holding that even pretrial detainees, though, “must allege that the official used more than a de minimis amount of force or that the use of force was repugnant to the conscience of mankind.”
How later courts described this case
- holding that even pretrial detainees, though, “must allege that the official used more than a de minimis amount of force or that the use of force was repugnant to the conscience of mankind.”
- “[T]he act of throwing [a 4 Here, the defendants concede that Locke’s resistance was merely passive, but in another case we might find that it was active. See Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015
Written by the judges who cited it.
The opinion
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-1127
___________________________
Austin J. Webster,
lllllllllllllllllllllPlaintiff - Appellant,
v.
Saint Louis County; Tamara S. Lemke, Program Facilitator, in her individual and
official capacities,
lllllllllllllllllllllDefendants - Appellees.
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: October 22, 2024
Filed: April 24, 2025
____________
Before COLLOTON, Chief Judge, GRUENDER and KOBES, Circuit Judges.
____________
COLLOTON, Chief Judge.
Austin Webster, a pre-trial detainee, sued Tamara Lemke under 42 U.S.C.
§ 1983, alleging that she used excessive force against him in violation of the
Fourteenth Amendment. Webster alleged that Lemke hit him in the face with a
volleyball and caused bruising. The district court* dismissed the complaint for failure
to state a claim and concluded alternatively that Lemke was entitled to qualified
immunity. Webster appeals, and we affirm.
Webster was detained awaiting trial in the St. Louis County Jail. On March 5,
2021, he was in the recreation room preparing to play volleyball. As he waited for
the activity to begin, Webster talked to another detainee. Lemke, a program
facilitator at the jail, noticed Webster talking, yelled at him to “shut up,” and threw
a volleyball at Webster’s head. The ball struck Webster in the face and caused
bruising. Webster visited the jail nurse and received over-the-counter pain
medication.
Webster sued Lemke, alleging an excessive use of force in violation of the Due
Process Clause of the Fourteenth Amendment. The district court concluded that
Webster failed to state a claim on which relief could be granted, because he did not
allege that Lemke used greater-than-de minimis force. In the alternative, the district
court concluded that Lemke was entitled to qualified immunity because her action did
not violate a clearly established right. Webster also sued Lemke and St. Louis
County for alleged battery under Minnesota common law, but the district court
declined to exercise supplemental jurisdiction over those claims and dismissed them
without prejudice. We review the district court’s ruling on the § 1983 claim de novo.
LeMay v. Mays, 18 F.4th 283, 286 (8th Cir. 2021).
A government official is entitled to qualified immunity from suit unless the
official’s conduct violated a clearly established right of which a reasonable official
would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To overcome
a claim of qualified immunity at the pleading stage, a plaintiff must allege facts
*
The Honorable Eric C. Tostrud, United States District Judge for the District
of Minnesota.
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plausibly showing (1) that the official violated a statutory or constitutional right and
(2) that the right was clearly established at the time of the challenged conduct.
LeMay, 18 F.4th at 287.
The Due Process Clause of the Fourteenth Amendment constrains the use of
force against a pretrial detainee. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015).
A violation occurs if an official purposely or knowingly uses force against a detainee
and the use of force is objectively unreasonable. Id. at 396-97. A use of force is
reasonable if it is rationally related to a legitimate, nonpunitive governmental purpose
and does not appear excessive in relation to that purpose. Id. at 398. Objective
reasonableness turns on the facts and circumstances of each particular case. Id. at
397.
As a threshold matter, however, a plaintiff must allege that the official used
more than a de minimis amount of force or that the use of force was repugnant to the
conscience of mankind. Jackson v. Buckman, 756 F.3d 1060, 1067-68 (8th Cir.
2014); cf. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). There is “a de minimis
level of imposition with which the Constitution is not concerned,” Bell v. Wolfish,
441 U.S. 520, 539 n.21 (1979) (internal quotation omitted), so “a de minimis quantum
of force is not actionable under the Due Process Clause.” Jackson, 756 F.3d at 1067;
see Westwater v. Church, 60 F.4th 1124, 1129 (8th Cir. 2023). Webster does not
argue that Lemke’s action was “repugnant to the conscience of mankind.”
Assuming, without deciding, that Webster adequately alleged that Lemke’s
conduct violated a constitutional right, Lemke is entitled to qualified immunity if the
right was not clearly established. To defeat a claim of qualified immunity, Webster
must show that it would have been clear to every reasonable officer that the force
involved in tossing a volleyball at a detainee in a manner sufficient to cause bruising
was more than de minimis.
-3-
To show a clearly established right, a plaintiff generally must identify a case
where an official acting under similar circumstances was found to have violated the
right in question. District of Columbia v. Wesby, 583 U.S. 48, 64 (2018); Boudoin
v. Harsson, 962 F.3d 1034, 1039 (8th Cir. 2020). The plaintiff may point to existing
circuit precedent that squarely governs the official’s conduct, a robust consensus of
persuasive authority on the issue, or a general constitutional rule that applies with
obvious clarity to the facts at issue. Boudoin, 962 F.3d at 1040.
We conclude that Lemke did not violate a clearly established right. The law
did not clearly establish that Lemke’s act of throwing a volleyball was a greater-than-
de minimis use of force that would give rise to a violation of the Constitution. Our
precedent established that more substantial uses of force—tasing a detainee, kicking
a detainee, deploying a flash-bang grenade, and shooting a detainee with a bean-bag
gun—are more than de minimis uses of force. Smith v. Conway County, 759 F.3d
853, 859 (8th Cir. 2014); Edwards v. Byrd, 750 F.3d 720, 731-32 (8th Cir. 2014). But
other decisions from this court held that throwing a cup of liquid or throwing keys at
an inmate were de minimis uses of force where the thrown object did not cause an
injury. Samuels v. Hawkins, 157 F.3d 557, 558 (8th Cir. 1998) (per curiam); White
v. Holmes, 21 F.3d 277, 281 (8th Cir. 1994). The First Circuit held that throwing a
radio belt at an inmate—“a single blow caused by a thrown object and resulting only
in a bloody-lip”—was “clearly” a de minimis use of force. Calabria v. Dubois, No.
93-1742, 1994 WL 209938, at *2 (1st Cir. May 24, 1994) (per curiam). A district
court in Connecticut ruled that throwing a bar of soap at an inmate and thereby
causing a cut lip was a de minimis use of force. Baltas v. Dones, No. 3:22-CV-38,
2022 WL 1239989, at *5, 11 (D. Conn. Apr. 27, 2022).
Although Webster was bruised by the volleyball, the act of throwing such a ball
is not so inherently dangerous that every reasonable officer should have anticipated
that her action was likely to cause injury. A reasonable officer could have believed
that tossing a volleyball was comparable to the de minimis acts of throwing keys,
-4-
liquid, soap, or a radio belt, and materially different from the more violent deeds of
kicking, tasing, or shooting a detainee. We therefore conclude that Lemke is entitled
to qualified immunity.
The judgment of the district court is affirmed.
______________________________
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