

administrative guidelines. Under the Federal Medicaid Act, a

program known as the Early and Periodic Screening, Diagnosis and

Treatment ("EPSDT") program was established to furnish medical

assistance to all Medicaid-eligible children under age 21. The

State of Mississippi, following federal guidelines, promulgated an

EPSDT Manual setting forth the terms and conditions of its program.

Following settlement of their dispute, the Plaintiffs sought

an award of attorneys' fees under 42 U.S.C. § 1988. The district

court granted the Plaintiffs' motion, and awarded fees and expenses

in the amount of $13,422.27 against MDM. MDM appeals the district

court's awarding of attorneys' fees to the Plaintiffs.

MDM argues that the Plaintiffs should not be afforded

"prevailing party" status as they did not obtain a final judgment

or any adjudication against MDM. We disagree. The Plaintiffs, in

their Complaint, asserted that the Mississippi EPSDT program

contravened with federal law. For example, Plaintiffs complained

that the Mississippi program required "prior authorization" for an

interperiodic lead screening test, whereas the federal law

precluded any prior authorization. Not until this suit was filed

and MDM's motion for summary judgment was denied did the State of

Mississippi change its EPSDT program to eliminate the prior

2 authorization requirement. As the district court found, the

Plaintiffs were successful in causing a substantial change in the

policy and procedures of the EPSDT lead testing program. After the

State of Mississippi agreed to change the policy and procedures of

its EPSDT program, the district court, based on this settlement,

dismissed the complaint as moot. Based on these facts, we conclude

the district court was correct in according the Plaintiffs

"prevailing party" status. See Farrar v. Hobby, 506 U.S. 103, 113

S. Ct. 566, 121 L. Ed. 2d 494 (1992) (stating that to qualify as a

prevailing party, the plaintiff must obtain comparable relief

through a consent decree or settlement). We find MDM's remaining

arguments to be without merit.

Therefore, this Court, having reviewed the record, the

parties' briefs, and the applicable law, finds that the district

court did not abuse its discretion in awarding attorneys' fees to

the Plaintiffs. We find it to be a close question but from an

examination of the record, we are persuaded that the district court

sufficiently considered and applied the factors enumerated in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.

1974), although the articulation of that process by the district

court is less than complete.

AFFIRMED.