and the government introduced it at Payton's murder trial. See
id. On such facts, the Supreme Court held that police officers
must have a warrant to enter a home to effect a routine arrest,
unless exigent circumstances exist. See id. at 596-600, 100
In sharp contrast to the facts of Payton, the undisputed
facts in this case establish that Keith did not break into
Sparing's home to effect the arrest, and that Keith's entry into
Sparing's home does not violate the Fourth Amendment. See
Berkowitz, 927 F.2d at 1385-90. Thus, Sparing's reliance on
Payton is unavailing. The other cases Sparing cites, Welsh v.
Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984),
and Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111
L.Ed.2d 148 (1990), are similarly distinguishable. Welsh dealt
with a warrantless entry into the home of a drunken driving
suspect, and his arrest in his second floor bedroom. See Welsh,
466 U.S. at 743, 104 S.Ct. 2091. Rodriguez considered a
warrantless entry into a home, which was based on the consent of
a person that did not have common authority over the premises.
See Rodriguez, 497 U.S. at 179, 110 S.Ct. 2793. Both of these
cases are inapposite to the case at bar, where Keith announced
the arrest from outside the home, and Sparing acquiesced to the
arrest in his doorway.
In sum, the court finds that Keith did not violate Sparing's
Fourth Amendment right to be free from a warrantless arrest in
his home. Thus, the court answers the first qualified immunity
question in the negative, and Keith is entitled to qualified
immunity. See Chan v. Wodnicki, 123 F.3d 1005, 1008 (7th Cir.
1997). Although the court does not reach the second qualified
immunity question, the court notes that the Payton rule is well
established, and that if the facts of this case had been within
the scope of Payton, the result might well be different.
C. Malicious prosecution
Sparing's next claim is that both Keith and the Village are
liable to him for the Illinois tort of malicious prosecution.
Under Illinois law, a plaintiff must allege the following
elements to state a cause of action for malicious prosecution:
"(1) the commencement or continuance of an original criminal or
civil judicial proceeding by the defendant; (2) the termination
of the proceeding in favor of the plaintiff; (3) the absence of
probable cause for such proceeding; (4) the presence of malice;
and (5) damages resulting to the plaintiff." Meerbrey v.
Marshall Field & Co., Inc., 139 Ill.2d 455, 151 Ill.Dec. 560,
564 N.E.2d 1222, 1231 (1990) (citations omitted); see also Reed
v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996).
Keith and the Village make two arguments for summary judgment.
First, they argue that they are entitled to summary judgment
because the existence of probable cause is an absolute bar to a
claim of malicious prosecution. See Biddle, 992 F.2d at 678.
Second, Keith and the Village argue that the Illinois Tort
Immunity Act immunizes public officers from liability, unless the
officers acted wilfully and wantonly.
Sparing disagrees, maintaining that Keith did not have probable
cause, and that a jury must decide whether Keith acted wilfully
and wantonly. As evidence of Keith's allegedly wilful and wanton
conduct, Sparing contends that: (1) Keith did not fully
investigate Sanfratello's alleged crime of forging his name on
Smith's checks; (2) Keith did not seek legal advice prior to
arresting Sparing; (3) Keith did not obtain an arrest warrant;
and (4) Keith tried to force Sparing to testify against Smith. As
outlined below, the court need not address whether Keith's
conduct was wilful and wanton.
The court's earlier finding of probable cause necessarily dooms
Sparing's malicious prosecution claim. Illinois has a "strict
requirement that a malicious prosecution plaintiff show . . .
that the action complained of . . . was commenced maliciously and
without probable cause." Cult Awareness Network v. Church of
Scientology Int'l, 177 Ill.2d 267, 226 Ill.Dec. 604,
685 N.E.2d 1347, 1357 (1997) (noting that
Illinois law disfavors an action for malicious prosecution); see
also Juriss v. McGowan, 957 F.2d 345, 349 n. 1 (7th Cir. 1992)
("[A] person arrested with probable cause cannot cry false
arrest"). In this case, Sparing is unable to succeed on his
malicious prosecution claim because the court has already found
that Keith had probable cause to arrest Sparing. Thus, an
essential element of the claim fails, and Keith and the Village
are entitled to summary judgment.
The court also notes that Sparing utterly fails to present
evidence to support his prima facie case of malicious
prosecution. As stated earlier, summary judgment is the "put up
or shut up" stage of a lawsuit, where the party opposing the
motion must present evidence that could convince a trier of fact
of the merits of the claim. See Shank, 192 F.3d at 682 (citing
Schacht, 175 F.3d at 503-04). Sparing presents no evidence that
the criminal charges against Sparing were resolved in his favor,
or that Keith acted with malice. The court is not obliged to
"scour the record" to find Sparing's evidence, and declines to do
so in this case. See Waldridge v. American Hoechst Corp.,
24 F.3d 918, 922 (7th Cir. 1994). Further, as discussed below,
Sparing's claimed damages are not recoverable. Therefore, the
court has an additional basis on which to grant summary judgment
in favor of Keith and the Village on Sparing's claim of malicious
Although the issue is now moot, the court agrees with Keith and
the Village that Sparing's lost investment damages are not
recoverable. A § 1983 case is a tort claim, and the damages
available are governed by general principles of tort law. See
Memphis Comm. Sch. Dist. v. Stachura, 477 U.S. 299, 305-06, 106
S.Ct. 2537, 91 L.Ed.2d 249 (1986); see also Button v. Harden,
814 F.2d 382, 383 (7th Cir. 1987). A tort plaintiff does not
recover all damages that arise from "but for" causation. See
Movitz v. First Nat'l Bank of Chicago, 148 F.3d 760, 762-65 (7th
Cir. 1998). The plaintiff is only entitled to recover those
damages that are foreseeable. See id. (and cases cited
therein). Here, Sparing's claimed damages are anything but
foreseeable. According to Sparing, his arrest prevented him from
being named to the board of directors of a corporation that was
in the process of being formed, and which the corporate promoters
planned to take public. As a director, Sparing would have had the
opportunity to purchase 100,000 shares of stock at $0.075 per
share. The parties dispute whether Sparing was actually chosen to
be on the board of directors of the new corporation, or was
merely being considered as a director. In any event, Sparing was
not a director at the time of his arrest, and never purchased any
stock. Further, the court is unaware of whether the stock was
available for purchase at the time of Sparing's arrest, or if the
new corporation had even been incorporated when Sparing was
arrested. Finally, the stock is not yet being publicly traded.
Nonetheless, Sparing claims that he is entitled to the difference
between the stock's current value and the price at which he would
have purchased the stock, $0.075 per share. Put another way,
Sparing wants Keith and the Village to pay him for an investment
he did not make. In addition to the patently speculative nature
of the damages, Sparing fails to present any evidence to suggest
that Keith and the Village had reason to foresee the claimed
damages. Sparing's argument is similar to that of an angry
teenager, who tells his parents that he did not choose to be
born, and is just as unavailing. See Movitz, 148 F.3d at 762-65
(and cases cited therein).
The court finds that Keith has qualified immunity against
Sparing's claims brought under 42 U.S.C. § 1983. The court also
finds that Sparing's malicious prosecution claim is barred by the
existence of probable cause for Keith to arrest Sparing. Further,
the court finds that Sparing fails to present evidence of
essential elements of his malicious prosecution claim. For the
foregoing reasons, the court grants Defendants' motion for
and denies Plaintiff's motion for partial summary judgment. Case
IT IS SO ORDERED.