                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2274
                        ___________________________

                                    Stuart Wright

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                             United States of America

                       lllllllllllllllllllllDefendant - Appellee

    John Clark; Walter R. Bradley, in his official capacity as the United States
  Marshal for the District of Kansas; Sean Franklin, in his official capacity as a
Deputy United States Marshal and in his individual capacity; Deputy United States
Marshals 1 - 10, in their official and individual capacities (names unknown at this
   time); Stacia A. Hylton, in her official capacity; Christopher Wallace, in his
official capacity as a Deputy United States Marshal and in his individual capacity

                             lllllllllllllllllllllDefendants
                                     ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                            Submitted: March 16, 2018
                               Filed: June 13, 2018
                                  ____________

Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.
                        ____________
SHEPHERD, Circuit Judge.

       In the third iteration of this unfortunate case of mistaken identity, Plaintiff
Stuart Wright (“Wright”) appeals the district court’s1 grant of summary judgment to
the United States and the Deputy U.S. Marshals in their individual and official
capacities on Wright’s claims under the Federal Tort Claims Act (the “FTCA”).
Wright argues that the district court erred when it found there was no genuine dispute
of material fact and that, as a matter of law, the Marshals were not liable to him under
the FTCA for false arrest, false imprisonment, abuse of process, and assault and
battery. We disagree and affirm the district court’s grant of summary judgment.

                                   I. Background

       In 2008, Deputy U.S. Marshals with the U.S. Marshals Service in the District
of Kansas began an investigation to locate and arrest Vinol Wilson (“Wilson”), who
had been indicted by a grand jury in Kansas for conspiracy to manufacture, to possess
with intent to distribute, and to distribute cocaine base and to possess with intent to
distribute cocaine. The Marshals had an arrest warrant for Wilson, and after learning
that he was involved in a local Kansas City, Missouri basketball league, they planned
to arrest him during one of the games. Sources told the Marshals that at 6:30 p.m. on
August 15, 2009, Wilson would be playing basketball at the Grandview Community
Center and that he would be wearing an orange jersey with the number 23. The
Marshals also knew that Wilson was a black male body builder born in 1974. That
evening around 6:45 p.m., the Marshals entered the gym in plain clothes and
interrupted the game. With their weapons drawn, they approached a black male who
was on the court wearing an orange jersey with the number 23 and told him to get on
the ground. That man was Wright, not Wilson.


      1
       The Honorable Sarah H. Hays, United States Magistrate Judge for the Western
District of Missouri.

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        Wright did not understand the Marshals’ commands at first, and he stepped
backwards away from them. One of the Marshals grabbed Wright’s shirt and kicked
at his legs. Another applied his Tazer to Wright’s back. Once the Marshals subdued
Wright, they asked him his name. Wright told the Marshals he was Stuart Wright,
and one replied, “don’t lie to me.” The Marshals then arrested Wright, took him
outside, and sat him in the back of a police patrol car. On the way to the car, a police
officer told the Marshals that he knew Wright and that they had apprehended the
wrong man. Wright’s brother also brought Wright’s identification to the Marshals
to prove to them that he was not Wilson. The Marshals allowed Wright’s brother to
speak to Wright for a few minutes while still keeping Wright in custody. They then
asked Wright a few questions about Wilson. After detaining Wright for 20 minutes,
the Marshals released him and warned him that he had two traffic warrants he needed
to resolve.

      In December 2010, Wright filed this action against the United States. The
complaint included FTCA claims for (1) false arrest, (2) false imprisonment, (3)
abuse of process, and (4) assault and battery. Following a series of motions and
appeals,2 the FTCA claims were the only ones left before the district court. The
Marshals moved for summary judgment on those claims as well. The district court,
relying heavily on our findings in a previous appeal in this case that dealt with
Bivens3 claims, found that the United States was entitled to summary judgment on
each of Wright’s FTCA claims. Wright now appeals.




      2
       The previous appeals include Wright v. United States, 545 Fed. Appx. 588
(8th Cir. 2013) (per curiam) (unpublished) and Wright v. United States, 813 F.3d 689
(8th Cir. 2015).
      3
       Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).

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                                     II. Discussion

      “We review the district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the nonmoving party.” Hinsley v.
Standing Rock Child Protective Servs., 516 F.3d 668, 671 (8th Cir. 2008) (citing Fed.
R. Civ. P. 56(c)). “We will affirm the district court if there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.” Id.

        Generally, the United States is immune from suit; however, the Federal
Government may consent to be sued, as it did with the passage of the FTCA. Id. The
FTCA provides that “[t]he United States shall be liable, respecting the provisions of
this title relating to tort claims, in the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. § 2674. The FTCA applies “to any
claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of
process, or malicious prosecution” as a result of the “acts or omissions of
investigative or law enforcement officers of the United States Government.” Id.
§ 2680(h). The applicable tort law is “the law of the place where the act or omission
occurred.” Id. § 1346(b)(1). Because this incident took place in Missouri, Missouri’s
tort law applies.

                          A. Genuine Issue of Material Fact

      Wright argues the Government was required to respond to the concise
statement of material facts that he offered in response to the Government’s original
statement of uncontroverted material facts attached to its motion for summary
judgment. Wright asserts that Mo. D. Ct. R. W. D. 56.1(c) (“Local Rule 56”) states
the Government “must” respond to Wright’s list of material facts. Therefore, he
claims that the district court should have deemed those facts admitted because the
Government failed to respond. However, Wright mischaracterizes the rule. Local
Rule 56.1(c) states that in response to a non-moving party’s statement of material

                                           -4-
facts, “[t]he party moving for summary judgment may file reply suggestions.”
(emphasis added). The “must” to which Wright refers appears in the next sentence:
“[i]n those suggestions, the [Government] must respond to [Wright’s] statement of
additional facts in the manner prescribed in Rule 56.1(b)(1).” Id. The word “must”
does not command a response: rather, it directs how the Government should respond
to Wright’s statement of facts should it choose to do so. Therefore, the district court
was not required to deem Wright’s list of material facts admitted simply because the
Government did not directly respond to them.

       Next, Wright argues that the district court erred in finding that he did not
present evidence demonstrating the existence of a genuine dispute of material fact.
Even assuming that Wright’s statement of facts should have been deemed admitted,
the district court did not err in finding that Wright failed to demonstrate the existence
of a genuine issue of material fact. Wright outlines several factual contentions that
he claims contradict the district court’s factual statements and summary judgment
conclusions. However, none of these facts are inconsistent with the district court’s
statement of material facts. For example, the district court made no reference to
where Wright’s hands were located during the encounter, but Wright presents a
witness affidavit stating that Wright had his hands in the air. This is the only
statement regarding the placement of Wright’s hands, and, even if it is true, it is not
material because the district court already acknowledged that Wright was not
engaging in any threatening behavior. Because none of Wright’s proposed facts
contradict a material fact that the district court relied on in conducting its summary
judgment analysis, we find the district court did not err.

                      B. False Arrest and False Imprisonment

       The Missouri Supreme Court has held that “[t]he essence of the cause of action
of false arrest, or false imprisonment, is the confinement, without legal justification,
by the wrongdoer of the person wronged.” Rustici v. Weidemeyer, 673 S.W.2d 762,

                                          -5-
767 (Mo. 1984) (internal quotation marks omitted); see also Celestine v. United
States, 841 F.2d 851, 853 (8th Cir. 1988) (per curiam). “However, justification is a
complete defense to the cause of action . . . .” Rustici, 673 S.W.2d at 767. As the
district court points out, on a previous appeal, we held that the Marshals had probable
cause to arrest Wright. Wright, 813 F.3d at 698. In Wright, we found that under
Missouri law it is a crime to resist arrest and that Wright backing away from the
Marshals and not yielding to their commands was sufficient to give the Marshals
“probable cause to believe that Wright had committed the crime of resisting arrest and
justify their twenty minute restraint on Wright’s liberty.” Id. Thus we have already
determined that the initial arrest and detention were justified and reasonable under the
circumstances. Accordingly, in line with our prior opinion, we find the district court
did not err in holding that both Wright’s arrest and 20-minute detention were
justified.

                                 C. Abuse of Process

       Abuse of process requires: “(1) the present defendant made an illegal,
improper, perverted use of process, a use neither warranted nor authorized by the
process; (2) the defendant had an improper purpose in exercising such illegal,
perverted or improper use of process; and (3) damage resulted.” Stafford v. Muster,
582 S.W.2d 670, 678 (Mo. 1979). The district court focused on the second element,
finding that the Marshals did not have an improper or ulterior purpose. Wright argues
that this was incorrect and that an ulterior purpose is not the sine qua non for an abuse
of process claim.

       “We may affirm the [district court’s] judgment on any basis supported by the
record.” Holt v. Howard, 806 F.3d 1129, 1132 (8th Cir. 2015) (internal quotation
marks omitted). Rather than focusing on the second element, our analysis hinges on
the first. As stated above, we held in Wright that both the arrest and 20-minute
detention were legally justified and reasonable. Wright, 813 F.3d at 698. Therefore,

                                          -6-
we have already found that the Marshals did not make “an illegal, improper, [or]
perverted use of process,” and that the arrest and detention were warranted and
authorized by the process. See Stafford, 582 S.W.2d at 678. Accordingly, we find
the district court did not err in granting summary judgment to the Government as to
Wright’s abuse of process claim.

                                D. Assault and Battery

       Under Missouri law, a law enforcement officer can be held liable for damages
for assault and battery “only when in the performance of his duty in making the arrest
he uses more force than is reasonably necessary for its accomplishment.” Neal v.
Helbling, 726 S.W.2d 483, 487 (Mo. Ct. App. 1987) (quoting State ex rel. Ostmann
v. Hines, 128 S.W. 248, 250 (Mo. Ct. App. 1910)). In Schoettle v. Jefferson County,
we held that the officer’s use of force was insufficient to qualify as assault and battery
under Missouri law because the officer’s conduct was objectively reasonable for the
purposes of qualified immunity. Schoettle, 788 F.3d 855, 861 (8th Cir. 2015). In
Wright, we found that the Marshals were entitled to qualified immunity because “a
reasonable officer would not have had fair warning that using a single Tazer shock
against a suspected felon would have violated clearly established Constitutional
rights.” Wright, 813 F.3d at 697. Our qualified immunity holding is dispositive of
the assault and battery claim. See Schoettle, 788 F.3d at 861.

       Additionally, in Wright, we essentially engaged in a reasonableness analysis
when we emphasized that Wilson was a felon who “was considered armed and
dangerous” and had a “history of drug, weapons, and aggravated assault offenses.”
Wright, 813 F.3d at 697. Those facts, combined with our earlier findings that the
Marshals had probable cause to believe that Wright was resisting arrest, convinces
us that the Marshals’ use of force was no more than reasonably necessary to
effectuate the arrest. See id. at 697-98. Therefore, we find that the district court



                                           -7-
appropriately granted the Government summary judgment on Wright’s assault and
battery claim.

                               III. Conclusion

     For the foregoing reasons, we affirm the district court’s grant of summary
judgment in all respects.
                       ______________________________




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