The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS
Findings and Recommendations Following Screening of Complaint
Plaintiffs Corey Taylor and Jotasha Taylor ("Plaintiffs") are proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1981. Plaintiffs filed this action on June 24, 2010. On July 29, 2010, the Court issued an order finding that Plaintiffs' complaint states cognizable claims against Defendant Walmart, Inc. for racial discrimination in violation of 42 U.S.C. § 1981, unlawful intimidation by use of force, fraud, and intentional infliction of emotional distress, but does not state claims for extortion, assault, violation of interstate commerce rights or intentional endangerment of a fetus. The Court ordered Plaintiffs to either file an amended complaint or notify the Court of their willingness to proceed only on the claims found to be cognizable. On July 30, 2010, Plaintiffs notified the Court that they do not wish to amend and are willing to proceed on the claims found cognizable. Based on Plaintiffs' notice, the instant Findings and Recommendations now issue.
II. Screening Requirement
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. III. 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).
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).
According to the Complaint, 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 ...