                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 12, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 LANCE CONWAY WOOD,

              Plaintiff-Appellant,

 v.

 UTAH BOARD OF PARDONS &
 PAROLE, UBPP; KEITH
 HAMILTON, in his individual and
 official capacity as Chairman of                       No. 09-4225
 UBPP; JESSE GALLEGOS, In his                    (D.C. No. 2:09-CV-643-TC)
 individual and official capacity as a                    (D. Utah)
 Member of UBPP; CURTIS GARNER,
 In his individual and official capacity
 as a Member of UBPP; CHERYL
 HANSON, In her individual and
 official capacity as a Member of
 UBPP; CLARK A. HARMS, In his
 individual and official capacity as a
 Member of UBPP,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

      *
          This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1. After examining the briefs and the
appellate record, this three-judge panel has determined unanimously that oral
argument would not be of material assistance in the determination of this appeal.
See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
      Lance Conway Wood, a state prisoner proceeding pro se, brought suit under

42 U.S.C. § 1983, alleging that the defendants had acted under color of state law

to violate his constitutional rights. The district court dismissed his complaint for

failure to state a claim upon which relief could be granted. Mr. Wood appealed.

We affirm the judgment of the district court.

                                I. BACKGROUND

      Mr. Wood sued the Utah Board of Pardons and Parole 1 under 42 U.S.C.

§ 1983, alleging that it had acted under color of state law to violate his

constitutional rights. He raised three claims. First, Mr. Wood contended that the

Board’s refusal to grant him a parole rehearing every five years constituted an ex

post facto violation. Second, Mr. Wood argued that the Board had infringed his

due process rights by knowingly using false information in connection with his

parole hearing. Third, Mr. Wood alleged that the Board’s use of this false

information constituted cruel and unusual punishment in violation of the Eighth

Amendment. He sought injunctive relief and money damages.

      The district court found that Mr. Wood failed to state a claim upon which

relief could be granted and dismissed his suit under 28 U.S.C. § 1915(e)(2)(B)(ii).




      1
             Mr. Wood also sued several Board members in their individual and
official capacities. We refer to the Appellees collectively as the “Board.”

                                         -2-
Mr. Wood appealed. He also filed a motion to proceed on appeal in forma

pauperis.

                                   II. DISCUSSION

      The district court determined that the facts stated in Mr. Wood’s complaint

were insufficient to support any of his claims for relief. This is a legal

conclusion, and we review it de novo. See Kay v. Bemis, 500 F.3d 1214, 1217

(10th Cir. 2007); Lustgarden v. Gunter, 966 F.2d 552, 553 (10th Cir. 1992).

“‘Dismissal of a pro se complaint for failure to state a claim is proper only where

it is obvious that the plaintiff cannot prevail on the facts he has alleged and it

would be futile to give him an opportunity to amend.’” Kay, 500 F.3d at 1217

(quoting Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001)). We must accept

Mr. Wood’s allegations as true and draw any reasonable inferences from those

allegations in his favor. Id. This is coupled with our duty to construe pro se

filings liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

      We first consider Mr. Wood’s ex post facto claim. According to Mr.

Wood, when he was convicted and sentenced in 1990, Utah regulations entitled

him to receive a parole hearing once every five years. These regulations, he

alleges, were then amended in 1992 to provide for a rehearing only once every ten

years. Mr. Wood argues that the Ex Post Facto Clause, see U.S. Const. art. I,

§ 10, cl. 1 (“No State shall . . . pass any . . . ex post facto Law . . . .”), requires




                                            -3-
the Board to provide him with a hearing every five years in accordance with the

guidelines in place when he was sentenced.

      The district court did not reach the merits of this claim, instead dismissing

it based on the affirmative defense of the statute of limitations. This sua sponte

treatment is permissible “only when the defense is obvious from the face of the

complaint and no further factual record is required to be developed.” Fratus v.

DeLand, 49 F.3d 673, 674–75 (10th Cir. 1995) (brackets and internal quotation

marks omitted). Here, the district court reasoned from the face of Mr. Wood’s

complaint that his cause of action accrued in 1992, the year he alleged the

regulation was changed. Applying the four-year residual Utah statute of

limitations governing § 1983 actions, the district court concluded that Mr. Wood

had until 1996 to file his claim. Because this suit was not filed until 2009, the

district court concluded that it was time-barred.

      We affirm the district court’s holding that this claim is time-barred, but

under a different rationale. We agree that the time bar is obvious from the face of

Mr. Wood’s complaint. However, we question the correctness of the district

court’s conclusion that Mr. Wood’s cause of action on his ex post facto claim

accrued in 1992—the year that the regulation allegedly changed. Guided by our

case law (including non-binding decisions), we adopt a more generous view of the

accrual date. Even under that more-generous view, however, Mr. Wood’s cause

of action is time-barred; therefore, we affirm the district court.

                                          -4-
      “A civil rights action accrues when facts that would support a cause of

action are or should be apparent.” Id. at 675 (emphasis added) (internal quotation

marks omitted). In his complaint, Mr. Wood stated that his last parole

reconsideration hearing occurred on June 30, 1995. Accepting this statement as

true and drawing all reasonable inferences from it in Mr. Wood’s favor, we

assume that Mr. Wood was not informed at this time that the new ten-year

regulation would be applied to him. Under such an assumption, Mr. Wood should

have expected to receive his next reconsideration hearing five years later, around

June 30, 2000. Thus, when June 30, 2000, came and went without a new hearing,

Mr. Wood should have known—even if not before—that the Board was applying

the new policy to him. Therefore, we conclude that, at the latest, Mr. Wood’s

cause of action regarding his ex post facto claim accrued, and the statute of

limitations began to run, on June 30, 2000. See Traylor v. Jenks, 223 F. App’x

789, 790 (10th Cir. 2007) (finding that prisoner “was aware of the factual

predicate for his claim . . . when he was not granted an annual review”); accord

Jones v. Henry, 260 F. App’x 130, 131 (10th Cir. 2008) (same). Applying Utah’s

four-year statute of limitations, see Fratus, 49 F.3d at 675, Mr. Wood had at most

until June 30, 2004, to file a lawsuit asserting his ex post facto claim. However,




                                         -5-
Mr. Wood did not file his lawsuit until July 2009. Consequently, we must agree

with the district court that this claim is time-barred. 2

      We deal next with Mr. Wood’s due process argument. It is well established

that, where a state provides a discretionary parole regime, prisoners do not have a

liberty or property interest in parole. And with no interest to be infringed, there

is nothing for the Due Process Clause to protect. See Greenholtz v. Inmates of the

Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional

or inherent right of a convicted person to be conditionally released before the

expiration of a valid sentence.”); Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir.

      2
             On appeal, Mr. Wood states that he “doesn’t have access to any Utah
case law, or statutes, and he did not become aware of the change in the law until
October 16, 2006 when he applied for his (5) year parole hearing date, and was
informed of the (10) year change.” Aplt. Br. at 3B. He seems by this to argue
that his cause of action did not accrue until this date. But Mr. Wood gave no hint
of this argument below. We generally do not consider arguments not raised
before the district court, and we see no reason to deviate from that rule here. In
re Antrobus, 563 F.3d 1092, 1101 (10th Cir. 2009). Anyway, even if the Board
did not inform Mr. Wood until 2006 that the ten-year rule would apply to him,
this does not alter the conclusion above that he should have been aware of the
change by June 30, 2000.

       Mr. Wood also contends that “if a constitutional violation is ongoing, as in
this case, a § 1983 civil rights complaint can be filed beyond the limitations.”
Aplt. Br. at 3B. This argument also was not raised below. In any case, we have
never endorsed such a “continuing violation” theory of ex post facto liability in
this context; to the contrary, we have rejected analogous arguments in the past.
See Jones, 260 F. App’x at 131 (“We reject Plaintiff’s argument that each denial
of parole consideration is a separate cause of action for statute of limitations
purposes.”); see also Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003) (per
curiam) (holding that parole board’s decision not to reconsider a prisoner for
parole “was a one time act with continued consequences, and the limitations
period is not extended”).

                                            -6-
1994) (“[D]ecisions of a parole board do not automatically invoke due process

protections.”). We have previously stated that Utah’s parole system is

discretionary in nature, 3 and Mr. Wood does not now contend otherwise. Thus, he

cannot establish that he has any due process rights in this context, and we must

affirm the district court’s dismissal of this claim. 4

      Finally, we consider Mr. Wood’s allegation that the use of false evidence in

connection with his parole hearing constitutes cruel and unusual punishment. As



      3
              “The Utah [parole] statute grants the parole board complete
discretion in making parole decisions,” and therefore “does not create a liberty
interest entitling [a prisoner] to due process protection.” Malek, 26 F.3d at 1016.
The relevant provisions of Utah law have been amended since we described them
in Malek, but they still provide discretion to the Board in making parole
decisions. See Utah Code Ann. § 77-27-5 (2008); id. § 77-27-9 (Supp. 2009).
      4
              Mr. Wood holds up Monroe v. Thigpen, 932 F.2d 1437, 1442 (11th
Cir. 1991), for the proposition that it is a violation of due process for a parole
board to “rely upon false information in determining whether to grant parole.” Of
course, we are bound by our own precedent and that of the Supreme Court, and,
as discussed above, those authorities indicate that Mr. Wood has no due process
rights in this situation. But Monroe does not seem to be helpful to Mr. Wood in
any case. As one court of appeals has noted,

             [s]ubsequent Eleventh Circuit precedent, while not expressly
             overruling Monroe, has noted that no Due Process rights exist
             for parole procedures where there is no legitimate expectation
             of parole. Furthermore, Monroe itself limits the “right” which
             it uncovered to situations where the state admits the use of
             false information; a prisoner’s allegations that false
             information was used to deny him parole is insufficient, in the
             absence of such an admission, to state a claim under section
             1983.

Johnson v. Rodriguez, 110 F.3d 299, 308 n.13 (5th Cir. 1997) (citation omitted).

                                           -7-
indicated above, “the Utah parole statute does not create a liberty interest

entitling [a prisoner] to due process protection.” Malek, 26 F.3d at 1016. For this

reason, we must affirm the district court’s dismissal of Mr. Wood’s Eighth

Amendment claim. “Because Utah prisoners have no legitimate entitlement to

parole prior to the completion of their sentence, neither the denial of parole nor

the lack of enforceable parole guidelines can constitute cruel and unusual

punishment . . . .” Id.; see also Lustgarden, 966 F.2d at 555 (“Denial of parole

under a statute dictating discretion in parole determination does not constitute

cruel and unusual punishment.”).

                                III. CONCLUSION

        We AFFIRM the district court’s judgment dismissing Mr. Wood’s § 1983

complaint. Because the district court dismissed Mr. Wood’s complaint under

§ 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted,

we assess Mr. Wood one strike for purposes of § 1915(g). See Jennings v.

Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999). We

GRANT Mr. Wood’s motion to proceed on appeal IFP. Mr. Wood is obligated to

continue making partial payments on his appellate filing fee until the entire fee is

paid.

                                 Entered for the Court


                                 JEROME A. HOLMES
                                 Circuit Judge

                                         -8-
