Martinez

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 m 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…