                              In the
 United States Court of Appeals
                  For the Seventh Circuit
                          ____________

No. 01-2280
DAVID PENN,
                                               Plaintiff-Appellant,
                                 v.

VERONICA HARRIS and MELVIN JONES,
                                            Defendants-Appellees.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 99 CV 8021—Harry D. Leinenweber, Judge.
                          ____________
      ARGUED JUNE 11, 2002—DECIDED JULY 10, 2002
                    ____________


  Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
  KANNE, Circuit Judge. Around midnight on a cold Decem-
ber night, hundreds of students at Chicago State University
had to evacuate their dormitory after fire alarms sounded.
The students were kept out in the cold while police and
dorm personnel made sure the building was safe to reenter.
After about 45 minutes outside, the students grew agitated.
One student, plaintiff David Penn, began pounding on the
dorm’s front door and yelling profanities at the campus
officers inside. One of the officers inside the dorm, defen-
dant Veronica Harris, opened the door and directed Penn to
come inside. The parties tell different stories about what
2                                                No. 01-2280

happened next. Penn claims that as soon as he entered the
dorm, Harris and another officer, defendant Melvin Jones,
began beating him without provocation. The defendants
claim that Penn provoked an altercation upon entering
when he shoved Harris up against a wall.
  The officers arrested Penn, and the state’s attorney
charged him with misdemeanor battery. Before Penn stood
trial, however, the state’s attorney asked the trial court to
dismiss the charge against Penn with leave to reinstate,
which the court did.
  Penn then filed this lawsuit. He sued numerous defen-
dants, including the school, its president, its board of trus-
tees, and campus police officers, and alleged numerous
claims, including constitutional claims of malicious prosecu-
tion, excessive force, and conspiracy, as well as state law
claims of battery and intentional infliction of emotional dis-
tress. The district court dismissed most of the claims and
defendants, and subsequently granted summary judgment
to defendants Jones and Harris on Penn’s claims under 42
U.S.C. § 1983 for malicious prosecution and conspiracy. A
jury trial was held on Penn’s remaining excessive force and
battery claims. Jurors found that Jones and Harris had
used excessive force, but had not committed battery, and in
the end awarded Penn no damages.
  Penn limits his appeal to challenge only the district
court’s order granting summary judgment to Harris and
Jones on his malicious prosecution claim, and the jury’s de-
cision to award him no damages on his excessive force
claim. He argues that the district court should not have
entered summary judgment in the defendants’ favor on his
malicious prosecution claim because disputed material facts
exist—namely, over whether the defendants had probable
cause to arrest him. We review summary judgment deci-
sions de novo, determining for ourselves whether, after
drawing all reasonable inferences in favor of Penn, there
No. 01-2280                                                  3

are any genuine issues of material fact. Hall v. Bodine Elec.
Co., 276 F.3d 345, 352 (7th Cir. 2002). We will affirm the
district court’s decision if there are no disputed material
facts and the defendants are entitled to judgment as a
matter of law. Id.
  The district court analyzed Penn’s malicious prosecution
claim under § 1983 by applying a tripartite formula that
until recently had been followed by this court. See Newsome
v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001) (citing cases
employing the formula). This formula inquires whether
(1) the plaintiff satisfied the requirements of a state law
cause of action for malicious prosecution; (2) a state actor
committed the malicious prosecution; and (3) the plaintiff
was deprived a liberty interest. See, e.g., Cervantes v. Jones,
188 F.3d 805, 809 (7th Cir. 1999). The district court here
concluded that Penn failed to satisfy the requirements of
the first and third prongs, and so granted summary judg-
ment to the defendants. Penn v. Chicago State Univ., 162 F.
Supp. 2d 968, 975-78 (N.D. Ill. 2001).
  Although the district court’s adherence to the formula was
proper at the time, we have since held in Newsome v. Mc-
Cabe that a § 1983 claim of malicious prosecution “should
be analyzed not under the substantive due process approach
implied by this [tripartite] formula but under the language
of the Constitution itself.” Newsome, 256 F.3d at 751. In
other words, as Newsome explained, there is no “constitu-
tional right not to be prosecuted without probable cause.” A
plaintiff therefore may not state a § 1983 claim simply by
alleging that he was maliciously prosecuted. Instead, he
must allege the violation of one of his constitutional rights,
such as the right to a fair trial. Id. at 750-52.
  In light of Newsome, we determine not whether summary
judgment is appropriate based upon the district court’s
three-part malicious prosecution inquiry, but rather wheth-
er Penn has submitted evidence that defendants violated a
4                                                No. 01-2280

constitutional right. Ienco v. City of Chicago, 286 F.3d 994,
998 (7th Cir. 2002). Penn’s claims, however, do not assert
the violation of a constitutional right. Although in Ienco, we
remanded the case to allow the plaintiff to recast his claims
in light of Newsome, we did so because we had issued New-
some during the pendency of the plaintiff’s appeal. Id. at
999. Unlike the plaintiff in Ienco, Penn has had ample time
(Newsome issued before the district court entered final
judgment and before Penn filed this appeal) to recast his
claims as violations of a constitutional right, and so we need
not do so for him. United States v. McClellan, 165 F.3d 535,
550 (7th Cir. 1999) (“we are not in the business of formulat-
ing arguments for the parties”); see also Mearday v. City of
Chicago, 196 F. Supp. 2d 700, 714 n.19 (N.D. Ill. 2002) (de-
clining to recast a plaintiff’s § 1983 malicious prosecution
claim as a constitutional violation claim to comport with
Newsome). Therefore, Penn’s § 1983 malicious prosecution
claims fail as a matter of law and we affirm the district
court’s order granting summary judgment (albeit on a dif-
ferent basis). See, e.g., Bay v. Cassens Transp. Co., 212 F.3d
969, 972-73 (7th Cir. 2000).
   Although Newsome precludes a malicious prosecution
claim brought under § 1983, a state law claim of malicious
prosecution is still viable. Penn did not allege such a state
claim, but even if he had, the defendants would still be en-
titled to summary judgment. Under Illinois law, a plaintiff
may prove malicious prosecution by showing that (1) the
defendant sued the plaintiff maliciously and without prob-
able cause; (2) the suit terminated in the plaintiff’s favor;
and (3) the plaintiff was injured beyond the cost and annoy-
ance of defending the suit. Miller v. Rosenberg, 749 N.E.2d
946, 951-52 (Ill. 2001). Penn cannot show at least two of the
required elements. First, there is no evidence in the record
that the defendants lacked probable cause to arrest him.
Probable cause exists when, based on the facts known, a
reasonable person would believe a person was guilty of
No. 01-2280                                                 5

committing an offense. Cervantes, 188 F.3d at 811. When
the facts known are undisputed, probable cause is a ques-
tion of law. Id. Penn does not dispute that he banged on the
front doors of the dormitory yelling profanities at the
officers inside. Given the circumstances of hundreds of in-
creasingly agitated students, the defendants had probable
cause to arrest Penn for disorderly conduct, which under
Illinois law occurs when a person “[d]oes any act in such
unreasonable manner as to alarm or disturb another and to
provoke a breach of the peace.” 720 ILCS 5/26-1(1); Biddle
v. Martin, 992 F.2d 673, 677 (7th Cir. 1993). The officers
arrested Penn for battery rather than disorderly conduct,
but “even if probable cause did not exist for the crime
charged [battery], proof of probable cause to arrest the
plaintiff on a closely related charge [disorderly conduct] is
also a defense” to a state law claim of malicious prosecution.
Kelley v. Myler, 149 F.3d 641, 647-48 (7th Cir. 1998).
  Second, Penn has not shown that the state’s criminal case
against him terminated in his favor. A criminal case ter-
minates in an accused’s favor when the circumstances sur-
rounding dismissal reflect innocence. Cult Awareness Net-
work v. Church of Scientology Int’l, 685 N.E.2d 1347, 1352-
53 (Ill. 1997). The state court dismissed the criminal case
against Penn, but granted the prosecutor leave to reinstate
the battery charge. Penn bears the burden of showing that
the circumstances surrounding the dismissal with leave to
reinstate are indicative of his innocence. Swick v. Liautaud,
662 N.E.2d 1238, 1242 (Ill. 1996). But Penn submitted no
evidence to that effect, except for unfounded claims (with no
citation to the record) that the prosecutor dismissed the
criminal case so that the defendants would not have to
perjure themselves at trial. Therefore, even under a state
law claim of malicious prosecution, the defendants would be
entitled to summary judgment.
  Penn also argues on appeal that the jurors erred when
they did not award him nominal and punitive damages on
6                                               No. 01-2280

his claims that the defendants used excessive force when
they arrested him. Although the jurors determined through
special interrogatories that Harris and Jones had used
excessive force, they found that the force caused no injuries
and therefore awarded no damages. The jurors also deter-
mined through special interrogatories that Harris and
Jones did not act with “malice or with reckless indifference”
warranting punitive damages. Penn argues that jurors were
required to award him at least nominal damages, but he
waived the argument because he did not object to the in-
struction given by the district court that jurors may award
nominal damages. Fed. R. Civ. P. 51; Chestnut v. Hall, 284
F.3d 816, 819 (7th Cir. 2002). Penn also waived the issue by
failing to submit a proposed nominal damages instruction
to the district court. Sims v. Mulcahy, 902 F.2d 524, 535
(7th Cir. 1990).
  For the preceding reasons, we AFFIRM the judgment of the
district court.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-97-C-006—7-10-02
