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This Order and Judgment is not binding precedent, except under the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.”
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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
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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.
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“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,
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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”).
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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).
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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
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