Martinez v. Gomez, 96-56208
| Citation | 137 F.3d 1124 |
| Decision Date | 05 February 1998 |
| Docket Number | No. 96-56208,96-56208 |
| Parties | 98 Cal. Daily Op. Serv. 1494, 98 Daily Journal D.A.R. 2069 Andres M. MARTINEZ, Plaintiff-Appellant, v. James GOMEZ; K.W. Prunty; J. Cuevas; J.W. Davis; G.L. Mudra; G.D. Stanford; W. Owen; M. Atkinson; D. Rockholt; J. Stovall, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Andres M. Martinez, Corcoran, California, pro se appellant.
David H. Robinson, Deputy Attorney General, San Diego, California, for defendants-appellees.
Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, Chief District Judge, Presiding. D.C. No. CV-96-00271-MLH.
Before: WALLACE, TROTT, and HAWKINS, Circuit Judges.
In this case, we consider whether a prison sentence of life with the possibility of parole falls within California Civil Procedure Code § 352(a)(3), which tolls the statute of limitations for persons "in execution under the sentence of a criminal court for a term less than for life." The district court had jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 1983. We have jurisdiction over this timely filed appeal pursuant to 28 U.S.C. § 1291, and we reverse and remand.
Martinez is serving a life sentence with the possibility of parole. On February 14, 1996, he filed an action under 42 U.S.C. § 1983, alleging that prison officials used excessive force in extracting him from his cell in 1994. The district court dismissed his complaint on the ground that it was barred by the one-year statute of limitations applicable in California. See McDougal v. County of Imperial, 942 F.2d 668, 672-73 (9th Cir.1991).
We have a threshold jurisdictional issue. The State points out that the district court's dismissal of Martinez's complaint was without prejudice and asserts that it is a non-final order. A dismissal of a complaint without prejudice is not a final order. It must be so treated if the complaint can be saved through amendment and the plaintiff has not affirmatively elected to stand on the dismissed complaint. See WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997) (en banc). In this case, leave to amend was not specifically allowed and Martinez cannot amend his complaint to defeat the statute of limitations bar. "It would always be helpful if district courts made their intentions in [regard to finality] both plain and explicit." Id. However, here it is clear that there is nothing further Martinez can do and the district court must have intended this order to end the case. Therefore, we treat the dismissal as a final order.
To claim the benefit of the section 352(a)(3) tolling provision, Martinez relies on Bianchi v. Bellingham Police Department, 909 F.2d 1316, 1319 (9th Cir.1990), in which we held that a sentence of life with the possibility of parole counted as a term of less than for life under Washington's tolling statute. Bianchi, however, was decided under Washington law, and we deal here with a California statute. Bianchi was not meant to be a circuit-wide rule. State law governs both the statute of limitations and the tolling of the statute. Wilson v. Garcia, 471 U.S. 261, 266, 105 S.Ct. 1938, 1941-42, 85 L.Ed.2d 254 (1985) (Wilson ) (statute of limitations); Board of Regents v. Tomanio, 446 U.S. 478, 488, 100 S.Ct. 1790, 1797, 64 L.Ed.2d 440 (1980) (tolling). While Bianchi may provide helpful analysis, we must look to California law to decide the issue before us.
When we do so, we discover important differences which may (or may not) lead California courts to a different result. For example, the California parole statute, Cal.Penal Code § 3046, unlike Washington's, see Wash. Rev.Code § 9.95.115, makes no distinction between sentences of life with the possibility of parole and those without the possibility of parole.
We are not unmindful of the logic of the district court: "Because Martinez was not sentenced to a term for less than life, regardless of the potentialities of parole or pardon, section 352 does not apply." Nevertheless, it is the California law which must be applied, an analysis not developed by the district court.
Our review of the California law has not led to a precise answer. Martinez relies upon Grasso v. McDonough Power Equipment, Inc., 264 Cal.App.2d 597, 599-601, 70 Cal.Rptr. 458, 459-60 (1968), in which the ...
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Applegate v. Said
...if he were serving a term of life with the possibility of parole, as that is considered a term of less than life. Martinez v. Gomez, 137 F.3d 1124, 1126 (9th Cir. 1998). Further, California courts have extended the tolling benefit of section 352.1 to prisoners servinglife sentences. See Gra......
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...if he were serving a term of life with the possibility of parole, as that is considered a term of less than life. Martinez v. Gomez, 137 F.3d 1124, 1126 (9th Cir. 1998). Further, in California "[l]imitations are tolled during period of imprisonment of persons sentenced to life imprisonment.......
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...*2 (C.D. Cal. 2009)(inmate sentenced to life term with possibility of parole entitled to statutory tolling, citing Martinez v. Gomez, 137 F.3d 1124, 1126 (9th Cir. 1998). Defendant Park provides June 25, 2009, as the date on which this action was originally filed. SMTD, p. 4. This court doe......
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...AND STANDARD OF REVIEW Ordinarily, “[a] dismissal of a complaint without prejudice is not a final order.” Martinez v. Gomez, 137 F.3d 1124, 1125 (9th Cir.1998). However, the district court's orders in these cases are final and appealable because “leave to amend was not specifically allowed ......