author: BENTON, Circuit Judge. SHEPHERD, Circuit Judge,

text:
    IN RE: TARGET CORPORATION CUSTOMER DATA SECURITY BREACH LITIGATION Jim Sciaroni, Objector-Appellant v. Consumer Plaintiffs, Plaintiff-Appellee Target Corporation, Defendant-Appellee In re: Target Corporation Customer Data Security Breach Litigation Leif A. Olson, Objector-Appellant v. Consumer Plaintiffs, Plaintiff-Appellee Target Corporation, Defendant-Appellee In re: Target Corporation Customer Data Security Breach Litigation Leif A. Olson, Objector-Appellant v. Consumer Plaintiffs, Plaintiff-Appellee Target Corporation, Defendant-Appellee In re: Target Corporation Customer Data Security Breach Litigation Jim Sciaroni, Objector-Appellant v. Consumer Plaintiffs, Plaintiff-Appellee Target Corporation, Defendant-Appellee In re: Target Corporation Customer Data Security Breach Litigation Leif A. Olson, Objector-Appellant v. Consumer Plaintiffs, Plaintiff-Appellee Target Corporation, Defendant-Appellee
    No. 15-3909, No. 15-3912, No. 16-1203, No. 16-1245, No. 16-1408
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 15, 2017
    Filed: May 2, 2017
    Counsel who represented appellants were Melissa Ann Holyoak, of Washington, DC. Theodore H. Frank, of Washington, DC., Robert C. Black, III., of Edina, MN.
    Counsel who represented the appellee were David Woodward, of Minneapolis, MN., Norman Siegel, of Kansas City, MO., Vincent J. Esades, of Minneapolis, MN., John A. Yanchunis, of Tampa, FL., Eleanor Michelle Drake, of Minneapolis, MN., Daniel C. Girard, of San Franscisco, CA., Ariana J. Tadler of New York, NY.
    Before BENTON and SHEPHERD, Circuit Judges, and STRAND, District Judge.

      . The Honorable Leonard T. Strand, United States District Judge for the Northern District of Iowa, sitting by designation.

   BENTON, Circuit Judge.

On February 1, 2017, this court remanded this case for further consideration of class certification, and reversed the imposition of a $49,156 appeal bond. In re Target Corp. Customer Data Sec. Breach Litig., 847 F.3d 608 (8th Cir. 2017). Appellant Leif A. Olson moved to amend the second sentence in footnote 3 of the opinion:

3In the district court, Olson also argued that the settlement did not satisfy Rule 23’s superiority or predominance requirements, the settlement terms were unfair on account of self-dealing by class counsel, and the attorneys’ fee provision was unreasonable. Though the court rejected all of these arguments, Olson appeals only the district court’s ruling on certification.

Olson contends that he appealed the fairness of the settlement and the reasonableness of the attorneys’ fees. The motion to amend is granted.

I.

This case follows Target’s announcement that third parties compromised the payment-card data and personal information of up to 110 million Target customers. Before the district court, appellants Olson and Jim Sciaroni separately objected to the settlement proposed by Target and a class of consumer-plaintiffs. After the district court overruled Olson’s and Sciaroni’s objections and approved the settlement, they filed separate notices of appeal. This court consolidated those appeals, making Olson’s and Sciaroni’s appellant briefs due the same day, April 7.

Olson filed his brief on time. Olson’s brief did not address attorneys’ fees or settlement fairness. Sciaroni submitted his brief two hours later, but it was deficient and not accepted for filing. Sciaroni submitted a revised brief six days later. The next day, Olson filed a letter. While labeled on the docket as a “28(j) citation,” the letter explicitly invokes Federal Rule of Appellate Procedure 28(i). Olson wrote that he “joins Sections II and TV of the Opening Brief of James Sciaroni, with the exception of the sentence on page 35 accusing the settling parties of collusion.” Sections II and IV of Sciaroni’s brief address attorneys’ fees and settlement fairness.

II.

Rule 28(i) provides: “In a case involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a-brief, and any party may adopt by reference a part of another’s brief.” The Rule does not state how a party “may adopt” part of another’s brief. This court does not have a local rule on point. The courts of appeals, however, routinely permit Rule 28(i) adoption by letter. See United States v. Harris, 740 F.3d 956, 969 n.7 (5th Cir. 2014); United States v. Pryor, 474 Fed.Appx. 831, 832 n.2 (2d Cir. 2012); United States v. Cocchiola, 358 Fed.Appx. 376, 378 n.3 (3d Cir. 2009). Olson’s letter adopted by reference part of Sciaroni’s brief pursuant to Rule 28(i).

The consumer-plaintiffs and dissenting opinion propose several reasons why Olson’s Rule 28(i) letter did not effectively adopt part of Sciaroni’s brief. None of these reasons withstand scrutiny.

A.

The consumer-plaintiffs and dissenting opinion suggest that Rule 28(i) does not allow a party to adopt argument on an issue that the party did not itself raise in its principal brief. True, Rule 28(a) requires an appellant’s brief to state the issues presented for review. Rule 28(i), however, allows parties to raise issues they did not raise in their own briefs — in fact, it allows a party not to file a brief at all and simply “join in” another’s brief. Stated differently, Rule 28(a) provides one way for parties to raise issues on appeal, and Rule 28(i) provides another.

The consumer-plaintiffs and dissenting opinion argue that the appellant’s brief is the only way a party may raise an issue on appeal. They invoke United States v. Bohmont, 413 Fed.Appx. 946 (8th Cir. 2011), but they misread it. There, appellant Wade Bohmont filed a brief raising five issues. Appellant Colton D. Inmon filed his brief four months later. Inmon listed two issues, both raised by Bohmont in his brief. In-mon “also included a separate ‘Statement Regarding Adoption of Briefs of Other Parties,”’ saying he “hereby adopts the factual and legal arguments set out in the brief of appellant Wade Bohmont.” Id. at 949 n.4. The court “construe[d] that statement as an effort by Inmon pursuant to Federal Rule of Appellate Procedure 28(i) to adopt the factual and legal arguments made in Bohmont’s brief with respect to the two specific issues listed by Inmon for review.” Id. In the context of Inmon’s adoption statement, this interpretation makes sense. Inmon filed his brief months after Bohmont’s, so by listing two issues that Bohmont had listed and generically stating that he adopted Bohmont’s arguments, Inmon indicated he intended to raise only those two issues. The court’s statement that it “will not permit” Inmon to adopt Bohmont’s other issues is not (as the dissenting opinion contends) a universal prohibition on adopting arguments not listed in a principal briefs statement of issues. See id. Rather, it is a specific prohibition fit to the facts of Bohmont: Inmon filed his brief well after Bohmont’s, listed specific issues that Bohmont also listed, and generically adopted “the factual and legal arguments set out in” Bohmont’s brief.

Here, unlike Bohmont, Olson (the party adopting part of another’s brief) filed his brief before Sciaroni. His Rule 28(i) letter clearly identifies the parts of Sciaroni’s brief that he is adopting. The dissent’s rule would make adoption by a first-filing party like Olson extraordinarily cumbersome: If the first filer did not correctly predict the issues that other parties would raise, it would have to move the court for permission to amend its first-filed brief to add issues to its statement of issues, and receive that permission, before it could join in those unpredicted issues. Rúle 28(i) renders unnecessary that time-consuming, formalistic exercise by permitting adoption of additional issues through a letter like Olson’s.

B.

The dissenting opinion argues that allowing adoption in this instance would permit Olson to effectively violate the principal-brief word limit imposed by Rule 32(a)(7)(B)(i). But Rule 32(a)(7)(B)(i) places a word limit on principal briefs. Olson’s adoption does not cause his principal brief to exceed the word limit.

The Rules impose no limit on the volume of words one party may adopt. And for good reason. Permitting unlimited adoption of briefs will generally not cause the problems that word limits are designed to avoid, since courts and parties already have to read and respond to the briefs being adopted. There is, therefore, generally no cost to permitting unlimited adoption. The dissenting opinion’s proposal, on the other hand, would likely require courts and parties to read and respond to additional requests for permission to file over-length briefs, taxing judicial resources and increasing the costs of litigation. Making invocation of Rule 28(i) more onerous could also lead to “needless repetition of arguments,” exacerbating the problem of too-long briefs. See 16AA Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3974.5 (4th ed. 2017).

The dissenting opinion points out that in Microsoft Corp. v. DataTem, Inc., the Federal Circuit stated that “incorporation” under Rule 28(i) “cannot be used to exceed word count.” Microsoft Corp. v. Data-Tern, Inc., 755 F.3d 899, 910 (Fed. Cir. 2014). This court should not follow the Federal Circuit’s Microsoft approach for several reasons. First, it is dicta: the case was not a consolidated appeal and did not fall under Rule 28(i). Id. Second, the Federal Circuit has narrowly characterized the opinion as standing for the proposition that “co-parties in non-consolidated appeals cannot use incorporation pursuant to FRAP 28(i) to exceed word count limits prescribed by FRAP 32(a)(7).” DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1252 n.2 (Fed. Cir. 2014) (emphasis added). Third, and most importantly, the approach is wrong. Nothing in Rule 28(i) suggests that parts of briefs adopted by reference should be treated as literally incorporated into a party’s principal brief for word-count purposes. And, as discussed, the approach undermines the policies that word limits serve.

C.

The dissenting opinion contends that Olson’s Rule 28(i) letter allowed him to avoid the consequences of filing a late brief under Rule 31(c). While Rule 31(c) permits an appellee to move to dismiss an appeal if an appellant fails to timely file a brief, it does not require the courts to decline to consider claims contained in late-filed briefs. Cf. United States v. Williams, 187 F.3d 645 (8th Cir. 1999) (unpublished table opinion) (declining to strike appellee brief filed one day late, where appellant filed reply brief and there was “no indication that he was prejudiced by” the appellant’s late filing). Here, even if Olson’s Rule 28(i) letter were treated as a brief under Rule 31(c), the consumer-plaintiffs did not make a Rule 31(c) motion. The consumer-plaintiffs also have not argued that they were prejudiced by Olson’s Rule 28(i) letter, which he submitted just one day after Sciaroni’s brief. This case does not present this court with any question about the relationship between Rule 28(i) letters and brief-filing deadlines.

D.

The consumer-plaintiffs argue that Olson cannot adopt Sciaroni’s arguments because they are “fact-bound.” True, when arguments are fact-specific to one party, another party cannot adopt those arguments without further explanation. United States v. McDougal, 133 F.3d 1110, 1114 (8th Cir. 1998). The settlement-fairness and attorneys-fees arguments that Olson adopted do not include any class-member-specific facts, so this limitation on adoption does not apply.

* * * * * * *

Olson is correct that, due to the 28(i) letter, the second sentence of footnote 3 should be modified. The motion to amend the opinion is granted. Footnote 3 is replaced with the following:

3In the district court, Olson also argued that the settlement did not satisfy Rule 23’s superiority or predominance requirements, the settlement terms were unfair on account of self-dealing by class counsel, and the attorneys’ fee provision was unreasonable. The court rejected all of these arguments. In addition to challenging the district court’s ruling on certification in his principal brief, Olson filed a Rule 28(i) letter joining the sections of Sciaroni’s brief alleging self-dealing by class counsel (except a sentence accusing the settling parties of collusion) and unreasonable attorneys’ fees. In proceedings following the limited remand, therefore, Olson may raise the issues of self-dealing and attorneys’ fees.

SHEPHERD, Circuit Judge,

dissenting.

The courts of appeals typically do not care how parties invoke Rule 28(i). See, e.g., United States v. Isgar, 739 F.3d 829, 834 n.1 (5th Cir. 2014) (allowing adoption by both motion and letter). This is likely because, as apparent from cases the majority cites, a party’s decision to adopt the arguments of a co-party ordinarily is not met with opposition or controversy. Here, however, there is a genuine dispute between opposing parties, which has brought the court’s attention to the need for clarity as to Rule 28(i)’s limited scope. That need is neglected in the court’s Order amending the opinion. I therefore respectfully dissent.

Olson’s letter — erroneously labeled in the docket as a “28(j) citation” — in fact invoked Federal Rule of Appellate Procedure 28(i), apparently as a matter of unfettered right, in order to adopt new issues that Olson’s principal brief intentionally abandoned. See Appellant’s Br. 21. Incorporation in this case not only allows Olson to expand the issues he presents for review in his previously filed brief, it also condones the violation of rules governing word limits and filing deadlines, all without permission of the court. For the reasons that follow, I conclude that Olson’s invocation of Rule 28(i) was insufficient to preserve the issues of self-dealing and attorneys’ fees, and I would therefore deny Olson’s motion.

First, while Rule 28(i) allows parties to adopt each other’s appellate arguments in some circumstances, it should not be read to allow a party to multiply the issues that his briefing raises for review. In United States v. Bohmont, Appellant Inmon set forth only two issues in his brief and filed a separate statement adopting the entirety of Co-Appellant Bohmont’s brief, which included additional issues. 413 Fed.Appx. 946, 949 n.4 (8th Cir. 2011). The court remarked:

We construe [Inmon’s] statement as an effort by Inmon pursuant to Federal Rule of Appellate Procedure 28(i) to adopt the factual and legal arguments made in Bohmont’s brief with respect to the two specific issues listed by Inmon for review, and we permit it. We will not permit the adoption statement to expand the listing of the two specific issues set out in Inmon’s formal Statement of the Issues to include the other issues listed by Bohmont in his Statement of Issues.

Id. (emphasis added).

Here, Olson seeks to expand the two issues stated in his principal brief — class certification and the appeal bond — to include two entirely different issues raised by Sciaroni — self-dealing and attorneys’ fees. Under Bohmont, this effort should fail; Olson should only be allowed to adopt those arguments of Sciaroni’s that relate to class certification and the appeal bond.

Second, Rule 28(i) should not be used to undertake end-runs around other procedural rules. Consider, for instance, Rule 32(a)(7)(B)(i), which set forth a 14,000-word limit-on principal briefs at the time Olson’s principal brief was filed. Olson’s brief is certified as containing 13,909 words, excluding the parts that are exempted from the word limit — only 91 words short of the limit. If Olson is permitted to incorporate the relevant issues and accompanying arguments in Sciaroni’s brief by means of Rule 28(i), he will effectively evade Rule 32(a)(7)(B)(i). The Federal Circuit addressed this issue in Microsoft Corp. v. DataTern, Inc., where the court held that Rule 28(i) “cannot be used to exceed word count,” as such use would be “fundamentally unfair” to the other parties. 755 F.3d 899, 910 (Fed. Cir. 2014).

Another .rule vulnerable to Olson’s use of Rule 28(i) is Rule 31(c), which sets forth the consequences of a party’s failure to timely file a brief. Appellants’ principal briefs were due April 7, 2016. One week later, Olson filed the 28(i) letter, adopting substantial new issues that he intentionally excluded in his principal brief. Had Olson’s representatives missed the April 7 deadline in order to assert the issues and arguments themselves, the consumer-plaintiffs would have had grounds to request dismissal of Olson’s appeal. See Fed. R. App. P. 31(c). Olson’s invocation of Rule 28(i) therefore allowed him to raise untimely issues without risking the consequences of filing a late brief. At a minimum, counsel should have sought leave of the court to expand the issues after the filing deadlines terminated. This would have satisfied the default procedural rules, see Fed. R. App. P. 27(a)(1), and invited the court to consider whether Rules 31 and 32 (and any other applicable rules) should yield to Olson’s wish to multiply the issues in his appeal.

In sum, Rule 28(i) is meant to augment, not undermine, the procedural rules governing appellate briefs. It is not a source of unlimited recourse for parties such as Olson who omit issues and fail to abide by those rules. To avoid unduly expanding Rule 28(i), and to preserve the integrity of other applicable rules, I would deny the motion to amend the opinion.

      . Rule 32(a)(7)(B)(i) has since been amended to provide a word limit of 13,000.


source: Caselaw Access Project

author: COLLOTON, Circuit Judge.

license: Public Domain

text:
    Zack Zafer DYAB, Petitioner-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 16-1296
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 20, 2016
    Filed: May 4, 2017

      Counsel who presented argument on behalf of the appellant was Virginia G. Villa, of Saint Croix Falls, WI.
    Counsel who presented argument on behalf of the appellee was Michael L. Cheever, AUSA, of Minneapolis, MN.'

      Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

   COLLOTON, Circuit Judge.

Zack Dyab was convicted of money laundering in 2010. Since then, he has filed three motions to vacate his sentence under 28 U.S.C. § 2255. The most recent motion asserted that he is actually innocent of the money laundering offense and challenged the entry of an amended judgment that adjusted the restitution order from the original judgment. The district court denied the motion, and we affirm, albeit in part on different grounds.

I.

Dyab pleaded guilty in 2010 to conspiracy to commit wire fraud, in violation of 18 U.S.C. § 371, and money laundering, in violation of 18 U.S.C. § 1957. The court sentenced him to concurrent terms of 5 years’ and 10 years’ imprisonment, respectively. The court also ordered Dyab to pay approximately $6.4 million in restitution.

In 2012, Dyab sought post-conviction relief under § 2255. The district court denied his motion, and this court affirmed. Dyab v. United States, 546 Fed.Appx. 601 (8th Cir. 2013) (per curiam). Dyab then sought to bring a second § 2255 motion under the guise of Federal Rule of Civil Procedure 60(b). The district court denied the motion on the ground that it was a second or successive § 2255 motion that was not authorized by the court of appeals, see 28 U.S.C. § 2255(h), and this court summarily affirmed.

In October 2014, the government moved to amend the restitution portion of Dyab’s judgment. The motion asked the court to reflect that one of Dyab’s co-conspirators, Barbara Puro, was jointly and severally liable for a portion of Dyab’s restitution obligation. The government also requested that the court update the identities and addresses of certain restitution payees.

The government explains that it filed the October 2014 motion electronically but did not mail a copy to Dyab. Dyab asserts that counsel who represented him in 2012 and 2013 did not forward the motion to Dyab and that he never received a copy. In November 2014, the district court amended the judgment as requested, but did not alter the total amount of restitution owed by Dyab or the amount of restitution owed to each payee.

According to Dyab, he first received notice of the amended judgment in October 2015. The next month, he filed his third § 2255 motion. The motion made two claims: (1) that the court’s entry of an amended judgment violated his right to due process of law under the Fifth Amendment, because he received no notice or opportunity to be heard, and (2) that he is actually innocent of money laundering.

The district court denied the motion. The court determined that Dyab’s due process rights were not violated because the amended judgment did not alter the amount of restitution that he was required to pay or the terms of his imprisonment or supervised release. The court also ruled that Dyab could not challenge his money laundering conviction because the motion was successive under § 2255(h) and untimely under § 2255(f). The court granted a certificate of appealability on both issues, and Dyab appeals. We review the district court’s determinations de novo. Gray v. United States, 833 F.3d 919, 922 (8th Cir. 2016).

II.

Dyab’s first claim relies on the Due Process Clause of the Fifth Amendment. He asserts that the court entered an amended judgment that modified the restitution order without ensuring that he was given notice and an opportunity to be heard. The lack of notice, he contends, also deprived him of an opportunity to appeal the amended judgment.

Whatever the merits of Dyab’s due process challenge to the amended judgment, a motion under § 2255 is not the correct vehicle by which to pursue it. Section 2255(a) allows “[a] prisoner in custody ... claiming the right to be released” to “move the court' which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a) (emphasis added). Dyab seeks to challenge the district court’s changes to the restitution portion of his judgment. Because a dispute about restitution does not involve a claim of a right to be released from custody, a prisoner cannot challenge the restitution portion of his sentence under § 2255. Shephard v. United States, 735 F.3d 797, 798 (8th Cir. 2013) (per curiam); United States v. Bernard, 351 F.3d 360, 361 (8th Cir. 2003).

To be sure, Dyab raises a procedural argument, rather than a direct challenge to the restitution order, but the procedural challenge is aimed ultimately at setting aside the district court’s order amending his restitution obligation. Dyab is not claiming a procedural violation that interfered with a right to be released from custody. So even if Dyab could show that his due process rights were violated, he cannot obtain relief under § 2255. See Shephard, 735 F.3d at 798 (Sixth Amendment claim not cognizable under § 2255 where ineffectiveness of counsel allegedly affected amount of restitution); Cunningham v. United States, Nos. 1:14-CR-225 (LMB), 1:15-CV-1262 (LMB), 2015 WL 6160722, at *4 (E.D. Va. Oct. 20, 2015) (“Cunningham’s alternative attempt to couch his restitution claims in the framework of ineffective assistance of counsel also does not merit collateral relief because ‘Mon-cognizable claims do not morph into cognizable ones by osmosis.’ ”) (quoting United States v. Thiele, 314 F.3d 399, 402 (9th Cir. 2002)).

Without addressing the merits of Dyab’s due process claim, therefore, we affirm the district court’s rejection of that claim on the ground that it is not cognizable under § 2255. This is not to say that a district court has unlimited license to amend a restitution order to the detriment of a prisoner without giving the prisoner notice and an opportunity to be heard. The government suggests that the All Writs Act, 28 U.S.C. § 1651, may be available to remedy a violation of due process in the amendment of a restitution order. But Dyab has not proceeded on that basis, even with the assistance of experienced counsel in his brief on appeal, and the factual record was not well developed in the district court while Dyab was proceeding pro se. The district court concluded on the record available that the amended judgment incorporated only “ministerial and minor corrections.” We express no view at this juncture on whether Dyab might be entitled to relief under some provision other than § 2255.

III.

Dyab also seeks to raise a claim that is unrelated to the modification of the restitution portion of the judgment. He asserts that he is actually innocent of money laundering, and that the court should set aside his conviction and sentence for violating 18 U.S.C. § 1957. When a prisoner seeks to file a second or successive motion under § 2255, he must obtain authorization from the court of appeals based on specific cirL cumstances that are not present here. See 28 U.S.C. § 2255(h). The district court observed that Dyab had filed two previous § 2255 motions and ruled that his challenge to the money laundering conviction was barred as coming in a “successive motion” under § 2255(h). The court also deemed the motion untimely under § 2255(f).

Dyab responds that his motion is not successive because he is challenging a new, intervening judgment that resulted from the district court’s modification of the restitution obligation. Where a “resentenc.-ing” in a state court leads to a “new judgment,” an application for a writ of habeas corpus under 28 U.S.C. § 2254 challenging at least some aspects of that new judgment is not second or successive. Magwood v. Patterson, 561 U.S. 320, 331, 342 & n.17, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010). Dyab contends that the amended judgment that modified his restitution obligation counts as a “new judgment.” Therefore, he contends, the instant motion is the first to challenge the new judgment, and he is not required to receive authorization from the court of appeals to challenge the money laundering conviction. See King v. Morgan, 807 F.3d 154, 157 (6th Cir. 2015).

When considering a habeas corpus application under § 2254, “the phrase ‘second or successive’ must be interpreted with respect to the judgment challenged.” Magwood, 561 U.S. at 333, 130 S.Ct. 2788 (emphasis added). Hence the inquiry into whether a district court has entered a new, intervening judgment. A § 2255 motion is aimed at vacating, correcting, or setting aside a “sentence” rather than a “judgment,” 28 U.S.C. § 2255(a), but it is well established that “[t]he sentence is the judgment” in a federal criminal case. Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937). Accordingly, other courts have imported Magwood’s inquiry about entry of a new judgment to the § 2255 context. E.g., Johnson v. United States, 623 F.3d 41, 45 (2d Cir. 2010).

Not every change to a judgment results in a new sentence or judgment that wipes clean the slate of post-conviction motions previously filed. A district court modifying a sentence under 18 U.S.C. § 3582(c), for example, “does not impose a new sentence in the usual sense.” Dillon v. United States, 560 U.S. 817, 827, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). A sentence modification is “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Id. at 826, 130 S.Ct. 2683. As such, a sentence modification under § 3582(c) does not allow a prisoner to avoid the bar on successive § 2255 motions. United States v. Jones, 796 F.3d 483, 486 (5th Cir. 2015). Correction of a clerical or typographical error pursuant to Criminal Rule 36 likewise does not justify disregarding prior § 2255 motions in the “second or successive” calculus. Fixing typographical errors and the like does not substantively alter a prisoner’s sentence, so a § 2255 motion filed after such a correction is still a challenge to the original judgment. Marmolejos v. United States, 789 F.3d 66, 70-71 (2d Cir. 2015).

We think the district court’s order amending Dyab’s judgment did not result in a new sentence or judgment. There was no substantive proceeding that adjudicated Dyab’s guilt or determined the appropriate punishment. The court did not alter the amount of Dyab’s restitution obligation or otherwise change Dyab’s sanction. The court updated the addresses of certain restitution payees, showed a change in identity for two payees from “MERS” (a national registry of mortgages originated by others) to a specific lender, added an “also known as” name for one lender, and reflected that one of Dyab’s co-conspirators, who was sentenced after Dyab, was jointly and severally liable for some of the losses. These actions are not sufficient to create a new sentence or judgment that would permit Dyab to file a successive § 2255 motion. The district court thus correctly dismissed Dyab’s successive motion for lack of authorization from the court of appeals. See 28 U.S.C. § 2255(h).

The judgment of the district court is affirmed.

      . The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota.


author: LOKEN, Circuit Judge.

text:
    Raleigh SPIZMAN; Robert Spizman, Plaintiffs-Appellants v. BCBSM, INC., doing business as Blue Cross Blue Shield of Minnesota, Defendant-Appellee
    No. 16-1557
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 13, 2016
    Filed: May 4, 2017

      Counsel who presented argument on behalf of the appellants was Damon Ward, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Joel A. Mintzer, of Eagan, MN. The following attorney(s) also appeared on the appellee brief; Kathy S. Kimmel, of Minneapolis, MN., and Doreen A. Mohs, of Eagan, MN.
    Before LOKEN, MURPHY, and KELLY, Circuit Judges.
   LOKEN, Circuit Judge.

Raleigh Spizman was hospitalized in November 2012 and returned home in February 2013, where a home health care provider and personal care assistants began providing 24-hour care. Blue Cross Blue Shield of Minnesota provided Raleigh’s health care insurance coverage under a group policy sponsored by her husband Robert’s employer. When Blue Cross denied the Spizmans “round-the-clock” in-home health care coverage, they brought this federal action, asserting claims for relief in six counts. The district court granted Blue Cross’s motion to dismiss four counts, the parties stipulated to dismiss the remaining two counts with prejudice, and the court entered final judgment in favor of Blue Cross. The Spizmans appeal the dismissal of Counts I, II, and VI, claims governed by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001 et seq. We take the facts alleged in their First Amended Complaint as true and also consider insurance policy documents placed in the district court record. See Enervations, Inc. v. Minn. Min. & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004). Reviewing the grant of a motion to dismiss de novo, we affirm. Harris v. The Epoch Grp., L.C., 357 F.3d 822, 824-25 (8th Cir. 2004) (standard of review).

I. Background.

On November 18, 2012, Raleigh Spizman was hospitalized and placed on a ventilator after developing acute aspiration pneumonia. Before she returned home, the Spiz-mans decided to hire a home health agency to manage her pulmonary rehabilitation and weaning off the ventilator. The Blue Cross group health care policy issued to Robert’s employer was renewed each calendar year. The Complaint alleged that a Blue Cross agent assured Robert that the 2013 policy would provide the same coverage as the 2012 policy and would cover Raleigh’s home health care needs. In early 2013, a Blue Cross claims representative told Robert there would be coverage and benefits for Raleigh’s care. Despite these assurances, Blue Cross denied coverage of the Spizmans’ claim for 24-hour in-home health care.

After Blue Cross denied their internal appeals, the Spizmans brought this federal court action. Blue Cross moved to dismiss five of the six counts. Magistrate Judge Leung issued a Report and Recommendation recommending dismissal of four counts, which the district court adopted after de novo review. Spizman v. BCBSM, Inc., 2015 WL 4569249, at *11 (D. Minn. July 27, 2015). Not dismissed were Count III, a claim under 29 U.S.C. § 1132(a)(1)(b) to recover benefits due under the ERISA plan, and Count IV, a claim under 29 U.S.C. § 1132(a)(3) for “other appropriate equitable relief’ from Blue Cross’s alleged breach of fiduciary duty in refusing to pay plan benefits. The district court subsequently dismissed Counts III and IV with prejudice pursuant to the parties’ stipulation. The issues before us are the Spizmans’ appeal of the dismissal of Counts I, II, and VI.

II. Count I and Count II.

In Counts I and II, the Spizmans sought a declaratory judgment that they are entitled to health care coverage for “Raleigh Spizman’s home health care needs and requirements,” which, the Complaint alleged, included “intermittent skilled nursing care beyond one visit per day.” The Blue Cross 2012 Certificate of Coverage provided home health care coverage for “[sjkilled care ordered in writing by a physician and provided by [approved] home health agency employees,” including “[s]ervices that are medically necessary and provided by a licensed nurse.” But the policy excluded “services for or related to private-duty nursing.” The policy did not define “private-duty nursing.” The 2013 Certificate of Coverage likewise covered skilled home health care services including “intermittent skilled nursing care in your home.” But the policy excluded “extended hours skilled nursing care, also referred to as private-duty nursing care.” The policy defined “intermittent skilled nursing care” as “a visit by a registered nurse or licensed practical nurse of up to four (4) consecutive hours in duration.”

A. In Count I, the Spizmans alleged that the 2013 policy Certificate substantially reduced the coverage provided by the 2012 policy by limiting the coverage of “intermittent skilled nursing care” to one four-hour visit; that Blue Cross violated its affirmative duty to notify the Spizmans of this reduction in coverage, rendering the exclusion in the 2013 policy void under Minnesota law; and that the 2012 policy covered Raleigh’s “round-the-clock 24-hour care” because its “private-duty nursing care” exclusion was ambiguous and therefore must be construed against the insurer under Minnesota law.

In dismissing Count I, Magistrate Judge Leung concluded that interpreting “private-duty nursing” as excluding Raleigh’s round-the-clock in-home nursing care “is consonant with the term’s commonly understood meaning and dictionary definition.” Spizman, 2015 WL 4569249, at *5. We agree. Webster’s Third New International Dictionary defines “private-duty,” when used as an adjective describing a nurse, as “caring for a single patient either in the home or in a hospital.” (unabridged ed. 1986). Similarly, Medicaid regulations provide that “[pjrivate duty nursing services means nursing services for beneficiaries who require more individual and continuous care than is available from a visiting nurse.” 42 C.F.R. § 440.80. Providing Raleigh round-the-clock in-home nursing care is nursing “for a single patient ... in the home,” and is “more individual and continuous care than is available from a visiting nurse.” Thus, the Spizmans’ claim for round-the-clock in-home nursing care fell within the plain meaning and common understanding of the “private-duty nursing” exclusion in the 2012 policy.

On appeal, the Spizmans argue that, under Minnesota law, “private-duty nursing” is an ambiguous term that must be construed in their favor. This contention is contrary to well-settled federal law. In construing ambiguities in an ERISA plan, we apply federal law, not Minnesota law, construing disputed language “without deferring to either party’s interpretation.” Brewer v. Lincoln Nat’l Life Ins. Co., 921 F.2d 150, 154 (8th Cir. 1990) (quotation omitted), cert. denied, 501 U.S. 1238, 111 S.Ct. 2872, 115 L.Ed.2d 1038 (1991). We do not apply “the contra insurer or reasonable expectation doctrines, both of which are general rules of contract construction not specific to the insurance industry.” Meester v. IASD Health Servs. Corp., 963 F.2d 194, 197 (8th Cir. 1992). Because an ERISA plan must be “written in a manner calculated to be understood by the average plan participant,” 29 U.S.C. § 1022(a), we accord policy terms their ordinary, plain meaning. See Knowlton v. Anheuser-Busch Cos. Pension Plan, 849 F.3d 422, 429 (8th Cir. 2017); Kitterman v. Coventry Health Care of Iowa, Inc., 632 F.3d 445, 448 (8th Cir. 2011). “Recourse to the ordinary, dictionary definition of words is not only reasonable, but may be necessary.” Khoury v. Grp. Health Plan, Inc., 615 F.3d 946, 955 (8th Cir. 2010) (quotation omitted).

We review a plan administrator’s decision under the same standard of review as the district court. See Jessup v. Alcoa, Inc., 481 F.3d 1004, 1006 (8th Cir. 2007). Assuming without deciding that the appropriate standard is de novo review of the 2012 policy’s “private-duty nursing” exclusion, we agree with the district court that the Spizmans’ claim for round-the-clock in-home nursing care, the only claim asserted in Count I, fell within the plain language of the “private-duty nursing” exclusion. Accord Krauss v. Oxford Health Plans, Inc., 418 F.Supp.2d 416, 433 (S.D.N.Y. 2005) (“private or special duty” nursing exclusion barred reimbursement for “constant care solely” to insured), aff'd, 517 F.3d 614, 629 (2d Cir. 2008). Thus, the district court properly dismissed Count I for failure to state a claim, whether or not the 2013 policy reduced this coverage.

B. In Count II, the Spizmans alleged that the 2013 policy, if applicable, also covered their claim for round-the-clock in-home nursing services. Blue Cross ruled that this claim was barred by the exclusion of “extended hours skilled nursing care, also referred to as private-duty nursing care.” The Spizmans assert their claim was within the coverage for “intermittent skilled nursing care.” They argue that the definition of that term — a visit by a registered or licensed practical nurse of up to four hours duration — did not include the words “per day,” and therefore they were allowed to stack multiple four-hour visits in a single day to meet Raleigh’s round-the-clock in-home nursing needs. The district court rejected this contention, concluding that Blue Cross did not abuse its discretion in interpreting the 2013 policy provisions covering “intermittent skilled nursing care” and excluding “extended hours skilled nursing care.”

When an ERISA plan grants discretionary authority to make benefit determinations, the administrator’s interpretation of the plan is subject to abuse-of-discretion review. Ingram v. Terminal R.R. Ass’n of St. Louis Pension Plan for Non-schedule Emps., 812 F.3d 628, 630-31 (8th Cir. 2016). The Spizmans concede that the 2013 policy expressly granted Blue Cross discretionary authority. But they argue the district court erred in reviewing Blue Cross’s adverse decision for abuse of discretion because “a palpable conflict of interest or a serious procedural irregularity existed, which ... caused a serious breach of the [claim] administrator’s fiduciary duty.” Id. at 631 (quotation omitted). While Blue Cross did have a financial conflict of interest as both payor and plan administrator, the Supreme Court clarified in Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), that this conflict does not change the abuse-of-discretion standard of review. Rather, “reviewing judge[s] ... take account of the conflict when determining whether the [claims administrator], substantively or procedurally, has abused [its] discretion.” Id. at 115, 128 S.Ct. 2343. The district court properly gave “some weight” to this conflict of interest in reviewing Blue Cross’s decision. Spizman, 2015 WL 4569249, at *6. As in Johnson v. United of Omaha Life Ins. Co., the procedural irregularities alleged by the Spizmans do not “trigger [de novo review based on] a total lack of faith in the integrity of the decision making process.” 775 F.3d 983, 988 (8th Cir. 2014) (quotation omitted).

When a plan administrator’s decision is reviewed for abuse of discretion, “the administrator’s interpretation of uncertain terms in a plan will not be disturbed if reasonable.” King v. Hartford Life & Acc. Ins. Co., 414 F.3d 994, 999 (8th Cir. 2005) (en banc) (quotation omitted). “Where a plan fiduciary offered a reasonable interpretation of a disputed plan provision, courts may not replace it with an interpretation of their own — and therefore cannot disturb as an ‘abuse of discretion’ the challenged benefits determination.” Ingram, 812 F.3d at 634 (quotation omitted).

The Spizmans assert that the 2013 policy should be construed as covering multiple nursing care visits each day because the policy did not define intermittent care as limited to one four-hour visit. But this interpretation would be unreasonable because, as the district court noted, stacking multiple four-hour nursing visits would nullify the policy exclusion of “extended hours skilled nursing care,” which the policy defined as care that is “continuous.” Spizman, 2015 WL 4569249, at *7; see King, 414 F.3d at 1004-05. Thus, even if Blue Cross’s decision is reviewed de novo, rather than for abuse of discretion, we agree with the district court that denial of the Count II claim for round-the-clock in-home nursing care must be upheld.

For these reasons, we affirm the dismissal of Count I and Count II of the First Amended Complaint. The Spizmans argue that the district court acted prematurely in dismissing these claims without factual development of their allegations that a Blue Cross claims representative told the Spiz-mans that the 2013 policy would cover Raleigh’s home health care; that Blue Cross granted some claims, denied some claims, and held others in process as part of a ploy to fraudulently bar external review of its claims decisions; and that Blue Cross unreasonably delayed deciding their internal appeals. These allegations might have been relevant to the claim in Count III to recover benefits due under the ERISA plan, or the claim in Count IV for breach of fiduciary duty. But the Spizmans elected to dismiss those claims with prejudice. As the claims in Count I and Count II for round-the-clock in-home nursing services were contrary to the plain meaning of the private-duty nursing exclusions in the 2012 and 2013 policies, those Counts were properly dismissed.

III. Count VI.

In Count VI, a claim for equitable estoppel, the Spizmans alleged that they were entitled to equitable relief under 29 U.S.C. § 1132(a)(3) that grants the home health care benefits Blue Cross’s agents promised would be paid under ambiguous policy terms. The district court dismissed Count VI because the policy plainly excluded “extended hours skilled nursing care,” and the Spizmans “may not use an estoppel theory to enlarge benefits under a written plan.” Spizman, 2015 WL 4569249, at *11. The principle is sound. See Neumann v. AT&T Commnc’ns, Inc., 376 F.3d 773, 784 (8th Cir. 2004); Fink v. Union Cent. Life Ins. Co., 94 F.3d 489, 492 (8th Cir. 1996). We conclude it was correctly applied.

As pleaded in Count I and Count II, the Spizmans claimed coverage for round-the-clock in-home skilled nursing care that the policy excluded. Nothing in Count VI suggested that any other level of benefits was being claimed in their estoppel theory. Thus, the district court soundly reasoned that Count VI sought an improper enlargement of plan benefits. The court declined to dismiss Count IV, a broad claim for equitable relief under § 1132(a)(3) for Blue Cross’s alleged breaches of fiduciary duty, because “the instant dispute is still at the motion to dismiss stage.” Spizman, 2015 WL 4569249, at *10. Thus, the only § 1132(a)(3) claim the court dismissed on the pleadings was one for benefits excluded by the plain meaning of the terms of the plan. To the extent the Spizmans intended to assert an equitable estoppel claim for some lesser level of benefits, they voluntarily relinquished that claim by dismissing Count IV with prejudice.

For these reasons, the judgment of the district court is affirmed.

      . The Honorable Michael J. Davis, United States District Judge for the District of Minnesota, adopting the Report and Recommendation of the Honorable Tony N. Leung, United States Magistrate Judge for the District of Minnesota.

      . The Spizmans’ alternative argument that they are entitled to coverage under the 2012 policy's benefit substitution provision is without merit. The policy provides that "benefit substitution cannot be used to allow coverage for services or supplies excluded by the Plan.” The policy excluded their claim for round-the-clock in-home nursing care, so benefit substitution did not apply.


author: BENTON, Circuit Judge.

text:
    Kimberly BOUDE, Plaintiff-Appellant v. CITY OF RAYMORE, MISSOURI; Joseph German, Police Officer; Raymore Missouri Police Department, Defendants Michael W. Heady, Police Officer, Defendant-Appellee
    No. 16-1183
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 14, 2016
    Filed: May 5, 2017

      Andrew B. Protzman, Protzman Law Firm, LLC, Kansas City, MO, argued (Christopher M. Sorenson, on the brief), for appellant.
    David S Baker, Fisher, Paterson, Sayler & Smith, LLP, Kansas City, MO, argued, for appellee.
    Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

   BENTON, Circuit Judge.

Kimberly K. Boude sued Officer Michael W. Heady of the Raymore, Missouri, Police Department for excessive use of force under 42 U.S.C. § 1983, as well as common law negligence and battery. The district court granted summary judgment to Heady based on qualified and official immunity. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Boude was addicted to huffing aerosol spray cans, which intoxicated her. On March 17, 2012, Raymore Police Officer Joseph German was dispatched to “check on a person in their vehicle” in the parking lot of a Sonic restaurant. Arriving, German found Boude behind the wheel of her vehicle, an SUV. Seeing she was “not completely coherent,” he summoned medical assistance.

The next day, Boude huffed two times and then drove to the Sonic restaurant. On patrol, German and Heady heard a radio dispatch about a motorist potentially in need of assistance. The dispatcher’s description matched Boude’s SUV from the previous day. Heady knew about German’s encounter with Boude the day before, and began to search for the car. Within minutes, he saw a SUV matching the description. Stepping out of his patrol car, Heady motioned and told Boude to stop her SUV. Boude stopped. Heady approached the open driver-side window. German arrived within one minute of the stop. His dash camera recorded the events. •

Heady asked Boude how much .she huffed that day. She said “not much.” Heady told her to turn the car off. Boude reached for the gearshift of the SUV. As she reached, the car’s brake lights turned on. Heady said “no, no, no,” reached through the front window, turned off the ignition, and took the keys. Heady told Boude to step out of the car. She failed to comply. Heady physically removed her, placed her on the ground, and handcuffed her. Boude later pled guilty to driving while intoxicated, a misdemeanor. She claims injures from the arrest, requiring spinal surgery and physical therapy.

Boude sued Heady for excessive force under 42 U.S.C. § 1983. She also alleged common law negligence and battery. The district court granted summary judgment to Heady based on qualified and official immunity. Boude appeals.

II.

This court reviews de novo a grant of qualified immunity. See Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008). While this court views the facts most favorably to Boude, it need not adopt her factual allegations where a video “blatantly contradices]” her version of events. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

Qualified immunity is a basis to dismiss a claim against a public employee if the alleged conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” See Hayek v. City of St. Paul, 488 F.3d 1049, 1054 (8th Cir. 2007) (quotation omitted). The qualified immunity analysis considers two questions: First, “taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” See Harris, 550 U.S. at 377, 127 S.Ct. 1769 (quotation omitted). Second, whether the right at issue was “clearly established in light of the specific context of the case.” See id. (quotation omitted). Courts may decide “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

Boude contends that Heady violated her Fourth Amendment “right to be free from excessive force in the context of an arrest.” See Shannon v. Koehler, 616 F.3d 855, 859 (8th Cir. 2010) (citation omitted). Under the Fourth Amendment, police officers are liable for excessive force that is not objectively reasonable under the circumstances. See Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009). Officers are “justified in using force to remove a driver, whom they believed to be impaired, from his vehicle after he refused to comply with their order to exit it.” Schoettle v. Jefferson Cty., 788 F.3d 855, 860 (8th Cir. 2015). Accord Wertish v. Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006) (holding that when a driver failed to comply with an officer’s orders to get out of the vehicle, it was objectively reasonable for the officer to pull the driver from the truck and handcuff him).

Here, it was objectively reasonable for Heady to believe that Boude’s reach for the gearshift was an attempt to shift the ear to drive and to flee. Heady knew about Boude’s huffing the day before, so he had reason to believe she was intoxicated and a potential threat to public safety. See Schoettle, 788 F.3d at 860 (citation omitted) (noting the “potential threat to public safety” when an impaired driver is in command of a vehicle). When the brake lights to the SUV turned on — consistent with shifting gears — Heady said “no, no, no,” reached into the car, and turned off the ignition. After Boude refused to comply with Heady’s order to exit, he was “justified in using force to remove [Boude], whom [Heady] believed to be impaired.” See id.

True, as the district court found, the dash-cam video does not “blatantly contradict” Boude’s allegation that she “reached for the gear shift to make sure her vehicle was in park before she made any move to comply with Defendant’s order that she turn the vehicle off.” See Harris, 550 U.S. at 380, 127 S.Ct. 1769. However, qualified immunity does not depend on whether Boude was in fact attempting to flee when she reached for the gearshift; rather, the key is Heady’s objectively reasonable beliefs under the circumstances. See, e.g., Brown, 574 F.3d at 496. See also Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (explaining objective reasonableness considers that “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation”). Here, assuming Boude’s reach for the gearshift was innocent, Heady could still have an objectively reasonable belief that her movement was a non-compliant attempt to shift the car to drive and to flee. See Carpenter v. Gage, 686 F.3d 644, 650 (8th Cir. 2012) (“Even if Carpenter’s motive was innocent, the deputies on the scene reasonably could have interpreted Carpenter’s actions as resistance and responded with an amount of force that was reasonable to effect the arrest.”).

Boude contends that Heady’s use of force was objectively unreasonable because when he removed her from the SUV, he had already taken’ the keys, eliminating any risk she might flee. Even after the car was off, it was reasonable for Heady to believe that Boude — intoxicated, and moments earlier non-compliant with his order to turn off the car — would continue to be non-compliant or attempt to flee on foot. See Schoettle, 788 F.3d at 860 (explaining that a driver “posed a threat to himself, the officers and the general public, even after [the officer] turned off [defendant’s] vehicle”). Officers are “justified in using force to remove a driver, whom they believed to be impaired, from his vehicle after he refused to comply with their order to exit.” Id. (emphasis added). Moments “after [Boude] refused to comply” with Heady’s order to turn off the car, he was “justified in using force to remove” her. See id.

Boude relies on Brovm, where this court found a fact dispute whether an officer held an objectively reasonable belief that force was necessary under the circumstances. Brown, 574 F.3d at 496. There, the suspect’s husband had been pulled over for allegedly driving under the influence. Id. at 492. After he was handcuffed, the suspect — in the front passenger seat— became frightened and dialed 911. Id. An officer told her to hang up. She refused. The officer then entered the car and tased her. Id. Reversing a grant of qualified immunity, this court said, “Whether [the officer] reasonably interpreted her refusal as a realistic threat to his personal safety or whether it constituted nothing more than an affront to his command authority is a matter for a jury to decide.” Id. at 497.

The facts here differ from Brown in two critical ways. First, the suspect in Brown was in the passenger seat; Boude was in the driver seat. See Schoettle, 788 F.3d at 860 (citation omitted) (explaining there is a “potential threat to public safety [when] an impaired driver [is] in command” of a car (emphasis added)). Second, the suspect in Brown did not make any movement that could be reasonably interpreted as an attempt to flee. See Brown, 574 F.3d at 497 (finding that the suspect was “not actively resisting arrest or attempting to flee”). Here, it was objectively reasonable for Heady to believe that, when Boude — a suspected intoxicated driver — reached for the gearshift after he told her to exit the SUV, she was attempting to flee.

Because Heady’s use of force was objectively reasonable under the circumstances, he did not violate Boude’s Fourth Amendment right to be free from excessive force. See id. at 496. This court need not address the “clearly established” prong of the qualified immunity analysis. See Harris, 550 U.S. at 377, 127 S.Ct. 1769. Heady is entitled to qualified immunity and summary judgment on the excessive-use-of-force claim.

III.

Heady invoked official immunity on Boude’s negligence and battery claims. This court reviews de novo a grant of summary judgment based on official immunity. See Murray v. Leyshock, 915 F.2d 1196, 1199 (8th Cir. 1990). Official immunity “protects public employees from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.” Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008). “[A] police officer has the benefit of official immunity.” Fonseca v. Collins, 884 S.W.2d 63, 66 (Mo. App. 1994). Discretionary acts require “the exercise of reason in the adaptation of means to an end and discretion in determining how or whether an act should be done or course pursued.” Id. (citation omitted). The decision to arrest someone is a discretionary act. Blue v. Harrah’s N. Kansas City, 170 S.W.3d 466, 479 (Mo. App. 2005). An “officer’s decision to use force in the performance of his duties is discretionary.” Davis v. White, 794 F.3d 1008, 1013 (8th Cir. 2015) (applying Missouri law).

Boude argues that Heady forfeits his official immunity because he acted in bad faith. Official immunity is lost if the official “acted in bad faith or with malice, which ordinarily requires actual intent to cause injury.” Austell v. Sprenger, 690 F.3d 929, 938 (8th Cir. 2012) (quotation omitted). “A defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.” State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 447 (Mo. banc 1986) (quotation omitted). Bad faith means “dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive, or ill will partaking of the nature of fraud.” Id. (quotation omitted).

Boude believes that her bad faith allegation survives summary judgment because “[w]hether or not an officer acted maliciously or willfully is usually a question of fact to be resolved by the jury.” See Brown, 574 F.3d at 496. Brown applied Minnesota law. In Missouri, a bad-faith allegation survives summary judgment if a plaintiff states “facts from which it could reasonably be inferred that [defendant] acted in bad faith or from an improper or wrongful motive.” See Adolf, 706 S.W.2d at 447-48. Boude’s conclusory allegations that Heady acted in bad faith are insufficient to defeat summary judgment. See Quinn v. St. Louis Cty., 653 F.3d 745, 752 (8th Cir. 2011) (finding conclusory statements insufficient to establish a material question of fact). Heady is entitled to official immunity on Boude’s negligence and battery claims.

* * * * * * *

The judgment is affirmed.

      . The Honorable Briaií C.. Wimes, United States District Judge for the Western District of Missouri.