Unpublished Disposition, 857 F.2d 1478 (9th Cir. 1984)
Annotate this CaseLe Roi JOHNSON, Plaintiff-Appellant,v.CONTRA COSTA COUNTY, Coleman Fanin, Contra Costa Sheriff'sDepartment, Earline Crockett, Lee Aldridge, NicholasTastino, Betty Richards, Carolyn Keim, Rose Wolf, JamesVogler, Richard Hale, William Mize, Joseph Pacheco, JulieGraham, William Ellgas, Herbert Kerlinger, Defendants-Appellees.
No. 87-2173.
United States Court of Appeals, Ninth Circuit.
Submitted June 27, 1988.* Decided Aug. 24, 1988.
Before BROWNING, HUG and BEEZER, Circuit Judges.
MEMORANDUM**
Le Roi Johnson, a California state prisoner, appeals pro se and in forma pauperis, from the district court's dismissal of his 42 U.S.C. § 1983 civil rights action. Under 28 U.S.C. § 1915(d), we review summary dismissals de novo. Rizzo v. Dawson, 778 F.2d 527, 529-30 (9th Cir. 1985).
Liberally construing Johnson's brief, we ascertain only two issues raised on this appeal. First, whether the district court improperly dismissed Johnson's first section 1983 claim. Johnson claims that his criminal prosecution was unfair due to improper jury selection which resulted in underrepresentation of blacks on the jury. The district court construed this claim as a 28 U.S.C. § 2254 habeas corpus petition and held that Johnson failed to exhaust available state judicial remedies. Second, whether the district court improperly concluded that Johnson's second section 1983 claim was barred by the one-year statute of limitations. Johnson claimed mistreatment while he was incarcerated in the Contra Costa County Rehabilitation Center.
In its order, the district court reasoned that " [p]laintiff has not provided this Court with any evidence that he has presented his claim to the highest available state court." In what was construed as a motion to amend judgment, Johnson insisted that he had appealed to the California Supreme Court and had sent the court a copy of the California Supreme Court order denying hearing after judgment by the Court of Appeal. The district court denied the motion, reasoning that plaintiff had only appealed his conviction to the California Court of Appeal.
Our careful review of the record demonstrates that the district court overlooked Johnson's appeal to the California Supreme Court. On November 1, 1984, the California Supreme Court denied Johnson's petition for hearing after the judgment of the California Court of Appeal.1 Hence, Johnson has appealed his conviction and has presented his claim of improper jury selection in violation of the fourteenth amendment to the California Supreme Court.2
As to the second issue, the district court held that Johnson's mistreatment claim which arose during his 1976 incarceration was "barred on its face" by the one-year statute of limitation period in Cal.Civ.Proc. Code Sec. 340. The court applied Wilson v. Garcia, 471 U.S. 261 (1985), which held that the statute of limitations for section 1983 claims is the state's statute of limitations for personal injury cases. Id. at 276. However, in Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir. 1987), we held that for actions arising prior to Wilson in California, "the applicable statute of limitations is either three years from the time the cause of action arises or one year from Wilson," whichever period expires first. Id. at 561.
Moreover, California law provides for tolling of the statute of limitations if a plaintiff is " [i]mprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life." Cal.Civ.Proc.Code Sec. 352(3). The record before us is unclear as to the amount of time Johnson has been imprisoned under sentence of a criminal court between 1976 and 1982--when he was sentenced to six years. Without further evidence, neither we nor the district court are able to determine the tolling effect of any such imprisonment on the applicable statute of limitation.
We further note that the district court reasoned that even if Johnson's claim were not barred, he had failed to name any defendants. As a pro se plaintiff, Johnson should be given an opportunity to amend his complaint to name defendants. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987) (reasoning that district court erred by not allowing pro se and in forma pauperis plaintiff leave to amend when it was not absolutely clear that the complaint's deficiencies could not be cured by amendment); see also Rizzo, 778 F.2d at 532 n. 4.
The foregoing portions of the district court's order are accordingly reversed and the case is remanded for further consideration consistent with this disposition.3
REVERSED and REMANDED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
The certified order before us was attached to Johnson's California Supreme Court brief. In his motion to amend judgment, Johnson clearly stated that he had furnished the district court with a copy of the California Supreme Court decision. He further requested an extension of time to obtain another copy of the California Supreme Court decision since it was "perfectly clear that this court hasn't received all of my mail." The request was denied
Johnson need not now ask the state for collateral relief based on the same issue. The exhaustion requirement of 28 U.S.C. § 2254 is satisfied if the federal issue has been once presented to the highest state court. See Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987); Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983); Hudson v. Rushen, 686 F.2d 826, 830 (9th Cir. 1982), cert. denied, 461 U.S. 916 (1983); see also Francisco v. Gathright, 419 U.S. 59, 62-63 (1974); Roberts v. LaVallee, 389 U.S. 40, 42-43 (1967); 17A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction, Sec. 4264, at 337; Sec. 4264.1, at 339-47 (1988)
When the Supreme Court of California denied Johnson's petition for hearing, three justices were of the opinion that the petition should be granted. The California Court of Appeal decided the jury selection issue in a 2-1 unpublished opinion, and subsequently denied rehearing 2-1. Before both fora, Johnson maintained that he was denied his constitutional right to a jury drawn from a cross-section of the community. Although not raised by Johnson on his appeal, we suggest that the district court reconsider its decision whether to appoint counsel in order to better serve the interests of justice
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