UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSEPH M. JACKSON, Plaintiff-Appellant,

v. JANE STANDIFIRD, Warden; TERRY JENKS, Exec. Dir.; J.D. DANIELS, Dep. Dir.; J. DOE, Admin. Off.; RICHARD L. DUGGER, Chairman; LYNNELL HARKIN, Vice Chairman; JAMES BROWN, SR.; CLINTON JOHNSON; SUSAN B. LOVING, Defendants-Appellees. No. 11-5126 (D.C. No. 4:11-CV -00163-JHP-PJC) (N.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , EBEL , and GORSUCH , Circuit Judges.

Joseph Jackson, an Oklahoma state prisone r proceeding pro se, appeals the district

court’s dismissal of his claims asserted un der 42 U.S.C. § 1983 ag ainst various members

* After examining appellant = s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a )(2) and 10th Cir. R. 34 .1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 6, 2012

Elisabeth A. Shumaker Clerk of Court2 of the Oklahoma Pardon and Parole Board (“PPB”). We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

I. BACKGROUND Jackson received a life sentence in 1984, after his 1983 conviction, in Oklahoma state court, for first-degree murder. Under Okla homa statute, and as relevant to the facts of this case, a person convicted prior to Ju ly 1, 1998, becomes eligible for parole consideration after serving one third of hi s sentence. Okla. Stat. Ann. tit. 57, § 332.7(A)(1). Per the policy of the PPB, a life sentence is treated as forty-five years for purposes of determining the one-third mark. See Anderson v. Stat e, 130 P.3d 273, 282 (Okla. Crim. App. 2006). After being denied parole, a person shall not be reconsidered within three years. Okla. Stat. Ann. tit. 57, § 332.7(D)(1). In 1999, fifteen years after he began serving his life sentence , Jackson had his initial parole consideration hearing and was denied. The PPB again denied Jackso n parole in 2002, 2005, and 2008. On March 17, 2011, Jackson filed a pro se civil rights complaint under 42 U.S.C. § 1983 against the warden of his facility a nd the members of the PPB. He alleged a liberty interest in speci alized parole or release, and ch allenged on ex post facto grounds a provision of Oklahoma’s 1997 Truth in Sentencing Act, wh ich increased the length of time between parole consideration hearings for those convicted of violent crimes from every twelve months to every three years. Screening the case as required by 28 U.S.C. § 1915A, the district court found both claims un timely, and, in the a lternative, held that the complaint failed to state a claim upon wh ich relief could be granted. The court3 dismissed the claims with prejudice, but gr anted Jackson’s motion to appeal in forma pauperis. We agree with the district court that Jackson’s claims are time-barred, and we do not reach the question of wh ether his complaint fails to state a claim upon which relief can be granted. II. DISCUSSION

We review de novo the district court’s dismissal for failure to state a claim under 28 U.S.C. § 1915A. See McBride v. Dee r, 240 F.3d 1287, 1289 (10th Cir. 2001) (citing Sanders v. Sheahan, 198 F.3d 626, 626 (7th Cir. 1999)). Dismissa l of a claim as timebarred is treated as a dismissal for failure to state a claim. See Yoder v. Honeywell, 104 F.3d 1215, 1224 (10th Cir. 1997 ) (applying de novo review to district court’s dismissal, on the grounds that claim was time-barre d, for failure to state a claim).

The statute of limitations on a Section 1983 claim is determined by reference to the statute of limitations for pers onal injury actions in the fo rum state. Wilson v. Garcia, 471 U.S. 261, 269, 276 (1984 ). The statute of limitations on Section 1983 claims in Oklahoma is two years. Meade v. Grubbs, 841 F.2d 1512, 1524 ( 10th Cir. 1988); see also 12 Okla. Stat. Ann. § 95 (A)(3) (two-year limitation period on actions “for injury to the rights of another, not arising on contract , and not hereinafter e numerated”). However,

when a federal cause of action accrues is governed by federal law. Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 10 04). “A civil rights action [under Section 1983] accrues when facts that would support a cause of acti on are or should be apparent.” Fratus v. Deland, 49 F.3d 6 73, 675 (10th Cir. 1995) (inter nal quotation marks omitted).4 The question is “whether the plaintiff knew of facts that would put a reasonable person on notice that wrongful conduct caused the harm.” Alexander, 382 F.3d at 1216. Here, as the district court correctly co ncluded, Jackson knew of facts that would support a cause of action—i.e., that his next parole reconsidera tion hearing was more than twelve months away—at least by 2000, wh en he did not receive a hearing twelve months after his 1999 hearing. Jackson’s cause of action thus accrued no later than 2000, substantially more than two year s prior to his March 17, 2011 co mmencement of this suit. The district court correctly rejected Jackson’s claim that each successive denial of a parole reconsideration hearing was a new injury, such that hi s suit was timely in relation to the PPB’s failure to give him a hear ing in July 2009 or July 2010. See Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259, 1261-62 (11th Cir. 2003) (“Each time [a prisoner’s] parole reconsidera tion hearing is set, it does not amount to a distinct and separate injury. Rather, [the injury], to the extent it ever existed, was when the [state] Parole Board applied its new policy . . . . Th e successive denials of parole do not involve separate factual predicates and therefore do not warrant separate statute-of-limitations calculations.”). The district court also correctly reject ed Jackson’s claim that the statute of

limitations was tolled while he exhausted admi nistrative remedies. Before the district court, Jackson argued only that his suit was ti mely in relation to the denial of what he called his “petition for proceeding in mandamus” filed in Oklahoma st ate court. Jackson referred to a February 25, 2011, order of the Oklahoma Supreme Court denying his5 petition for certiorari in Case No. 107,858. According to the reco rd, Case No. 107,858 originated as a 2009 petition by Jackson, in the Oklahoma County District Court, challenging, among other things, the fact that he did not receive a parole consideration hearing in 2006 but rather was scheduled for parole reconsideration in July 2 008. This petition was related to a May 17, 2006 letter th at Jackson sent to the PPB challenging the July 2008 hearing date. As discussed above, Jackson’s cause of action accrued no later than 2000, when he became aware that he did not receive an annual parole reconsideration hearing. Accepting arguendo that Jackson’s May 2006 challenge to his July 2008 hearing date woul d have tolled the statute of limitations had it still been running, the two-year statute of limitati ons had already run in 2002, long before Jackson’s May 2006 letter.

Because Jackson’s Section 1983 action accr ued in 2000, and because nothing in the record operated to toll the operative two-year statute of limitations, the district court correctly dismissed Jackson’s claim as time-barred. 1 We do not reach the question of

1 Jackson argues that his claims are not tim e-barred because in his complaint he also “invoked jurisdiction u nder 28 U.S.C. § 1651,” which authorizes federal courts to issue all writs necessary in aid of their jurisd iction. However, “Section 1651(a) does not operate to confer jurisdiction; ancillary ju risdiction is provided where jurisdiction is otherwise already lodged in the court.” Commercial Sec. Bank v. Walker Bank & Trust Co., 456 F.2d 1352, 1355, (10t h Cir. 1972). Construing Jackson’s pro se pleadings liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), we assume Jackson claims to have sought a writ of mandamus compelling the Oklahoma Pardon and Parole Board to give him a parole consideration hearing twel ve months after his 2005 hearing. Federal courts have no power to issue writs of mandamus to state offi cers. See 28 U.S.C. § 1361; Amisub (PSL), Inc. v. Colo. De pt. of Soc. Servs., 879 F. 2d 789, 790 (10th Cir. 1989) Continued . . .6 whether his complaint was otherwis e adequate to state a claim. III. CONCLUSION For the foregoing reasons we AFFIRM the judgment of the district court. We DENY as moot Jackson’s Request for Appointme nt of Counsel (Reque st for appointment of counsel, No. 11-5126, filed Nov. 25, 2011 ). We decline to impose a strike against Jackson under 28 U.S.C. § 1915(g) for his un successful pursuit of this appeal. Finally, we remind Jackson that, althou gh the district court granted him permission to pursue his appeal in forma pauperis, see 28 U.S.C. § 1 915, he remains obligated to make partial payments until the filing fees, both in the district court and in this court, are paid in full.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge

(“No relief against state officials or state agen cies is afforded by § 1361.”). Section 1651, accordingly, does not create any separate basis of jurisdiction in this case, nor alter the fact that the statute of limitations on a Se ction 1983 action in Oklahoma is two years.