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Bijaoui v. Ca Department of Social Services

United States District Court, D. South Dakota, Southern Division

April 1, 2019

NADIA JUDITH BIJAOUI, Plaintiff,
v.
CA DEPARTMENT OF SOCIAL SERVICES; YORK RISK SERVICES GROUP; and WELLCOMP MANAGED CARE, Defendants.

          OPINION AND ORDER SCREENING CASE AND GRANTING LEAVE TO AMEND

          Lawrence L. Piersol United States District Judge.

         On August 31, 2018, plaintiff Nadia Bijaoui ("Plaintiff), appearing pro se, filed a complaint ("Complaint") alleging claims of negligence, deceit, fraud, and conspiracy against the named defendants ("Defendants"). Doc. 1. Plaintiff asserts that this Court has jurisdiction over this case because the amount in controversy exceeds $75, 000 and the parties are citizens of different states. See 28 U.S.C. § 1332 (diversity jurisdiction).

         In her Complaint, Plaintiff alleges that the office of her primary treating physician in Sioux Falls has contacted Defendants at least fifty (50) times through phone calls, emails, and faxes to obtain authorization from Defendants for Plaintiffs medical treatments to which she is entitled under Workers' Compensation and that Defendants have either denied or ignored these requests for authorization. Addendum to Compl. 2. Plaintiff also alleges that Defendants have conspired to deny Plaintiff medical treatment for her injuries covered under Worker's Compensation. Addendum to Compl. 2.

         Plaintiff filed a motion to proceed without prepayment of fees ("IFP") and a financial affidavit, Doc. 3, and a motion to electronically file documents, Doc. 4. The Court denied Plaintiffs motion to electronically file documents and granted Plaintiffs motion to proceed IFP. Doc. 6. Before the Court undertook its preservice review of Plaintiffs claims pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court ordered Plaintiff to file a copy of the April 2017 stipulation agreement that she referenced in her Complaint as an addendum to the Complaint. Plaintiff filed a copy of the stipulation agreement ("Stipulation Agreement") with the Court on October 11, 2018. Doc. 7.

         I. Preservice Screening Under 28 U.S.C. 1915(e)(2)(B)

         Under § 1915(e)(2)(B), the Court must review the claims in the complaint to determine if they are (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant who has immunity. See 28 U.S.C. § 1915(e)(2)(B). A complaint fails to state a claim upon which relief may be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiffs complaint "does not need detailed factual allegations. . . .[but] requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements. . . ." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id. When determining whether a complaint fails to state a claim upon which relief may be granted, this Court "assumes as true all factual allegations in the pleadings, interpreting them most favorably to the [pleader]." Magee v. Trustees of Hamline Univ., 141 F.3d 532, 534-35 (8th Cir. 2014) (citation omitted).

         Because Plaintiff is proceeding pro se, her pleading must be liberally construed and her Complaint, "however inartfully pleaded" is held "to less stringent standards than formal pleadings drafted by lawyers" Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). Such a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle her to relief. Id. (citation omitted). A court, however, is not required to supply additional facts for a, pro se plaintiff, nor construct a legal theory that assumes facts which have not been pleaded. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

         In determining whether Plaintiff has stated a claim for relief in this suit based on diversity of citizenship jurisdiction, the Court shall apply the substantive law of the forum state. Archer v. Pavement Specialist, Inc., 278 F.3d 845, 846-47 (8th Cir. 2002); see also Harms v. Cigna Ins. Co., 421 F.Supp.2d 1225 (S.D. 2006) (applying South Dakota common law to diversity case alleging bad faith denial of workers' compensation benefits).

         A. Fraud and Deceit Claims

         In her complaint, Plaintiff alleges claims of fraud and deceit against Defendant.

         SDCL § 15-6-9(b) requires that "[i]n all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with particularity. N.A. Truck & Trailer, 751 N.W.2d 710, 713 (S.D. 2008) (quoting SDCL § 15-6-9(b)). "Malice, intent, knowledge, and other condition of the mind of the person may be averred generally." Id. "[A] pleading based on fraud [or deceit] as a basis of recovery of damages must allege all the essential elements of actionable fraud [or deceit] to be sufficient." Id. at 713-14 (quoting Holy Cross Parish v. Huether, 308 N.W.2d 575, 576 (S.D. 1981) (citation omitted)). The essential elements of actionable fraud are:

(T)hat a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury or damage.

Id. at 713 (quoting Northwest Realty Co. v. Colling,82 S.D. 421, 433 (1966)). The elements of the tort ...


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