Wright v. United States of America et al

Filing 136

ORDER granting the defendant's Motion of the United States to Dismiss or, in the Alternative, for Summary Judgment on the Remaining Common Law Tort Claims (doc. # 115 ). Signed on May 18, 2017 by Magistrate Judge Sarah W. Hays. (Clinton, Erica)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
STUART WRIGHT,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendants.

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) Case No. 10-01220-CV-W-SWH
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ORDER

I. BACKGROUND
Pending before the Court is the Motion of the United States to Dismiss or, in the
Alternative, for Summary Judgment on the Remaining Common Law Tort Claims (doc. #115).
Plaintiff’s First Amended Complaint contained the following counts against a number of
defendants: Count I, a claim under 42 U.S.C. §1983 for Violations of the Constitution of the
United States, the Constitution of the State of Missouri, and Federal and State Laws; Count II, a
claim under 42 U.S.C. §1985 (Conspiracy) for Violations of the Constitution of the United
States, the Constitution of the State of Missouri and Federal and State Laws; Count III a claim
under the Federal Tort Claims Act; and Count IV, a claim pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971). (Doc. #1, at 16-26)
On May 9, 2012, this Court granted defendants’ motions to dismiss Counts I and II of the
complaint. (Docs. #67, 68) On September 6, 2012, this Court granted in part and denied in part
the Motion of the Individual Capacity Defendants to Dismiss Count IV of Plaintiff’s First
Amended Complaint or, in the Alternative, for Summary Judgment, and dismissed claims against

two individual defendants but left intact claims against defendants Sean Franklin and Christopher
Wallace (Wright I) 1. (Doc. #76) Franklin and Wallace brought an interlocutory appeal and on
appeal, the Eighth Circuit remanded the matter for this Court to properly address defendants’
qualified immunity defense and make findings of fact and conclusions of law sufficient to permit
appellate review (Wright II). (Doc. #82-1, at 4-5)
On remand, this Court granted in part and denied in part defendants’ motion for summary
judgment (Wright III). (Doc. #104, at 20) The Court granted the portion of the motion seeking
summary judgment as to plaintiff’s claim against Franklin and Wallace for false arrest, finding
that both marshals were entitled to qualified immunity. (Doc. #104, at 8-11) The Court denied
the portion of the motion seeking summary judgment as to plaintiff’s claims against Franklin and
Wallace for excessive force and improper search and seizure, finding that neither marshal was
entitled to qualified immunity. (Doc. #104, at 11-19)
Franklin and Wallace appealed the Court’s decision with regard to their claim for
qualified immunity on plaintiff’s claims of excessive force and improper search and seizure.
(Doc. #108-1) On appeal the Eighth Circuit found that the marshals were entitled to qualified
immunity on plaintiff’s excessive force claim and improper search and seizure claim and

1

Adhering to the parties designation, this Court will refer to the following orders herein
as follows:
Wright I This Court’s original ruling on qualified immunity (doc. #76)
Wright II The Eighth Circuit’s opinion remanding the case for additional
consideration (doc. #82-1)
Wright III This Court’s opinion granting in part and denying in part the
request for qualified immunity filed by Franklin and Wallace (doc.
#104)
Wright IV The Eighth Circuit’s opinion reversing the Court’s denial of
qualified immunity to Franklin and Wallace (doc. #108-1)
Wright V This Court’s opinion granting qualified immunity to Franklin and
Wallace (doc. #111)
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remanded the matter for this Court to enter judgment consistent with the Eighth Circuit’s
determination (Wright IV). (Doc. #108-1, at 10-15) On March 15, 2016, this Court entered the
order granting the remaining marshals’ motion for summary judgment with respect to Count IV
of Plaintiff’s First Amended Complaint. (Doc. #111) Plaintiff’s only remaining claim is a claim
under the Federal Tort Claims Act (Count III) against the United States, which is the subject of
the pending motion.
II. SUMMARY JUDGMENT STANDARD
A moving party is entitled to summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A party who moves for summary judgment bears the burden of
showing that there is no genuine issue of material fact for trial. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). However, “the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Id. at 247-48. “Material facts” are those “that might affect the outcome of
the suit under the governing law,” and a “genuine” material fact involves evidence “such that a
reasonable jury could return a verdict for the nonmoving party.” Id. at 248.
The initial burden of proof in a motion for summary judgment is placed upon the moving
party to establish the absence of any genuine issue of material fact. See Olson v. Pennzoil Co.,
943 F.2d 881, 883 (8th Cir. 1991). If the moving party meets its initial burden, the nonmoving
party must then produce specific evidence to demonstrate genuine issues for trial. Id. When the
burden shifts, the nonmoving party may not rest on the allegations in its pleadings, but must set
forth, via citation to material in the record, specific facts showing that a genuine issue of material

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fact exists. See Fed.R.Civ.P. 56(c)(1); Stone Motor Co. v. General Motors Corp., 293 F.3d 456,
465 (8th Cir. 2002). When considering a motion for summary judgment, a court must scrutinize
the evidence in the light most favorable to the nonmoving party and the nonmoving party “must
be given the benefit of all reasonable inferences.” Mira Chem. Prods. Corp. v. First Interstate
Commercial Corp., 950 F.2d 566, 569 (8th Cir. 1991). The Court may not weigh the evidence in
the record, decide credibility questions or determine the truth of factual issues, but merely
decides if there is evidence creating a genuine issue for trial. See Bell v. Conopco, Inc., 186 F.3d
1099, 1101 (8th Cir. 1999).
III. UNDISPUTED FACTS
In a separate filing before this Court, defendant filed a Statement of Uncontroverted
Material Facts and Settled Legal Conclusions. (Doc. #116) Plaintiff has raised a number of
general objections to the form and content of the filing, including objections as to whether
Wright IV controls some of the factual findings. (Doc. #120) Nevertheless, plaintiff has not
provided any argument or evidence which disputes any of the facts listed below. Additionally,
the majority of defendant’s undisputed facts appear to be taken almost directly from the Eighth
Circuit’s decision in Wright IV. Therefore, this Court will not address any of the general
objections as stated by plaintiff. (Doc. #120, at 1-7) The Court finds the following facts:
1. In 2008, Vinol Wilson (“Wilson”) was indicted by a Grand Jury in United States
District Court for the District of Kansas for “conspiracy to manufacture, to possess
with intent to distribute and to distribute cocaine base ‘crack,’ and to possess with
intent to distribute and to distribute cocaine” in the case styled United States v. Vinol
Wilson, 07-20168-07-JWL/DJW (D. Kan.).
2. Following the issuance of the indictment, an arrest warrant was issued for Wilson;
however, Wilson was not immediately located or apprehended.

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3. Sean Franklin (“Franklin”), a Deputy U.S. Marshal with the U.S. Marshals Service in
the District of Kansas began an investigation to locate and arrest Wilson.
4. Based upon his investigation, Franklin learned that Wilson had a history of drug,
weapons, and aggravated assault offenses. Wilson had previously spent 78 months in
prison for distributing crack cocaine and for using a firearm during a drug trafficking
crime. Wilson was considered armed and dangerous.
5. Based upon his investigation, Franklin also learned that Wilson was a black male,
born in 1974, was into steroids, body building and dog fighting, and was known to
play basketball with a group of acquaintances in leagues and tournaments in and
around the Greater Kansas City area.
6. For example, Franklin learned that Wilson played on a basketball team that
participated in the 2008 Sunflower State games.
7. After obtaining a copy of that particular team roster, Franklin undertook to talk with
other team members in an effort to locate Wilson pursuant to the outstanding arrest
warrant.
8. Eventually, on Wednesday, April 15, 2009, at approximately 9:30 a.m., Franklin
made contact with Walt Bethea (“Bethea”), who had played on Wilson’s basketball
team.
9. Franklin showed Bethea a 2005 Kansas driver’s license photo of Wilson that Bethea
identified as “V” and Bethea stated that he knew Wilson was wanted by law
enforcement for some drug charges.
10. Bethea also informed Franklin that Wilson played in an adult basketball league in
Grandview, Missouri, on Wednesday evenings at the Grandview Community Center.
Bethea said that Wilson had played in the prior week’s game and was scheduled to
play again that evening at 7:30 p.m.
11. Bethea stated that Wilson’s team was comprised of all black males who wore orangecolored jerseys.
12. At approximately 11:30 a.m., on April 15, 2009, Franklin met with a confidential
source (“CS”) at the Grandview Community Center.

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13. Franklin showed CS the 2005 Kansas driver’s license photo of Wilson and CS stated
that he had seen the person pictured, but did not know his name. CS stated that he
had seen Wilson wearing an orange-colored jersey with the number “23” on the back.
CS also said that Wilson had been seen with his hair in braids (or “corn-rows”),
sporting a goatee, and with gold-colored teeth.
14. CS obtained access to the roster for the team that he identified as the one Wilson
played for. CS explained that individuals playing in the league do not have to
produce any identification and rosters are not checked by the Grandview Community
Center for any accuracy. The roster included many of the names that had been on the
team roster for the 2008 Sunflower State games, including Walt Bethea. Wilson’s
name was not listed, but there was an entry for “Vyshon Watson.” Franklin knew
that Wilson had a minor son named Vyshon.
15. CS told Franklin that he would assist in identifying Wilson if he showed up for the
basketball game scheduled for that evening.
16. At 5:55 p.m., Franklin received a telephone call from a friend of Bethea’s advising
him that the basketball game involving Wilson’s team had been moved up to 6:30
p.m. Franklin then placed a call to CS to verify the information, but CS did not
answer.
17. At around this same time, Franklin set up a briefing area near the parking lot for
Grandview High School to organize the arrest team and the operation to arrest
Wilson.
18. At approximately 6:15 p.m., CS called Franklin and confirmed that the game
involving Wilson’s team had been moved up an hour and was due to start at 6:30 p.m.
CS advised Franklin that Wilson had been seen inside the gym.
19. A few minutes later, CS called Franklin again and informed Franklin that Wilson was
on the gym basketball floor, shooting baskets before the start of his game, was
wearing an orange-colored jersey with the number “23,” and had his hair braided.
20. At 6:45 p.m., Franklin arrived at the Grandview Community Center along with five
other Deputy U.S. Marshals (“DUSMs”), including Wallace.
21. Franklin made the decision to arrest Wilson during the course of the basketball game
because he felt that this offered the greatest protection for the safety of the public and
law enforcement. The Grandview Community Center parking lot was crowded with
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cars and people (including young people) and Franklin believed it might pose an
undue public danger to try to apprehend Wilson as he was leaving the Community
Center. Franklin also wanted to avoid any high speed vehicle chase. In addition,
Franklin felt that by arresting Wilson on the basketball court while a game was in
progress, he was somewhat less likely to have a weapon on him.
22. Franklin, Wallace, and the three other DUSMs proceeded to the basketball gym
where Franklin showed his badge to the individual running the clock/scoreboard.
Franklin told the individual to sound the buzzer and stop the game.
23. Franklin was wearing his U.S. Marshals Service badge on a chain around his neck.
24. After the buzzer sounded, Franklin and Wallace went out on to the basketball court
toward a black male with braided hair, wearing an orange-colored jersey with the
number “23” on it.
25. Franklin was not in uniform but was wearing a Kansas City Royals jersey.
26. Stuart Wright, a black male wearing an orange-colored number “23” jersey, was
playing a full-court game of basketball when very suddenly, Wright saw a man
wearing a Kansas City Royals shirt directly in front of him with a gun pointed at him.
The man (Franklin) was not wearing a uniform of any type that Wright was able to
recognize. Wright did not see anything identifying the man as a law enforcement
officer. The man was yelling things as he came toward Wright, but Wright could not
understand what he was saying. At some point, Wright heard the name Vinol
mentioned. Wright told the man his name and said that he had identification there in
the gym.
27. As Franklin approached Wright he ordered Wright to get on the ground. Wright,
however, continued to back away from Franklin, at which point Franklin grabbed
Wright’s shirt and kicked at his legs. The pulling of Wright and the kicking of
Wright’s legs brought Wright directly in between Franklin and Wallace. Wallace
deployed his taser hitting Wright in the back and Wright fell to the floor.
28. Franklin leaned over Wright to say in his ear something to the effect of, “What’s your
name?” Wright told Franklin he name was Stuart Wright, a name that Franklin
recognized from the team roster for the 2008 Sunflower State games. Franklin said,
“Don’t lie to me.” Wright told Franklin again that his name was Stuart Wright.
Franklin then said something to the effect of, “Let’s get him out of here.” Wright was

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then pulled to his feet and handcuffed. Many of the people present were telling the
men that Stuart Wright was not Vinol Wilson.
29. As Wright was being taken out of the Community Center, he saw a Grandview Police
Officer named Officer Clausing. Wright recognized him as a Grandview High School
graduate. Wright said something to the effect of, “My name is Stuart Wright. I
graduated from Grandview High School in 1996. You know me.” Officer Clausing
then said something to the general effect of, “That’s not the guy. I know him.”
Nevertheless, Wright was taken out of the Community Center in handcuffs and put in
the back of a police patrol car that was outside the Community Center.
30. Stuart Wright’s brother, Stephen Wright, got Stuart’s driver’s license from his gym
bag and gave the license to Franklin very shortly after Stuart had been taken out of
the gym. Franklin told Stephen Wright that he knew his brother was not Vinol, but
Franklin said that Stuart had information about Vinol. Franklin and one other man
told Stephen to speak to his brother and tell him to tell them what they wanted to
hear.
31. Stephen Wright was allowed to speak to Stuart briefly in the car. Stephen told Stuart
to give the officers any information he had about Vinol. The officers continued to
keep Stuart in custody.
32. The officers asked Stuart Wright questions about whether he played basketball with a
man named Vinol Wilson, where Vinol Wilson was, and how Wright could help them
find Vinol Wilson. Wright told the men he did not know where Vinol Wilson was or
how to find him.
33. Wright heard some of the men talking about taking a vacation day the next day, about
how everything had happened so fast, about hearing the “pop-pop” sounds, and about
how they had gotten the wrong guy.
34. After fifteen minutes to twenty minutes, the officers pulled Stuart Wright out of the
car. They told him that they were going to pull the probes out of him. One of the
men asked if he needed an ambulance. Stephen Wright told them that he was going
to take Stuart to the hospital (which he did). One of the officers also told Stuart that
they were going to un-cuff him. He then said, “Now, you’re not going to go all apeshit on me, are you?” Stuart told him, “No.”
35. Franklin told Stuart Wright that he had checked him in the computer and that he had
two traffic warrants that he needed to handle.
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36. Wright was then released after being in custody for approximately fifteen to twenty
minutes.
IV. CONCLUSIONS OF LAW
The Federal Tort Claims Act (hereafter FTCA) waives the government’s sovereign
immunity with regard to certain tort claims made against the United States. 28 U.S.C.A. §2674.
Specifically, “with regard to acts or omissions of investigative or law enforcement officers of the
United States,” the FTCA waives the governments sovereign immunity with regard to claims
arising “out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious
prosecution.” 28 U.S.C.A. §2680(h). Such claims are governed by the “law of the place where
the act or omission occurred.” 28 U.S.C.A. §1346(b). Because the matters described in the First
Amended Complaint occurred in Missouri, Missouri substantive law applies to the matter.
In his First Amended Complaint, plaintiff identifies the following torts as actionable
under the FTCA: false arrest, false imprisonment, abuse of process, assault and battery. 2 (Doc.
#38, at ¶44(c)) This Court will address each tort separately, with the exception of false arrest
and false imprisonment.

As discussed more fully below, claims for false arrest and false

imprisonment in Missouri are treated similarly. Therefore, this Court will address both
simultaneously.

Paragraph 44(c) of plaintiff’s First Amended Complaint also mentions negligence. (Doc.
#38, at ¶44(c)) Defendant notes that plaintiff has included the term negligence but that the
terminology appears to be used in relation to the four tort claims specifically identified and is not
to serve as an individual claim of negligence. (Doc. #115, at 6 fn. 7) In his responsive brief,
plaintiff states “at issue herein are four FTCA claims which have not yet been considered by
either this Court or the 8th Circuit: false arrest, false imprisonment, abuse of process, and assault
and battery.” (Doc. #119, at 7) Therefore, this Court will treat plaintiff’s First Amended
Complaint as alleging claims for false arrest, false imprisonment, abuse of process, and assault
and battery.
2

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The parties have given great attention as to whether the law of the case dictates this
Court’s findings in the instant action. Generally the “doctrine posits that when a court decides
upon a rule of law, that decision should continue to govern the same issues in subsequent stages
in the same case.” Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391, 75 L. Ed. 2d
318 (1983), decision supplemented, 466 U.S. 144, 104 S. Ct. 1900, 80 L. Ed. 2d 194 (1984).
Earlier decisions of the court will thus be followed in the same case unless there is “clear error or
manifest injustice.” Alexander v. Jensen-Carter, 711 F.3d 905, 909 (8th Cir. 2013). The law of
the case is a rule of practice and not a limitation of power. Kempe v. United States, 160 F.2d
406, 408 (8th Cir. 1947). The doctrine “merely expresses the practice of courts generally to
refuse to reopen what has been decided[.]” Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct.
739, 740, 56 L. Ed. 1152 (1912).
This Court finds the doctrine inapplicable in this matter. The doctrine focuses on a
court’s ruling as a matter of law.

While the Bivens claims and the FTCA claims are

complimentary they are not the same issues. Thus, the Eighth Circuit’s findings on qualified
immunity do not as a matter of law automatically dictate the legal conclusions under the FTCA.
However, the rationale behind the grant of qualified immunity for certain Bivens claims may be
highly relevant to the issue of whether defendant is entitled to summary judgment on the FTCA
claims, especially in view of the fact that the Court should be considering the same factual
scenario in deciding the various legal issues. Therefore, rather than simply relying on the law of
the case, the Court will consider whether defendant is entitled to summary judgment on each
claim brought under the FTCA.

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A. False Arrest and False Imprisonment
The Supreme Court of Missouri has explained that the “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, 767 (Mo. 1984)
(quoting Warrem v. Parrish, 436 S.W.2d 670, 672 (Mo. 1969)). Justification is a complete
defense to both false arrest and false imprisonment. Blue v. Harrah's N. Kansas City, LLC, 170
S.W.3d 466, 473 (Mo. Ct. App. 2005); Rankin v. Venator Grp. Retail, Inc., 93 S.W.3d 814, 822
(Mo. Ct. App. 2002). Therefore, if Franklin and Wallace were justified in arresting plaintiff,
then no cause of action may accrue for false arrest or false imprisonment.
In Wright III, this Court found that defendants Franklin and Wallace were entitled to
qualified immunity because they had a reasonable belief that the person they arrested (Wright)
was the person they had probable cause to arrest pursuant to a warrant (Wilson). (Doc. #104, at
11) In so finding this Court relied on Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d
484 (1971), and cases extrapolating the holding in Hill to civil suits for mistaken identity. (Doc.
#104, at 10) In Hill, the Supreme Court found no Fourth Amendment violation where the
arresting officers arrested an individual they reasonably and in good faith believed to be the
individual sought and that such mistaken belief did not invalidate the arrest. Hill v. California,
401 U.S. 797, 802-04, 91 S. Ct. 1106, 1110, 28 L. Ed. 2d 484 (1971). Therefore, the question in
civil cases involving mistaken identity is whether a reasonable officer could have believed that
the plaintiff was the person named in the warrant. (Doc. #104, at 10) In Wright III, this Court
found that Franklin and Wallace took steps to locate and identify Wilson and given the situation,
the marshals could have a reasonable belief that plaintiff was Wilson. (Doc. #104, at 11)

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The reasoning behind this Court’s decision in Wright III, applies equally to the matter
now before us. Vinol Wilson, the man the marshals’ sought, was under indictment for drug
charges and a warrant for his arrest had issued. As discussed in Undisputed Facts numbers 4-19,
supra, the marshals investigated Vinol Wilson and his whereabouts and took measures to ensure
that the person apprehended was Vinol Wilson. Therefore, at the time of the arrest, the marshals
were justified in arresting the individual they believed to be Vinol Wilson.
The question now turns to whether the continued detention of Vinol Wilson after the
marshals confirmed his identity constitutes false imprisonment. Again justification is a complete
defense for false arrest/imprisonment. Blue, 170 S.W.3d at 480. While the decision in Wright IV
does not automatically dictate the finding in this instant case, its reasoning with regard to the
continued detention is relevant. In Wright IV, the Eighth Circuit found that:
Wright was held for up to twenty minutes after the Marshals realized that he was
not Vinol Wilson. Under the totality of circumstance, we conclude the delay in
releasing Wright was reasonable. The Marshals removed Wright from the
commotion of the gymnasium and verified his identity. Detaining Wright in the
police vehicle allowed the Marshals to defuse the situation and reorient
themselves. The twenty minute delay was a minimal intrusion on Wright’s liberty
interest and may have ensured that no further mistakes were made that day.
(Doc. #108-1, at 14-15) The Eighth Circuit, as well as this Court, previously found that the
initial arrest of plaintiff was justified. The Eighth Circuit further determined that the marshals’
continued detention of plaintiff was reasonable under the circumstances. This reasoning applies
equally to the common law claim of false arrest and imprisonment. Therefore, defendant’s
motion for summary judgment with regard to the false arrest and false imprisonment claims is
granted.

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B.

Abuse of Process

In order to prevail on a claim of abuse of power, a claimant must show that “(1) the
defendant made an illegal, improper, perverted use of process, which was 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) the plaintiff sustained damages as a result.” Diehl
v. Fred Weber, Inc., 309 S.W.3d 309, 320 (Mo. Ct. App. 2010). The Supreme Court of Missouri
has explained that “use of process” “refers to some wilful [sic], definite act not authorized by the
process or aimed at an objective not legitimate in the proper employment of such process.”
Stafford v. Muster, 582 S.W.2d 670, 678 (Mo. 1979). Abuse of process is a willful act and the
defendant must have “some ulterior purpose[.]” Cmty. Title Co. of St. Louis v. Lieberman
Mgmt. Co., 817 S.W.2d 255, 258 (Mo. Ct. App. 1991). Where “the use of process was within
the right of the defendant[,]” an abuse of process claim will fail. Missouri Highway & Transp.
Comm'n v. Commerce Bank of Kansas City, N.A., 763 S.W.2d 172, 177 (Mo. Ct. App. 1988).
At least one Missouri court has found no abuse of process where an officer’s actions are
“supported by a facially valid warrant and probable cause.” Pitts v. City of Cuba, 913 F. Supp.
2d 688, 715 (E.D. Mo. 2012).
Plaintiff argues that there is a genuine dispute as to whether the continued restraint of
Wright and questioning Wright as to Vinol Williams was authorized by the arrest warrant. (Doc.
#119, at 19) Plaintiff has not shown any evidence of an ulterior purpose as required. Instead, his
argument goes to whether or not the marshals falsely imprisoned plaintiff. As discussed above,
the Eighth Circuit has concluded that Wright’s continued detention under the circumstances was
justified. Therefore, defendant’s motion for summary judgment is granted with regard to the
abuse of process claim.

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C. Assault and battery
In Missouri there is no claim that encapsulates both assault and battery; instead they are
two separate claims. Devitre v. Orthopedic Ctr. of St. Louis, LLC, 349 S.W.3d 327, 335 (Mo.
2011). A plaintiff alleging battery must prove that there was “intended, offensive bodily contact
with another person.” Cooper v. Albacore Holdings, Inc., 204 S.W.3d 238, 246 (Mo.App. 2006).
Whereas assault is “‘any unlawful offer or attempt to injure another with the apparent present
ability to effectuate the attempt under circumstances creating a fear of imminent peril.’” Phelps
v. Bross, 73 S.W.3d 651, 655 (Mo.App. 2002). The analysis is different, however, where an
assault and battery charge stems from an arrest by a law enforcement officer. In such situations,
“a plaintiff asserting that he was battered in the course of an arrest must prove that the officer
used unreasonable force in effecting it.” Neal v. Helbling, 726 S.W.2d 483, 487 (Mo. Ct. App.
1987). The plaintiff has the duty to show that the arresting officer “used more force thereabout
than was reasonably necessary to effect the arrest.” State ex rel. Ostmann v. Hines, 128 S.W.
248, 250 (1910).
Defendant argues that the marshals did not use any more force than was reasonably
necessary given the circumstances. (Doc. #115, at 16) Defendant points out that when the
marshals approached Wright, they believed Wright to be the individual they sought who was
potentially an armed and dangerous fugitive. (Doc. #115, at 16) Additionally, defendant argues
that Wright’s actions as the marshals came toward him could have led them to believe that
Wright was resisting arrest. (Doc. #115, at 16) Defendant also argues that “[n]o claim for assault
and battery exists in this case for the same reason that [the Eighth Circuit in Wright IV found
that] qualified immunity barred any Constitutional claim for excessive force for ‘a single Taser

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shock causing no lasting injury to a man reasonably identified as the suspect and purported to be
armed and dangerous.’” (Doc. #115, at 19)
In Wright IV, the Eighth Circuit did not address the question of whether the force used
was excessive. Instead, the question the Eighth Circuit addressed was a narrow question under
the qualified immunity analysis of whether a reasonable officer would have been on notice that
the officer’s conduct violated a clearly established right. (Doc. #108-1 at 8) In Wright III, this
Court, citing Shekleton v. Eichenberger, 677 F.3d 361 (8th Cir. 2012), found that a “reasonable
officer on the scene would not have believed it necessary to use a taser where the man the
officers believed to be Vinol Wilson merely backed away from a man holding a gun on him.”
(Doc. #104, at 13) This Court reached the conclusion in Wright III based upon its repeated
viewings of the video tape, which was offered into evidence by the parties, and which caused this
Court to reach the following factual finding:
26. Wright never threatened Franklin by any words he said or anything he
did. Wright did not push Franklin’s arm away and did not take a stance and
cock his arm like he was about to throw a punch at Franklin. Wright did not
attempt to run away from Franklin. Wright merely backed away from a man in a
Royals shirt who had a gun aimed at him.
(Doc. # 104, at 4) (footnote omitted) These facts were key to this Court’s original ruling that
defendants Franklin and Wallace were not entitled to qualified immunity on the excessive force
claim. However, these facts were not adopted by the Eight Circuit opinion nor were they part of
defendant’s proposed uncontroverted facts. Thus, this Court has not relied upon any findings it
reached from its review of the video tape in ruling on the pending summary judgment motion.3

While plaintiff’s claims under the FTCA raise different legal issues from the claims
brought against the individual defendants, the facts upon which the Court’s legal conclusions are
based must be consistent. Had fact number 26 from this Court’s decision in Wright III, been
adopted by the Eighth Circuit, the Court believes that defendants Franklin and Marshall would
not have been entitled to summary judgment on the qualified immunity issue for the reasons
3

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The holding of the Eighth Circuit in Wright IV on the issue of plaintiff’s constitutional
claim of excessive and unreasonable force is clearly relevant to the assault and battery claim. As
noted in Schoettle v. Jefferson Cty., Mo., 2014 WL 1117587 (E.D. Mo. Mar. 20, 2014), the
reasoning used in granting qualified immunity on an excessive force claim applies equally to
granting summary judgment in favor of the government on an assault and battery claim.
Schoettle v. Jefferson Cty., Mo., No. 4:12-CV-2075-SPM, 2014 WL 1117587, at *11 (E.D. Mo.
Mar. 20, 2014), aff'd sub nom. Schoettle v. Jefferson Cty., 788 F.3d 855 (8th Cir. 2015).
Holtgreven v. O'Fallon Police Dep't, 2009 WL 2032164 (E.D. Mo. July 8, 2009), presents
a similar situation. There one of the defending officers received a radio call regarding an erratic
driver. Holtgreven v. O'Fallon Police Dep't, 2009 WL 2032164, at *3 (E.D. Mo. July 8, 2009).
The officer attempted to pull the car over but the car continued on its way, swerving into
oncoming traffic and onto the shoulder. Id. When the vehicle finally came to a stop the driver
failed to respond to the officer’s attempts to show his hands and exit the vehicle. Id. at *4. After
several failed attempts to get the driver to exit the vehicle, the officer grabbed the driver and
pulled the driver out of the car and onto the ground. Id. at *5. While on the ground, the officer
attempted to handcuff the driver, but the driver was combative and failed to comply with the
officer’s orders. Id. Two other officers observed the officer and the driver struggling and
attempted to use the tip of their taser gun to deliver an electrical charge in an attempt to subdue
the driver. Id. When that failed to subdue the driver, the officers then deployed their tasers. Id.
The driver sued alleging that at the time of the incident he was suffering from diabetic shock. Id.
at *3. In ruling on the assault and battery claim against the officers, the court found that the

discussed in this Court’s prior opinion. Therefore, based upon the 8th Circuit’s decision in
Wright IV, this Court has not relied upon that factual finding in deciding the pending summary
judgment motion.
16

driver failed to demonstrate that the officers “used more force than was reasonably necessary.”
Id. at *11. In ruling on the assault and battery claim, the court in Holtgreven cited and relied
upon its earlier discussion denying plaintiff’s constitutional claim of excessive force. The same
facts upon which the court relied upon to find that the officers use of force was objectively
reasonable on the constitutional claims compelled a finding that the plaintiff “posed a threat to
public safety and to the individual officers[, and that his] refusal to exit his vehicle and his
subsequent act of resisting arrest necessitated the use of force by the officers.” Id. Therefore, the
court found that the officers did not use any more force than was reasonably necessary given the
facts of the case and that the officers were entitled to summary judgment on the assault and
battery claims for the same reasons they were entitled to summary judgment on the constitutional
claim. Id.
The Eighth Circuit in Wright IV also drew a distinct contrast between the facts of this
case and the facts in Shekleton v. Eichenberger, 677 F.3d 361 (8th Cir. 2012), upon which this
Court had relied in denying qualified immunity to two of the defendants. In Shekleton the
plaintiff “was an unarmed suspected misdemeanant, who did not resist arrest, did not threaten the
officer, did not attempt to run from [the officer], and did not behave aggressively towards [the
officer].” Shekleton, 677 F.3d at 366. In contrast, the Eighth Circuit in Wright IV noted that
officers in the instant matter were attempting to apprehend an individual (Wilson) who had a
“history of drug, weapons, and aggravated assault offenses[.]” The court stressed that the
evaluation as to the reasonableness of the officer’s use of force must be made “‘from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’”
(Doc. #108-1, at 11) The court thus found that a “reasonable officer would not have had fair

17

warning that using a single Tazer shock against a suspected felon would have violated clearly
established Constitutional rights.” (Doc. #108-1, at 11)
Other Eighth Circuit cases also stress that the court must decide the issue based upon
facts known to the officers at the time. See Washington v. Drug Enf't Admin., 183 F.3d 868, 874
(8th Cir. 1999); Cook v. City of Bella Villa, 2008 WL 1360838, at *6 (E.D. Mo. Apr. 8, 2008),
aff'd, 582 F.3d 840 (8th Cir. 2009).
In this case, the undisputed facts as set forth by defendant, and which were previously
adopted by the Eighth Circuit, do not reflect that the marshals used more force than was
reasonably necessary to effect the arrest. The marshals were attempting to locate an individual
who had a history of involvement with drug, weapons and aggravated assault offenses. (See
Undisputed Fact #4, supra) The marshals investigated the matter and took steps to confirm that
the individual sought would be at the Grandview Community Center at a certain time and would
be dressed in a uniform with the number “23”. (See Undisputed Fact ##4-19, supra) The officers
also planned the arrest in order to minimize danger to the public or themselves. (See Undisputed
Fact #21, supra) When Wright did not immediately comply with the marshals’ demand and was
positioned in between the two marshals, albeit unintentionally, the officers use of force was
reasonable in light of the marshals’ understanding of the individual sought. This Court finds that
summary judgment in favor of the United States should be granted.
Based on the foregoing, it is

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ORDERED that the defendant's Motion of the United States to Dismiss or, in the
Alternative, for Summary Judgment on the Remaining Common Law Tort Claims4 (doc. #115) is
GRANTED.

/s/ Sarah W. Hays
SARAH W. HAYS
UNITED STATES MAGISTRATE JUDGE

4

As an alternative to the request for summary judgment, defendant sought the dismissal
of the tort claims under the Supremacy Clause. Given the Court’s ruling granting summary
judgment on all remaining issues, the Court need not address the alternative motion to dismiss.
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