Charles Bruce Thomas v. KEN McELROY

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NONPRECEDENTIAL DISPOSITION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 FED. R. A PP. P. 34(a)(2)(C).

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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.

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