# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 22, 2012 *

Decided February 23, 2012

Before

FRANK H. EASTERBROOK, Chief Judge

WILLIAM J. BAUER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 11

‐ 1530

CHARLES BRUCE THOMAS,

Plaintiff

‐ Appellant

,

v.

KEN McELROY,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 10

‐ 424

‐ GPM

G. Patrick Murphy,

Judge

.

O R D E R

Charles Bruce Thomas was under investigation in 1997 for the murder of his

girlfriend, Anissa Green, when local police obtained a warrant to search his home in

Mt. Vernon, Illinois, for evidence of that crime. Nothing connecting Thomas to the murder

was found, but police did seize crack cocaine and a gun that Thomas, as a felon, was

prohibited from possessing. State authorities charged Thomas with Green’s murder, and he

was convicted based on eyewitness testimony. He was then tried and convicted in federal NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* The defendant was not served with process in the district court and is not

participating in this appeal. After examining the appellant’s brief and the record, we have

concluded that oral argument is unnecessary. See F ED

. R. A PP

. P. 34(a)(2)(C).No. 11

‐ 1530 Page 2

court for drug and gun offenses. See United States v. Thomas

, 210 F.3d 377 (7th Cir. 2000).

In June 2010, after multiple unsuccessful collateral challenges to his federal

convictions, Thomas sued Ken McElroy, a retired Mt. Vernon police officer. Thomas claims

that McElroy, who obtained the warrant to search his house, violated the Fourth

Amendment by including material falsehoods in the supporting affidavit.

The district court screened Thomas’s complaint, see 28 U.S.C. § 1915A, and

concluded that his Fourth Amendment claim is barred by the two

‐ year statue of limitations

applicable to § 1983 suits arising in Illinois. See Ray v. Maher

, 662 F.3d 770, 774 (7th Cir.

2011); 735 ILCS 5/13

‐ 202. The limitations period, the court explained, commenced at the

latest when Thomas learned about McElroy’s allegedly false statements, and Thomas had

known this information since at least February 2008 when he made the same accusation

against McElroy in one of his collateral attacks on his federal convictions. See Thomas v.

Hulick

, No. 08

‐ cv

‐ 129

‐ MJR; 2008 WL 4371300 (S.D. Ill. Sept. 19, 2008). The court thus

dismissed the complaint. See Thomas v. McElroy

, No. 10

‐ 424

‐ GPM, 2010 WL 5089824 (S.D. Ill.

Dec. 8, 2010). District judges have discretion to invoke a statute of limitations sua sponte if

the defense is apparent from the complaint or another document in the court’s files. See

Gleash v. Yuswak

, 308 F.3d 758, 760 (7th Cir. 2002).

On appeal Thomas concedes that he knew of the purportedly false affidavit more

than two years before he filed suit, but he argues that his Fourth Amendment claim did not

accrue until his collateral challenge was denied in September 2008. He is mistaken. A claim

asserting that a search violated the Fourth Amendment accrues—and the limitations period

begins to run—as soon as the plaintiff knows, or should know, about the search and the

facts making it unlawful. Wallace v. Kato

, 549 U.S. 384, 392–94 (2007) ; Evans v. Poskon

, 603

F.3d 362, 363 (2010); Washington v. Summerville

, 127 F.3d 552, 556 (7th Cir. 1997). Pending

litigation does not “un

‐ accrue” a Fourth Amendment claim. Evans

, 603 F.3d at 363. The

district court was right to dismiss Thomas’s suit at the screening stage.

AFFIRMED.