The opinion of the court was delivered by: Reagan, District Judge:
Pro se Plaintiff Chad Tingley, an inmate at the Federal Correctional Institution in Pekin, Illinois (FCI Pekin), is serving a sentence for methamphetamine and firearms violations.*fn1 In October 2011, he sued five defendants-all of them members of the Marshall, Illinois, police department-under 42 U.S.C. § 1983, alleging that Defendants falsified the 2005 affidavit used to secure the search warrant that led to his conviction, thereby violating the Fourth Amendment. On threshold review of the Complaint, the undersigned dismissed three unnamed defendants and allowed Plaintiff's claims against Defendants Keim and Nave to proceed.
Defendants filed respective motions to dismiss based on a statute of limitations defense. By Report and Recommendation (R&R) dated March 18, 2013 and submitted via 28 U.S.C. § 636, the Honorable Stephen C. Williams, United States Magistrate Judge, recommends that the undersigned grant both motions to dismiss. Plaintiff filed a timely objection on April 3, 2013, and the deadline for responding to that objection has elapsed. The matter is ripe for ruling.
Plaintiff's timely objection having been filed, the District Judge undertakes de novo review of the portion of the R&R to which Plaintiff specifically objected. 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); SDIL-LR 73.1(b). The undersigned can accept, reject, or modify the recommendations made by Judge Williams, receive further evidence, or recommit the matter to Judge Williams with instructions. Id.For the reasons stated below, the Court ADOPTS Judge Williams' R&R (Doc. 41) in its entirety. Analysis begins with reference to the applicable legal standards.
1.Standard Governing Motions to Dismiss
Because the statute of limitations is an affirmative defense, dismissal under Rule 12(b)(6), which tests the sufficiency of a complaint, is atypical. U.S. v. N. Trust Co. , 372 F.3d 886, 888 (7th Cir. 2004). A Rule 12(c) motion for judgment on the pleadings is generally a more appropriate procedural vehicle, Yassan v. J.P. Morgan Chase & Co. , 708 F.3d 963, 975 (7th Cir. 2013), but the practical effect can be identical, Brooks v. Ross , 578 F.3d 574, 579 (7th Cir. 2009). When the complaint sets forth everything necessary to satisfy an affirmative defense, that defense may be raised in a motion to dismiss. Brooks , 578 F.3d at 579. Accord Logan v. Wilkins , 644 F.3d 577, 582 (7th Cir. 2011).
Regardless of which section of Rule 12 controls, the standard is the same. Hayes v. City of Chi. , 670 F.3d 810, 813 (7th Cir. 2012). A plaintiff's factual allegations must be enough to raise a right to relief above the speculative level. Brooks , 578 F.3d at 581 (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). Though allegations in a pro se complaint must be liberally construed, McCready v eBay, Inc. , 453 F.3d 882, 890 (7th Cir. 2006), a prisoner plaintiff may "unwittingly plead himself out of court by alleging facts that preclude recovery," Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007). In other words, dismissal for failure to state a claim is appropriate if the existence of a valid affirmative defense "is so plain from the complaint that the suit can be regarded as frivolous." Turley v. Gaetz , 625 F.3d 1005, 1013 (7th Cir. 2010). See also Walker v. Thompson , 288 F.3d 1005, 1010 (7th Cir. 2002) (validity of the affirmative defense must be "apparent" and "unmistakable").
2.Standard Governing Statute of Limitations
Federal courts must look to state law for the limitations period in § 1983 actions. 42 U.S.C. § 1988(a); Ray v. Maher, 662 F.3d 770, 772 (7th Cir. 2011). The state limitations period for personal injury actions is applied in its entirety, complete with related tolling provisions. Ray , 662 F.3d at 773. In Illinois, that period is two years. Id. ; 735 ILCS 5/13--202. Federal law, however, controls when the statute of limitations begins to run: a plaintiff's claim accrues when he "knows or should know that his . constitutional rights have been violated." Draper v. Martin , 664 F.3d 1110, 1113 (7th Cir. 2011) (citing Hileman v. Mays , 367 F.3d 694, 696 (7th Cir. 2004)). Pinpointing the accrual date requires a two-part inquiry: (1) identification of the injury and (2) determining when the plaintiff could have sued for that injury. Draper, 664 F.3d at 1113. In cases where a purportedly false affidavit lead to Fourth Amendment allegations, the limitations period begins to run as soon as plaintiff knows (or should know) about the search and the facts making it unlawful. Thomas v. McElroy , 463 F.App'x 591, 592 (7th Cir. 2012) (citing Wallace v. Kato, 549 U.S. 384, 392--94 (2007), Evans v. Poskon , 603 F.3d 362, 363 (7th Cir. 2010), and Washington v. Summerville , 127 F.3d 552, 556 (7th Cir. 1997)).
Plaintiff filed this lawsuit on October 4, 2011. If his claims accrued, as he argues, sometime in early October 2009, then the suit escapes the statute of limitations defense.*fn2 Plaintiff posits that he neither knew (nor should have known) about the false 2005 affidavit until October 2009, when, pursuant to a FOIA request, he received information from the City of Marshall concerning an internal investigation into Defendant Keim's fabrication of incident reports and possible Brady violations in other criminal investigations.
By itself, Plaintiff's argument may have sufficed to create an issue of fact as to when he should have known about Keim's false affidavit. But the argument does not exist in a vacuum: Plaintiff's Complaint unmistakably indicates precisely when he knew about Keim's fabrication (and therefore should ...