The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING DEFENDANTS' MOTION FOR AN ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS (Docs. 25) ORDER GRANTING DEFENDANTS BAUTISTA, LOPEZ, AND HEDGPETH'S REQUESTS TO JOIN MOTION TO REVOKE IFP (Docs. 32, 33, and 35) ORDER REQUIRING DEFENDANTS TO FILE RESPONSE TO COMPLAINT WITHIN THIRTY (30) DAYS
Plaintiff Shadale Williams ("plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On June 25, 2008, defendants Grannis, Brubaker, Hill, Arlitz, Tyson and Spaeth moved for an order revoking plaintiff's in forma pauperis ("IFP") status and requiring plaintiff to pay the filing fee. (Doc. 25). On July 11, 2008, plaintiff filed a document entitled "Plaintiff's Notice of Intent Regarding Defendants' Motion for Order Revoking IFP Statue". (Doc. 30). In it, plaintiff states that he does not intend to file an opposition.
II. Defendants Bautista, Lopez and Hedgpeth's Request to Join Defendants' Motion to Revoke IFP
On July 17 and 28, 2008, and August 5, 2008, defendants Bautista, Lopez and Hedgpeth respectively moved to join the motion to revoke plaintiff's in forma pauperis status. (Docs. 32, 33, 35). Defendants Bautista, Lopez and Hedgpeth's requests are granted, and accordingly, this motion is brought by defendants Grannis, Brubaker, Hill, Arlitz, Tyson, Spaeth, Bautista, Lopez and Hedgpeth (collectively "defendants").
Section 1915(g) of the Prison Litigation Reform Act ("PLRA") provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious injury." 28 U.S.C. § 1915(g).
The Ninth Circuit has advised that when assessing whether a case qualifies as a "strike" pursuant to section 1915(g), the terms "frivolous" and "malicious" must be defined by looking to their "ordinary, contemporary, [and] common meanings". Andrews v. King, 398 F. 3d 1113, 1121 (9th Cir. 2005). A case is frivolous if it is "of little weight or importance: having no basis in law or fact", and a case is malicious if it was filed with the "intention or desire to harm another". Id. (internal citations omitted). With respect to the phrase, "fails to state a claim upon which relief may be granted", the Court noted that the phrase used elsewhere in §1915 parallels the language in Rule 12(b)(6) of the Federal Rules of Civil Procedure, and that the language in §1915 should have the same meaning as in F.R.C.P. 12(b)(6). Id.; ref'g to Barren v. Harrington, 152 F. 3d 1193, 1194 (9th Cir. 1998).
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint," Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), and the Court may not look outside of the pleadings in resolving the motion. In considering a motion to dismiss for failure to state a claim under F.R.C.P 12(b)(6), 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 party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. A Court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))).
Finally, when a defendant challenges a prisoner's in forma pauperis status, the initial burden rests with the defendant to prove each strike. Andrews at 1120; see also O'Neal v. Price, 531 F. 3d. 1146, 1151 (9th Cir. 2008). If defendant meets this burden, the prisoner then bears the burden of persuading the court that the three strikes provision does not preclude his in forma pauperis status. Andrews at 1120.
Plaintiff filed this civil rights action on July 16, 2007, along with an application to proceed in forma pauperis. (Docs. 1, 2). Plaintiff's application was deficient as it did not include the required original signature by an authorized officer of the institution of incarceration, and plaintiff was ordered to file a new application or to pay the filing fee. (Doc. 4). On August 9 and 16, 2007 plaintiff resubmitted his application, and plaintiff was granted in forma pauperis status on August 28, 2007. (Docs. 7, 8, 9).
On June 25, 2008, defendants filed the instant motion to revoke plaintiff's in forma pauperis status, asserting that plaintiff had struck out under §1915(g). Defendants have submitted a Public Access to Court Electronic Records ("PACER") printout indicating that plaintiff has filed twenty-three separate actions in the District Courts. Of the twenty-three actions, defendants have submitted court records from the following three cases: Williams v. Myers, et al., N.D. Cal. C-91-20810 JW ("Myers"); Williams v. Marshall, N.D. ...