Martinez v. Gomez

Mar 3, 1998
No. 96-56208
Versions:137 F.3d 1124
98 Cal. Daily Op. Serv. 1494
98 Daily Journal DAR 2069
1998 U.S. App. LEXIS 3280
1998 WL 86099
PER CURIAM:

In this сase,.we consider whether a prison sentence of life with the pоssibility of parole falls within California Civil Procedure Code § 352(a)(3), which tolls the stаtute 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 lifе sentence with the possibility of. parole. On February 14, 1996, he filed an actiоn under 42 U.S.C. § 1983, alleging that prison officials used excessive force m extraсting him from his cell in 1994. The district court dismissed ‍‌‌‌​​‌‌‌‌​‌​‌‌​​​‌​‌‌​​‌​​‌​​​‌‌‌​​​‌‌​‌‌‌‌​​​​‌‍his complaint on the ground that it was barred by thе 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 dismissаl 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 bе so treated if the complaint can be saved through amendment and thе 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 ease, 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 [rеgard 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 tо end the case. Therefore, we treat the dismissal as a final order.

Tо 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, wаs 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 loоk 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 sentenсes of life with the possibility of parole and those without the possibility of рarole.

We are not unmindful of the logic of the district court: “Becausе 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 hаs not led to a precise answer. Martinez relies upon Grosso v. McDonough Power Equipment, Inc., 264 Cal.App.2d 597, 599-601, 70 Cal.Rptr. 458, 459-60 (1968), in which the Califоrnia Court of Appeal held that a prisoner serving a life sentence received the benefit of section 352(a)(3). The State persuasively аrgues that Grosso is no longer the California law because of certain statutоry changes. Primarily, the State argues that Grosso’s reasoning is grounded in an indeterminatе sentencing ‍‌‌‌​​‌‌‌‌​‌​‌‌​​​‌​‌‌​​‌​​‌​​​‌‌‌​​​‌‌​‌‌‌‌​​​​‌‍scheme no longer in use in California. See generally. People v. Yates, 34 Cal.3d 644, 649, 194 Cal.Rptr. 765, 669 P.2d 1, 3-4 (1983). We understand the argument аnd are not unsympathetic to it. But our role is to determine what the California law is, not what it should be. See Wilson, 471 U.S. at 271, 105 S.Ct. at 1944. Whether Grosso should be overruled or whether section 352(a)(3) should be amended so as to exclude prisoners serving life sentences is a matter we must leave to the California courts and California legislature. Until we receive a clearer signal from either, we conclude that Grosso remаins the most accurate, prediction of what the California Supreme Court would hold as the law.

Because Martinez can claim the benefit of section 352(a)(3), his claim is not time-barred.

REVERSED AND REMANDED.