Inmate-plaintiff cannot sue officer who threw juice at him

The inmate sued a jailer under the Eighth Amendment, which prohibits cruel and inhuman treatment. The district court allowed this case to proceed to trial, but the correction officer took his case to the Court of Appeals, which says the CO gets qualified immunity and the case is over. 

The case is Mustafa v. Pelletier, a summary order issued on November 14. Here's what happened: plaintiff says that defendant, while delivering meals, placed a cup of juice on a fold-down tray that allows food to be passed through the cell door. The defendant deliberately catapulted the juice into plaintiff's face. You may think this case is a waste of time, but ask yourself, would you like it if someone thrust juice into your case? That is not the issue, though. The question is whether this was excessive force in violation of the Eighth Amendment.

All public defendants can invoke qualified immunity to avoid suit. This immunity attaches if no prior case was sufficiently similar to this one that the defendant was on notice that he was violating the Constitution. My guess is there is probably no case quite like this one, so that helps the defendant. The problem for plaintiff is that courts have held for decades that not every push or shove by a CO will violate the Eighth Amendment, and the plaintiff has to show the actions were wanton, or malicious. Federal judges are nervous about second-guessing CO decisions inside the jails, which remain dangerous places and require split-second judgments. The question is not whether the plaintiff suffered harm but whether the CO applied force maliciously or sadistically in order to cause harm. 

The Court of Appeals (Leval, Parker and Nardini) holds the CO gets qualified immunity, thereby reversing the district court's contrary order. The Court uses the trial court's words against it in dismissing the case:

As the district court recognized when considering whether Mustafa had alleged a constitutional violation in the first place, “there is a mix of authority” about whether the alleged conduct was de minimis “as a matter of law.” That conclusion should have been dispositive of the qualified immunity question, because where there is nothing more than a “mix of authority” in the case law as to whether alleged conduct might or might not violate the Constitution, it cannot be said that such conduct transgresses clearly established law. We agree with the district court that there is no governing case law indicating that the conduct alleged in this case, if proved, would violate the Eighth Amendment. Accordingly, Officer Pelletier was entitled to qualified immunity.

In other words, when the district court is not sure if the case law really supports the plaintiff in a constitutional claim, then qualified immunity must attach. Now, some cases allow the inmate to sue when a CO throws certain things at him such as in Hogan v. Fischer, 738 F.3d 509 (2d Cir. 2013), where the CO threw feces, vinegar and machine oil at the inmate, burning his eyes and causing physical injuries. But that is a far cry from throwing a cup of juice at the inmate. In a classic understatement, the Court says, "the indignity of being splashed with juice cannot be placed on the same level as being sprayed with a combination of human excrement and noxious chemicals."