Lopez

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

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,…

concurring:

I part company because Lopez’s due process claim was not dismissed sua *1134 sponte for failure to state a claim pursuant to 28 U.S.C. § 1915 (e)(2) — the Prison Litigation Reform Act section that both the majority and the dissent discuss — but was instead dismissed pursuant to a noticed motion under Federal Rule of Civil Procedure 12(b)(6). For this reason, Lopez lacks standing, and we lack jurisdiction to resolve the potentially thorny question under the PLRA of when § 1915(e)(2) is triggered and whether a dismissal under § 1915(e)(2) may be without leave to amend. Instead, this appeal presents the straightforward issue of whether Lopez should have been given leave to amend following dismissal of his due process claim “without prejudice” under Rule 12(b)(6). As the answer is probably “yes” under well settled law, 1 see, e.g., Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir.1983); Noll v. Carlson, 809 F.2d 1446 (9th Cir.1987), I would simply remand, leaving the matter of sua sponte dismissals under § 1915(e)(2) for another day.

I

Lopez filed his § 1983 complaint October 30, 1995 against six named prison officials. On December 14, 1995 the magistrate judge ordered…

joins, Dissenting:

The majority holds that the dismissal of a complaint for failure to state a claim under § 1915(e)(2) of the Prison Litigation Reform Act of 1995 (PLRA) may be with leave to amend. I disagree.

The majority of this panel appears to believe that the sole effect of § 1915(e)(2) is to allow a district court to dismiss, sua sponte and prior to service of process, an in forma pauperis (IFP) complaint that fails to state a claim. However, (1) the history of the notice and opportunity to amend rule; and (2) the legislative history of the PLRA strongly suggest that Congress intended to require that the district court dismiss an IFP prisoner-litigant’s complaint that fails to state a claim, immediately and without an opportunity to amend. This substantial change would curtail prisoner lawsuits and relieve the burden of these lawsuits on the courts. The majority’s interpretation, on the other hand, creates a significant expansion of work for the courts which is contrary to the stated intent of Congress.

My dissent will first address the history of the notice and opportunity to amend rule prior to the enactment § 1915(e)(2); thereafter the legislative history of §…