The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REQUIRING PLAINTIFFS TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE (Doc. 1) RESPONSE DUE WITHIN THIRTY DAYS
Plaintiffs Corey Taylor and Jostasha Taylor ("Plaintiffs"), appearing pro se and proceeding in forma pauperis, filed the instant action on June 24, 2010. Plaintiffs name Walmart, Inc. as Defendant.
Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the complaint for sufficiency to state a claim. The Court must dismiss a complaint or portion thereof if the Court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.
B. Failure to State a Claim
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
C. Federal Rule of Civil Procedure 8
Fed. R. Civ. P. 8(a) provides: A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief: and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
A complaint must contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiffs must allege with at least some degree of particularity overt acts which the Defendant engaged in that support Plaintiffs' claim. Id. Although a complaint need not outline all elements of a claim, it must be possible to infer from the allegations that all elements exist and that there is entitlement to relief under some viable legal theory. Walker v. South Cent. Bell Telephone Co., 904 F.2d 275, 277 (5th Cir. 1990); Lewis v. ACB Business Service, Inc., 135 F.3d 389, 405-06 (6th Cir. 1998).
D. Summary of Plaintiffs' Allegations
Plaintiffs allege that on March 2, 2010, they purchased tires at a Walmart in Odessa, Texas. "[D]efendants" claimed that the tires were compatible for Plaintiffs' 2002 Pontiac Grand Prix. Plaintiffs paid for the tires, along with a disposal fee, but defendant intentionally installed cheaper tires, which were "dangerously" incompatible for Plaintiffs' compact car and were made for a SUV-style vehicle. Plaintiffs allege that "defendants" also attempted to "extort extra money" by charging $10.00 per tire for balancing. Plaintiffs refused "her advances." The "defendant" then lied and said "she" gave Plaintiffs a free balance.
Plaintiffs allege that "defendants" were aware of the fact that Plaintiff Jotasha Taylor was in late term pregnancy and the installed tires were fatally incompatible with their family car. "She also knew" that they were traveling interstate. Plaintiffs further allege that the "she" attempted to hide the store's license number, typing "God Bless America" in that section, which was not a common practice for white customers. The defendant's last words were "have a bumpy ride."
Plaintiffs allege that they were forced drive through the night from Odessa, Texas to Shreveport, Louisiana. The ride allegedly was "brutal" for 7 months pregnant Mrs. Taylor. Plaintiffs then took their vehicle to Walmart #0448 in Shreveport, Louisiana. The "defendants" stated that it "was obvious" that a free balancing had not been performed and that it is not a Walmart policy to charge an extra $40 for tire balancing after the purchase of 4 new tires. They were given a free balancing.
Thereafter, Plaintiffs allege that they left for their home in Fresno, California. All the Walmart stores were closed. During the trip, the bumping multiplied at an alarming rate. Plaintiffs allegedly experienced a "life threatening" blow out of the driver side tire. Mr. Taylor had to change the tire on a dark highway. Plaintiffs allege that they had no ...