Lopez v. Smith

203 F.3d 1122, 46 Fed. R. Serv. 3d 494, 2000 Cal. Daily Op. Serv. 1096, 2000 Daily Journal DAR 1585, 2000 U.S. App. LEXIS 1740, 2000 WL 144385

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2000
• Docket: No. 97-16987
• Status: Published

Opinions

Opinion by Judge MICHAEL DALY HAWKINS; Concurrence by Judge RYMER; Dissent by Judge SNEED.

MICHAEL DALY HAWKINS, Circuit Judge:

The Prison Litigation Reform Act of 1995 (“PLRA”) provides that a district court “shall dismiss” an in forma pauperis complaint “if the court determines that ... the action or appeal ... fails to state a claim on which relief may be granted.” Pub.L. No. 104-134, § 804(a)(5), 110 Stat. 1321, 1321-74 (1996), codified at 28 U.S.C. § 1915(e)(2) (1996). We took this case en banc to decide whether that provision deprives a district court of its historical discretion to dismiss such a complaint with leave to amend and mandates instead that the dismissal be tuithout leave to amend. Because the PLRA does not clearly state that dismissal must be without leave to amend, we hold that a district court retains its discretion over the terms of a dismissal for failure to state a claim, including whether to make the dismissal with or without leave to amend.

I.

BACKGROUND

On October 30, 1995, appellant Max Lopez, a prisoner at Corcoran State Prison, filed a section 1983 complaint in forma pauperis against defendants Warden G.A. Smith, Chief Medical Officer Dr. Larry Loo," Chief Dental Officer Acevedo, Dr. Tierney (whose name was misspelled as Keiner in the complaint), Counselor Patterson, and Appeals Coordinator McClure (whose title, but not name, was included in the complaint). Lopez alleged that the defendants (1) knowingly placed him in a cell with a. dangerous inmate who subsequently injured him; (2) provided him inadequate medical care while he was recovering , from his injury; (3) denied him outdoor exercise during his recovery; and (4) deliberately mistreated him during a bus transfer between prisons.¹

Shortly after the complaint was filed, a magistrate judge reviewed Lopez’s complaint and found that it stated colorable claims and should be served on the defendants. The magistrate judge also instructed Lopez to “amend his pleadings accordingly as soon as he is able to ascertain the defendant Appeal Coordinator’s name.” On April 2, 1996, Lopez filed a pleading titled “Amend Complaint,”- which stated that Lopez “request [sic] leave to file an amended complaint.” The pleading then named McClure as the Appeals Coordinator and corrected the spelling of one other defendant’s name. The pleading also stated that the original complaint had “named a John Doe as the transportation sgt. defendant” and explained that Lopez wanted to “have the John Doe or as mentioned in the Complaint as the transportation sgt. to be put on record.”

The magistrate judge treated the pleading as an amended complaint rather than as a request for leave to amend the complaint.² But because the pleading did not restate the allegations of the original complaint, the magistrate judge characterized it as “woefully incomplete” and stated that although “plaintiff asserts that he named a John Doe transportation sergeant as a defendant in his original complaint ... [t]his is simply not true. Plaintiff discusses this person, but never names him as a defendant.” The magistrate judge also denied leave to amend the complaint further, noting that the court usually provides only one opportunity to amend and that Lopez had failed to make a showing of good cause for additional amendments.

On May 20, 1996, the defendants filed a motion to dismiss and for summary judgment, and Lopez filed a cross motion for summary judgment. On May 27, 1997, the magistrate judge recommended that defendants’ motion be granted. The magistrate judge found that Lopez’s first and fourth causes of action — that defendants knowingly placed him in a cell with a dangerous inmate and deliberately mistreated him during a prison transfer — did not state a claim on which relief could be granted because Lopez had failed to name as defendants the individuals who caused his alleged injury.³ He therefore recommended that these claims be dismissed without prejudice.⁴ The magistrate judge then concluded that summary judgment should be entered in favor of defendants on the remaining claims. After reviewing Lopez’s objections, the district court adopted the magistrate judge’s findings and recommendations in full.

On appeal, Lopez argued that the district court erred in granting the motion to dismiss without giving him an opportunity to amend his complaint. A panel of this court rejected his argument. See Lopez v. Smith, 160 F.3d 567 (9th Cir.1998). Although the panel acknowledged that longstanding Ninth Circuit case law required a district court to provide a pro se claimant an opportunity to amend, it held that the PLRA had overruled this precedent. Raising the issue sua sponte, the panel concluded that the phrase “shall dismiss” required district courts to dismiss without leave to amend any in forma pauperis complaint that failed to state a claim for relief. The panel maintained that this reading of the statute was consistent with Congress’s desire to “reduce docket pressure on federal courts caused by a burgeoning prisoner-litigant caseload.” Id. at 570. It also noted that the Sixth Circuit had reached the same conclusion in In Re Prison Litig. Reform Act, 105 F.3d 1131, 1138 (6th Cir.1997).⁵

The panel also affirmed the grant of summary judgment. It held that Lopez had presented no evidence that prison officials were deliberately indifferent to his medical needs. It also held that temporary denial of outdoor exercise with no adverse medical effects is not a substantial deprivation of rights in violation of the Eighth Amendment.

We vacated the panel’s decision on April 12, 1999 and granted rehearing en banc. See Lopez v. Smith, 173 F.3d 749 (9th Cir.1999). We now reverse the district court’s decision to dismiss without leave to amend. In doing so, we must address the panel’s interpretation of the PLRA. Contrary to the suggestion in Judge Rymer’s concurrence, we have jurisdiction to consider this issue even though the district court dismissed Lopez’s claims pursuant to a 12(b)(6) motion, not the PLRA. This is because a district court’s decision must be affirmed if it can be supported on any ground, even one not relied upon by the district court. See United States v. $129,374 in United States Currency, 769 F.2d 583, 586 (9th Cir.1985); Salmeron v. United States, 724 F.2d 1357, 1364 (9th Cir.1983). Thus, if the PLRA precludes leave to amend when an in for-ma pauperis complaint is dismissed for failure to state a claim, the district court’s decision must be affirmed.⁶ Of course, we conclude that the PLRA does not preclude leave to amend. But only by reaching that conclusion can we decline to affirm the district court’s ruling.

We also reverse the grant of summary judgment as to both of Lopez’s claims.

II.

DISCUSSION

A. Dismissal For Failure to State a Claim

1. The PLRA

The PLRA contains several provisions that require district courts to screen lawsuits filed by prisoners and to dismiss those suits sua sponte under certain circumstances. Among these provisions is section 804(a)(5), which is codified as part of the in forma pauperis statute at 28 U.S.C. § 1915(e)(2).⁷ That section reads as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that—

(A) the allegation of poverty is untrue; or

(B) the action or appeal

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.

Section 1915(e) replaced former section 1915(d), which provided that a district court “may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d) (1994). The Supreme Court held in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), that section 1915(d) did not authorize district courts to dismiss, sua sponte, a complaint for failure to state a claim, and it is clear that Congress intended that the PLRA overrule that decision. It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998).

However, it is not clear that section 1915(e) precludes a district court from dismissing a complaint with leave to amend. The statutory language says only that a court “shall dismiss” a complaint. It does not say that such a dismissal must be without leave to amend. Indeed, one can only reach that conclusion by reading the phrase “shall dismiss” as “shall dismiss without leave to amend.” But nothing in the statute requires us to read the language in a way that would deprive the district courts of their traditional discretion to grant leave to amend.

There is, however, substantial reason not to construe the statutory language in a manner that would eliminate that discretion. The language of section 1915(e)(2), as it applies to dismissals for failure to state a claim, “parallels the language of Federal Rule of Civil Procedure 12(b)(6).” Barren, 152 F.3d at 1194. And in a line of cases stretching back nearly 50 years, we have held that in dismissing for failure to state a claim under Rule 12(b)(6), “a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995); see also Cook, Perkiss & Liehe, Inc. v. Northern Cal. Collection Serv., Inc., 911 F.2d 242 (9th Cir.1990); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir.1990); Noll v. Carlson, 809 F.2d 1446 (9th Cir.1987); Bonanno v. Thomas, 309 F.2d 320 (9th Cir.1962); Sidebotham v. Robison, 216 F.2d 816 (9th Cir.1954).

This amendment policy is informed by Federal Rule of Civil Procedure 15(a), which provides that leave to amend should be freely granted “when justice so requires.” Although Rule 15(a) gives the trial court discretion over this matter, we have repeatedly stressed that the court must remain guided by “the underlying purpose of Rule 15 ... to facilitate decision on the merits, rather than on the pleadings or technicalities.” Noll, 809 F.2d at 1448. Congress, of course, is free to alter the underlying purpose of Rule 15 or to overrule our precedent. But we hesitate to presume Congress has done so by providing that courts “shall dismiss” in forma pauperis complaints that fail to state a claim, especially when Congress has used the words of Rule 12(b)(6). A clearer expression of congressional intent should be required before we discard 50 years of case law.

The Supreme Court has yet to consider the meaning of section 1915(e)(2).⁸ But several other circuits have issued opinions supporting our conclusion. In Gomez v. USAA Federal Savings Bank, 171 F.3d 794 (2d Cir.1999), the Second Circuit held that the district court erred by not granting leave to amend when it dismissed a complaint under section 1915(e)(2)(B)(ii). The court acknowledged that the dismissal “language of § 1915 is mandatory.” Id. at 796. Nevertheless, the court held:

[A] pro se plaintiff who is proceeding in forma pauperis should be afforded the same opportunity as a pro se fee-paid plaintiff to amend his complaint prior to its dismissal for failure to state a claim, unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim.

Id.

The Tenth Circuit has also held that a district court may grant leave to amend when dismissing a complaint under the PLRA. In Perkins v. Kansas Department of Corrections, 165 F.3d 803, 806 (10th Cir.1999), the court noted that the language of section 1915(e)(2) “parallels that of Federal Rule of Civil Procedure 12(b)(6).” It then stated that “[dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Id. (citation omitted).

The Fifth and D.C. Circuits have considered dismissals under the PLRA’s other screening provisions, which contain language similar to that of section 1915(e)(2). And although the courts upheld the dismissals because amendment would have been futile, both circuits assumed that the pre-PLRA policy of liberally granting amendments remained in force. See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998) (“Generally a district court errs in dismissing a pro se complaint for failure to state a claim under Rule 12(b)(6) without giving the plaintiff an opportunity to amend.”); Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C.Cir.1998) (“[Wjhere a trial court has dismissed a claim sua sponte under Rule 12(b)(6) without affording plaintiff an opportunity to replead, a remand is appropriate unless the claimant cannot possibly win relief.”).

Only the Sixth Circuit has expressly held that the PLRA precludes a district court from granting leave to amend when dismissing a complaint for failure to state a claim. See Benson v. O’Brian, 179 F.3d 1014, 1016 (6th Cir.1999); McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir.1997). Yet the court has provided little analysis to support its position. It has simply assumed that the language “shall dismiss” mandates that a dismissal be without leave to amend.⁹

Our conclusion is also supported by several practical considerations. First, although the PLRA was intended to cut down on the volume of prisoner lawsuits, see Craiuford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), section 1915(e) applies to all in forma pau-peris complaints, not just those filed by prisoners. Thus, an interpretation that 1915(e) precludes leave to amend would penalize all in forma pauperis plaintiffs for the alleged abuses of one group of plaintiffs. Congress has expressed no desire to curb in forma pauperis complaints across the board, and we decline to read the statute so expansively.¹⁰

Second, the defendants’ reading of the statute would severely limit the legal remedies for indigent prisoners who seek to raise legitimate, meritorious claims. Under the PLRA, prisoners who have three complaints dismissed under section 1915(e)(2) are barred from filing additional in forma pauperis complaints unless they are “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). As a result, a prisoner who is denied leave to amend could waste some or all of his three strikes attempting to cure technical defects in an otherwise meritorious complaint. Such a prisoner would be penalized not because his complaint is meritless, but because he is “unskilled in the law” and lacks counsel, a result that is directly contrary to the spirit of the federal pleading rules. See Noll, 809 F.2d at 1448.

The defendants make several arguments to support their reading of the statute. First, they argue that a dismissal with leave to amend is not really a dismissal at all and so circumvents the mandatory language of section 1915(e)(2). To support this claim, they cite Jung v. K&D Mining Co., 356 U.S. 335, 78 S.Ct. 764, 2 L.Ed.2d 806 (1958), and WMX Technologies, Inc., v. Miller, 104 F.3d 1133 (9th Cir.1997) (en banc), both of which held that a Rule 12(b)(6) dismissal with leave to amend is not a final judgment for purposes of appeal. However, Jung and WMX only addressed the effect of a dismissal with leave to amend on the appeal process. Neither case suggests that such a dismissal is not a real dismissal. In fact, both courts continued to refer to dismissals with leave to amend as “dismissals.” We cannot say, therefore, that when Congress used the term “dismiss,” it meant only a dismissal without leave to amend.

The defendants also argue that our reading of the statute will defeat Congress’s intent to curb the flood of meritless prisoner lawsuits. Not so. Under Ninth Circuit case law, district courts are only required to grant leave to amend if a complaint can possibly be saved. Courts are not required to grant leave to amend if a complaint lacks merit entirely. Moreover, if a complaint truly lacks merit, granting leave to amend will not allow the complaint to proceed; the amended complaint will be rejected, and the case will be dismissed. But granting leave to amend will enable a plaintiff with a meritorious claim to cure any technical defects. Thus, our ruling not only respects Congress’ intent to curb meritless lawsuits, but ensures that meritorious lawsuits are not swept away in the process.

Indeed, our reading of the statute would appear to be more consistent with Congress’s intent than defendants’ reading. As chief sponsor of the PLRA, Senate Judiciary Committee Chairman Orrin Hatch made the following statement: “I do not want to prevent inmates from raising legitimate claims. This legislation will not prevent those claims from being raised.” 141 Cong. Rec. S146110-01, S14267 (daily ed. Sept. 29, 1995). Yet under the defendants’ reading, legitimate claims with curable defects would be dismissed without leave to amend, a result plainly contrary to Congress’s stated .intent. Moreover, the defendants’ reading could undermine the goal of judicial economy by forcing prisom ers with deficient but curable complaints to file new actions, rather than simply amending their initial complaints. Surely, Congress did not intend this result when it passed the PLRA.¹¹

Finally, the defendants argue that our interpretation strips section 1915(e)(2)(B)(ii) of meaning because it gives the district courts no more authority to dismiss complaints that fail to state a claim than they already had under Rule 12(b)(6). This is not so.' Section 1915(e)(2)(B)(ii), even under our reading, allows a district court to dismiss, sua sponte and prior to service of process, a complaint that fails to state a claim, a power courts did not have prior to enactment of the PLRA. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989). This is a significant expansion of power that will curb the flood of prisoner lawsuits, spare the government the expense of serving parties, and' save defendants the trouble of answering meritless complaints. Thus, we do not have to conclude that leave to amend is forbidden in order to give the provision effect. It has quite enough effect without such a reading.

2. Dismissal of Lopez’s Complaint Without Leave to Amend,

Having concluded that the PLRA does not preclude district courts from granting leave to amend, we must decide whether the district court abused its discretion by dismissing Lopez’s claims without granting him leave to amend.¹² See Yakama Indian Nation v. Washington Dep’t of Revenue, 176 F.3d 1241, 1246 (9th Cir.1999) (denial of leave to amend reviewed for abuse of discretion).

As noted above, Federal Rule of Civil Procedure 15(a) provides that a trial court shall grant leave to amend freely “when justice so requires.” The Supreme Court has stated that “this mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). In addition, we have repeatedly held that “a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Doe, 58 F.3d at 497.

In this case, the magistrate judge granted leave to amend once, but denied leave to amend further because Lopez had not shown good cause for additional amendments. The district court then dismissed two of Lopez’s claims — that he was intentionally placed in a cell with a violent prisoner and was mistreated during a prison transfer — because Lopez had named the wrong defendants. However, neither the magistrate judge nor the district court found that the pleading could not be cured by the allegation of other facts. To the contrary, the magistrate judge acknowledged that Lopez could cure the deficiencies in his complaint by naming the correct defendants. The dismissal without leave to amend was therefore contrary to our longstanding rule that “[ljeave to amend should be granted ‘if it appears at all possible that the plaintiff can correct the defect.’ ” Balistreri, 901 F.2d at 701 (quoting Breier v. Northern California Bowling Proprietors’ Ass’n, 316 F.2d 787, 790 (9th Cir.1963)).

The district court’s action was also inconsistent with our precedent because Lopez was a pro se plaintiff. We have noted frequently that the “rule favoring liberality in amendments to pleadings is particularly important for the pro se litigant. Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel.” Noll, 809 F.2d at 1448.¹³

Because the district court failed to grant Lopez leave to amend, we reverse the dismissal and remand to the district court with instructions that Lopez be given an opportunity to amend his complaint.

B. Summary Judgment

We review de novo a grant of summary judgment and must determine whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999).

1. Inadequate Medical Care

On October 28, 1994, Lopez suffered a broken jaw while in his cell with another inmate. He was taken to the San Joaquin Community Hospital, where he underwent surgery, and was then returned to Corcoran under the care of the prison’s medical staff. Because his mouth was wired shut, hospital doctors ordered that Lopez receive a clear liquid diet of 2500 to 3000 calories daily and that he drink through a straw. They also ordered that he return to the hospital’s clinic for followup care each week for three or four weeks.

Lopez alleges that prison officials failed to follow these instructions. He claims he was not seen again by a medical doctor until December 12, 1994. He also claims that instead of a liquid diet, he was given a “blended diet” consisting of partially pureed food, which could not be sucked through a straw. As a result, Lopez claims, he lost 22 pounds. He also contends that the healing of his jaw was slowed by the lack of proper nutrition.

The government has an obligation under the Eighth Amendment to provide medical care for those whom it punishes by incarceration. See Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.1988) (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). “But not every breach of that duty is of constitutional proportions. In order to violate the Eighth Amendment proscription against cruel and unusual punishment, there must be a ‘deliberate indifference to serious medical needs of prisoners.’ ” Id. (quoting Estelle, 429 U.S. at 104, 97 S.Ct. 285). Prison officials are deliberately indifferent to a prisoner’s serious medical needs when they “deny, delay, or intentionally interfere with medical treatment.... Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth Amendment rights.” Id. (citation omitted).

As an initial matter, it is clear that Lopez’s medical needs were serious. Examples of serious medical needs include “[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.1992). Lopez’s jaw was broken, and his mouth was wired shut for several months. This condition not only affected his daily activities and ability to eat, but was the kind of injury a doctor would find noteworthy. It was likely painful as well.

The next question is whether prison officials were deliberately indifferent to this serious medical need. The district court found that no material issue of fact existed as to this question. It noted that although Lopez was not returned to the hospital for treatment, his medical records indicated that he was seen at the prison clinic each week. The court also noted that Lopez was given pain medication for over a month after his surgery. And as for his claim of inadequate nutrition, the court pointed out that, according to medical records, Lopez lost only nine pounds during the seven weeks after his surgery. The court acknowledged that there was some dispute about the type of diet Lopez required, but given that Lopez lost only nine pounds, the court determined he had received an appropriate diet.

We disagree with the district court’s conclusion. A prisoner need not prove that he was completely denied medical care. See Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir.1989). Rather, he can establish deliberate indifference by showing that officials intentionally interfered with his medical treatment. See Estelle, 429 U.S. at 105, 97 S.Ct. 285. Lopez’s medical records show that when he returned to Corcoran, a doctor at the prison confirmed the hospital’s instructions that he receive a liquid diet through a straw. Yet in his affidavit, Lopez states that he received a blended diet, consisting of pureed food that he was unable to drink through a straw. Lopez also stated that he complained to prison officials, but that they declined to change his diet. These allegations, viewed in the light most favorable to Lopez, are sufficient to support a finding that prison officials intentionally interfered with his previously prescribed medical treatment.

We approved of an Eighth Amendment claim on similar grounds in Tolbert v. Eyman, 434 F.2d 625 (9th Cir.1970). In Tolbert, a prisoner alleged that medication prescribed by prison physicians was intercepted by prison authorities. The government argued that this was a negligence claim not covered by the Eighth Amendment. But we explained that the “gravamen of his claim is not that he was erroneously diagnosed by the prison doctor, but that the warden refused to allow him authorized medicine that he needed to prevent serious harm to his health.” Id. at 626. Although Tolbert was decided before the Supreme Court established the deliberate indifference standard, the Estelle court cited Tolbert as an example of a case where a claim of interference with medical treatment could amount to deliberate indifference. See Estelle, 429 U.S. at 105 n. 12, 97 S.Ct. 285.

Finally, we conclude that Lopez presented sufficient evidence to support a finding that he was harmed by the prison officials’ acts. See McGuckin, 974 F.2d at 1060. Although medical records show that Lopez lost nine pounds, he stated in an affidavit that he lost 22 pounds. In addition, Lopez stated in his verified complaint that a doctor told him his healing had been slowed by the lack of proper nutrition.¹⁴ This evidence, viewed in the light most favorable to Lopez, is enough to create a factual dispute as to whether he was harmed.

Accordingly, the grant of summary judgment is reversed.

2. Denial of Outdoor Exercise

Lopez claims that during the six-and-one-half weeks following his injury, he was denied all access to outdoor exercise and that this violated his right to be free from cruel and unusual punishment under the Eighth Amendment.

“An Eighth Amendment claim that a prison official has deprived inmates of humane conditions must meet two requirements, one objective and one subjee-tive.” Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir.1995). “Under the objective requirement, the prison official’s acts or omissions must deprive an inmate of the minimal civilized measure of life’s necessities. The subjective requirement, relating to the defendant’s state of mind, requires deliberate indifference.” Id. (citations omitted).

The district court concluded that Lopez had failed to meet both requirements. He failed to meet the objective requirement, the court ruled, because the deprivation of outdoor exercise “was not sufficiently serious to say that plaintiff was deprived of the minimal civilized measure of life’s necessities.” And he failed to meet the subjective requirement, according to the district court, because there was evidence indicating that prison officials denied Lopez outdoor exercise for his own protection.

We disagree with both conclusions. In Allen, 48 F.3d at 1087-88, a prisoner alleged that during a six-week period he had been allowed only 45 minutes of outdoor exercise per week. The trial court denied defendant’s motion for summary judgment, and we affirmed, holding that the prisoner “has met the objective requirement of the Eighth Amendment analysis by alleging the deprivation of what this court has defined as a basic human need.” Id. at 1088. Lopez alleges a greater deprivation than was involved in Allen, and the defendants have presented no evidence to dispute his claim. Therefore, Lopez has met the Eighth Amendment’s objective requirement.¹⁵

We also conclude that Lopez has met the subjective requirement. To support its finding that no issue of material fact existed as to whether defendants were deliberately indifferent, the district court noted that “there is a chrono placing plaintiff on single-cell status, due to his medical condition (fractured jaw, wired shut), which appears to indicate that plaintiff was better protected in being held in the SHU and denied yard until his transfer than to be on the yard and in the general population.” Read generously, this prison record may support defendants’ assertion that they denied Lopez access to the exercise yard for his own protection. But it is hardly sufficient by itself to support a grant of summary judgment. Furthermore, even if this was proof that Lopez was denied yard access for his own protection, it does not explain why Lopez was not given some other opportunity for outdoor exercise. Lopez stated in his affidavit that he complained about the lack of exercise to his correctional counselor, but that nothing changed. Viewing the evidence in the light most favorable to the plaintiff, as we must, there is a genuine issue of fact as to whether defendants were deliberately indifferent to Lopez’s need for outdoor exercise. Accordingly, the grant of summary judgment is reversed.¹⁶

REVERSED and REMANDED.

1 . Lopez made several other claims that are not at issue here.

2 . We need not determine whether the pleading was in fact an amended complaint or was instead a request for leave to file an amended complaint. We will accept the magistrate judge’s characterization for purposes of this appeal.

3 . Lopez failed to name the members of the classification committee who assigned him to the cell and the bus driver who mistreated him. In his Dec. 9, 1996 cross motion for summary judgment, Lopez stated that he had not named these individuals because the defendants had withheld their names during discovery. The district court rejected this explanation, stating that it was Lopez's "responsibility (not the court or defendants) to name defendants and link them to the wrongs which he alleges they committed.”

4 . Both parties in this appeal assume that the district court granted summary judgment as to Lopez's claim regarding the prison transfer. However, il appears that the court dismissed this claim for the same reason it dismissed Lopez’s claim regarding placement in the cell — because he did not name as defendants the individuals responsible for his alleged injury. Accordingly, we review these two claims together.

5 .As a preliminary matter, Lopez contends that the panel incorrectly applied the PLRA to his case because the provision in question should not be applied retroactively. Although this court has previously ruled to the contrary in Marks v. Solcum, 98 F.3d 494, 496 (9th Cir.1996) (per curiam), Lopez suggests in his brief that the reasoning in the Supreme Court’s recent decision in Martin v. Hadix, 527 U.S. 343, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999), is inconsistent with our earlier decision, and that we should therefore overrule Marks. However, because this issue was neither properly briefed by the parties nor argued at the en banc hearing, and because its resolution is not necessary to our determination of the appeal, we decline to address it here.

6 . It makes no difference that Lopez’s complaint was dismissed pursuant to a noticed motion under Federal Rule of Criminal Procedure 12(b)(6). The PLRA provides that a district court "shall dismiss” an in forma pau-peris complaint that fails to state a claim. So even if a 12(b)(6) motion is made, that does not relieve the district court of its duty to follow the PLRA.

7 . The other provisions are codified at 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c). While section 1915(e) applies to all in forma pauperis complaints, section 1915A applies only to actions in which a prisoner seeks redress from a governmental entity or employee. Section 1997e(c) applies to prisoner complaints specifically challenging prison conditions. All three of the provisions direct district courts to dismiss a complaint that fails to state á claim upon which relief may be granted.

8 . The Supreme Court did address the meaning of former section 1915(d) in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), but that decision does not control the issue here. In Neitzke, the Court held that section 1915(d), which gave courts permission to dismiss sua sponte a frivolous complaint, did not also give courts authority to dismiss sua sponte a complaint for failure to state a claim. In reaching this result, the Court noted that under Rule 12(b)(6), a plaintiff ordinarily receives notice of a motion to dismiss and an opportunity to amend, while sua sponte dismissals under 1915(d) "involve no such procedural protections.” The dissent reads this dicta to mean that leave to amend was forbidden under 1915(d) and that therefore leave to amend is forbidden under section 1915(e)(2). However, Neitzke did not state that courts were barred from granting leave to amend under 1915(d), only that courts were not required to grant leave to amend. Even the dissent seems to acknowledge this distinction when it notes that "in Neitzke, the Supreme Court stated unequivocally that district courts were not required to provide leave to amend to prisoners’s 'vexatious lawsuits’ when proceeding IFF under the then existing § 1915(d).” Dissent at 1671 (emphasis added). Moreover, even if courts were barred from granting leave to amend when dismissing a complaint as frivolous under 1915(d), the same is not necessarily true for a dismissal for failure to state a claim under 1915(e)(2). When a case may be classified as frivolous or malicious, there is, by definition, no merit to the underlying action and so no reason to grant leave to amend. There is, however, reason to allow amendment when a case fails to state a claim due to some technical defect, such as naming the wrong defendant. Thus, even if Congress intended to bar leave to amend under 1915(d)— which has not been established — we cannot say that Congress also intended to bar leave to amend under 1915(e)(2).

9 . The defendants contend that the Eighth Circuit’s decision in Christiansen v. Clarke, 147 F.3d 655, 658 (8th Cir.1998) supports the Sixth Circuit’s reading. However, the Chris-tiansen court held only that the PLRA “allow[s\ district courts to dismiss all meritless claims before service of process and without giving leave to amend.” Id. (emphasis added). It did not state that the PLRA requires a district court to dismiss without leave to amend. The Eleventh Circuit considered a dismissal under the PLRA in Mitchell v. Farcass, 112 F.3d 1483 (11th Cir.1997), but reversed the district court without discussing whether the PLRA allows leave to amend. The dissent relies on Judge Lay's concurring opinion in Mitchell to support its view that section 1915(e)(2) precludes a district court from granting leave to amend. See Dissent at 1673. But Judge Lay said only that the PLRA denies in forma pauperis prisoners the rights accorded under Rule 12(b)(6) — namely, the right to be notified of a pending motion to dismiss and an opportunity to amend the complaint before the motion is ruled upon. See 112 F.3d at 1492 (Lay, J., concurring). Judge Lay did not say that district courts are barred from granting leave to amend at their own discretion. And it is far different to say that a plaintiff does not have a right to amend than to say that a court does not retain the authority to grant leave to amend at its discretion.

10 . It is true that 1915(e)(2)’s provision for dismissal for failure to state a claim itself penalizes indigent non-prisoner plaintiffs for the alleged abuses of prisoner plaintiffs. However, Congress inserted 1915(e)(2) into the in forma pauperis statute, and we must follow this clear statutory direction. Congress has not, however, clearly stated that dismissal must be without leave to amend. And because such a reading would have harsh consequences on a group of plaintiffs — indigent non-prisoners — not even intended to be affected by the statute, we are especially reluctant to read the statute that way.

11 . The dissent argues that legislative history strongly suggests that the PLRA precludes leave to amend. To support this claim, the dissent points to Senator Dole's statement “that the dismissal provisions would allow federal courts to 'immediately dismiss a complaint if ... the complaint does not state a claim upon which relief may be granted.’ " Dissent at 1677 (emphasis added). Of course, Senator Dole’s use of the word "allow” rather than "require” supports our reading of the PLRA, not the dissent’s.

12 . Lopez does not challenge the district court’s ruling that two of his claims failed to state a claim for relief; he contends only that he should have been granted leave to amend.

13 . We need not decide whether a district court is also required to inform a pro se plaintiff of the complaint's deficiencies because in this case the magistrate judge informed Lopez of the defects. Having done so, however, the magistrate judge then denied Lopez leave to amend.

14 . A plaintiff’s'verified complaint may be considered as an affidavit in opposition to summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence. See McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir.1987).

15 . The panel in Lopez v. Smith, 160 F.3d 567 (1998), affirmed the summary judgment grant by citing May v. Baldwin, 109 F.3d 557, 565 (1997), which held that "a temporary denial of outdoor exercise with no medical effects is not a substantial deprivation.” However, the May plaintiff alleged only a 22-day denial of outdoor exercise, and the court contrasted this "temporary” denial with Allen's "long-term” deprivation. The clear implication of May is that temporary denials of outdoor exercise must have adverse medical effects to meet the Eighth Amendment test, while long-term deprivations are substantial regardless of effects. Because Lopez alleged a deprivation longer than the one in Allen, it qualifies as long term. Thus, he was not required to show adverse medical effects.

16 . In their brief to the panel in Lopez v. Smith, 160 F.3d 567 (1998), defendants also argued that Lopez named the wrong defendants. However, defendants did not make this argument to the en banc panel, and therefore the issue is not properly before us. If the district court determines that Lopez did name the wrong defendants, it should give him an opportunity to amend the complaint.