Leatha Ozier v. David Derks

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 20, 2026*
Decided May 20, 2026
Before
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
REBECCA TAIBLESON, Circuit Judge
No. 25-1576
LEATHA OZIER,
Plaintiff-Appellant,
v.
DAVID DERKS, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 24-cv-1030-bhl
Brett H. Ludwig,
Judge.
O R D E R
Leatha Ozier filed this suit under 42 U.S.C. § 1983, alleging that her home was
illegally searched in 2013. The district court granted the defendants’ motion to dismiss,
and because Ozier’s complaint is untimely, we affirm the judgment.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 25-1576 Page 2
We accept as true all factual allegations in Ozier’s complaint and view them in
the light most favorable to her. See Milbeck v. George, 171 F.4th 930, 934 (7th Cir. 2026).
In May 2013, David Derks, then an investigator with the Racine Police Department,
executed a search warrant on Ozier’s home. But according to Ozier, the warrant was
invalid. Derks signed the affidavit but did not swear under penalty of perjury that the
contents were true. He then emailed the allegedly unsworn affidavit to assistant district
attorney Jacalyn LaBre, who falsely signed that it was “subscribed and sworn to before
me.” Derks disclosed the circumstances under which the affidavit was notarized in
2014, during criminal proceedings involving another man, Adam Young. (It is unclear
how Young and Ozier are connected.) But Ozier asserts that she remained unaware of
these facts until July 27, 2024, when Young told her.
Ozier filed a complaint on August 14, 2024, alleging that the warrant was invalid
because it was unsupported by oath or affirmation, as required by the Fourth
Amendment, and so the search of her home was unlawful. See 42 U.S.C. § 1983. Ozier
further alleged that Derks and LaBre covered up this deficiency by falsely stating that
LaBre had notarized the warrant in person. The defendants moved to dismiss, arguing
that Wisconsin’s former six-year statute of limitations barred Ozier’s suit. See WIS . S TAT.
§ 893.53 (2016); Cielak v. Nicolet Union High Sch. Dist., 112 F.4th 472, 477 (7th Cir. 2024).
In response, Ozier contended that the defendants were estopped under Wisconsin law
from raising that defense because they had fraudulently concealed the lack of oath or
affirmation. The district court concluded that Ozier’s complaint was time barred, she
was not entitled to estoppel or tolling, and in any event, that she should have known of
the alleged constitutional violation in 2014 after Derks admitted to emailing the
affidavit to LaBre.
On appeal, Ozier contends that the defendants fraudulently concealed the
violation of her rights and so the statute of limitations should be tolled. We construe her
to be maintaining her argument that the defendants should be equitably estopped from
asserting a timeliness defense. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450–51
(7th Cir. 1990) (noting that fraudulent concealment is a form of equitable estoppel).
Although affirmative defenses like the statute of limitations should rarely be resolved at
the pleading stage, dismissal is appropriate where—as here—the complaint itself
establishes that the claim is untimely. See Reilly v. Will Cnty. Sheriff's Off., 142 F.4th 924,
930 (7th Cir. 2025).
Federal law determines whether equitable estoppel applies, even where the
statute of limitations is borrowed from state law. See Shropshear v. Corp. Couns. of Chi.,

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No. 25-1576 Page 3
275 F.3d 593, 598 (7th Cir. 2001). Equitable estoppel “bars a limitations defense if ‘the
defendant took active steps to prevent the plaintiff from suing in time, such as by
hiding evidence or promising not to plead the statute of limitations.’” Vergara v. City of
Chicago, 939 F.3d 882, 886 (7th Cir. 2019) (quoting Lucas v. Chi. Transit Auth., 367 F.3d
714, 721 (7th Cir. 2004)). It applies “only where the defendant, in addition to committing
the alleged wrong giving rise to the suit, has also tried to prevent the plaintiff from
suing in time.” Jackson v. Rockford Hous. Auth., 213 F.3d 389, 394 (7th Cir. 2000).
As Ozier tells it, the defendants’ misrepresentation that the affidavit was
properly notarized prevented her from filing her suit. But that misrepresentation is the
wrongdoing that underlies Ozier’s complaint, so it cannot justify equitable estoppel.
See Cada, 920 F.2d at 451. Even if we agreed that the defendants had fraudulently
concealed their misconduct, Ozier’s complaint is untimely because “the protection
offered by equitable estoppel ends when ‘the circumstance giving rise to the estoppel is
removed.’” Vergara, 939 F.3d at 887 (quoting Shropshear, 275 F.3d at 597). As Ozier
acknowledges, Derks disclosed the relevant circumstances in 2014, so the complaint
filed in 2024 came at least four years too late.
AFFIRMED

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