The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7096
SAMMY USSERY,
Plaintiff - Appellee,
v.
SGT. MANSFIELD; JAMES DUNLOW; TIMOTHY RUFFIN,
Defendants - Appellants,
and
DUSTIN WILKINS; SHELTON HARDISON; STACY HOGGARD; LILLIAN
GILLIAM; SHERI WILLIAMS,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-ct-03124-BO)
Argued: April 8, 2015 Decided: May 19, 2015
Before MOTZ and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Gregory and Senior Judge Davis joined.
ARGUED: Kimberly D. Grande, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants. David
Alexander Strauss, NORTH CAROLINA PRISONER LEGAL SERVICES, INC.,
Raleigh, North Carolina, for Appellee. ON BRIEF: Roy Cooper,
North Carolina Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants.
2
DIANA GRIBBON MOTZ, Circuit Judge:
Sammy Ussery brings this action pursuant to 42 U.S.C.
§ 1983, maintaining that a team of correctional officers
employed excessive force when they forcibly extracted him from
his prison cell. The district court denied the officers’ motion
for summary judgment on the basis of qualified immunity. The
officers appeal and, for the reasons that follow, we affirm.
I.
The cell extraction at the center of this case occurred on
July 9, 2008. At that time, Ussery was incarcerated at Bertie
Correctional Institution in Windsor, North Carolina, where the
appellants -- Sgt. David Mansfield and Officers James Dunlow and
Timothy Ruffin -- were employed. The parties agree that the
correctional officers, supervised by Sgt. Mansfield, forcibly
removed Ussery from his cell, but they dispute many facts
involved in the cell extraction. We consider the facts in the
light most favorable to Ussery, the non-movant. See PBM
Products, LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir.
2011).
Ussery contends that he and Sgt. Mansfield had “an
antagonistic relationship,” in part because of racial tension.
He maintains that correctional officers had searched or “tossed”
his cell numerous times in the days immediately preceding the
3
extraction, but never found any weapons or other contraband. On
the morning of July 9, Sgt. Mansfield approached Ussery’s cell
and ordered him to exit. Ussery, fearing that his cell would be
ransacked, refused to do so. In response, Sgt. Mansfield shot a
burst of pepper spray into Ussery’s cell. Ussery still would
not leave the cell.
Sgt. Mansfield then assembled an extraction team of five
correctional officers, including Officers Dunlow and Ruffin. A
sixth officer videotaped the extraction, pursuant to prison
policy. Sgt. Mansfield told the extraction team that Ussery had
a weapon and had threatened to harm anyone who entered his cell.
Ussery maintains he made no such threat, and apparently, no
weapon was ever found.
Sgt. Mansfield ordered Ussery’s cell unlocked, and the
extraction team entered and restrained Ussery on the floor.
According to Ussery, members of the extraction team then beat
him repeatedly in the head and face with batons, punches, and
kicks; he maintains that Sgt. Mansfield “kicked and stomped” on
him. Eventually the extraction team cuffed Ussery’s hands
behind his back, shackled his feet together, and carried him out
of his cell –- holding him by the cuffs and shackles in a
position Ussery characterizes as “hogtied.” At least one
witness reported seeing blood on the floor, marking the path
from Ussery’s cell to the holding cage, to which the officers
4
took him. In the holding cage, Ussery was belligerent and
initially resisted efforts to clean him up.
The video of this incident depicts events consistent with
Ussery’s account of the incident in some respects. As the
district court noted, the viewer of the video can see that there
is “a disturbance” in Ussery’s cell during the extraction; that
“someone begins to punch Ussery, but it is unclear which guard
is doing so”; that “[a]t one point, the movement of Mansfield’s
body suggests that Mansfield may be kicking Ussery”; that Ussery
is “cuffed or shackled” and “carried with his body facing toward
the ground . . . by the shackles”; that he appears “bloody and
[has] facial injuries” after the extraction; and that he is
“verbally aggressive in the holding [cage].” But as the court
also noted, a viewer cannot discern additional details about the
extraction because Sgt. Mansfield stood in front of the camera,
“obstructi[ng]” the view of the cell, during most of the
extraction.
Later in the day of the extraction, officers transported
Ussery to Bertie County Memorial Hospital for emergency medical
treatment. There, doctors prescribed Ussery morphine for his
pain and used antibiotic ointment and wound adhesives to treat
his contusions. Ussery maintains that “[a]s a direct and
proximate result” of the officers’ beating, he “suffered severe
lacerations above his right eye and behind his left ear . . .
5
[and] extensive bruising of his head, neck, face, chest, and
hands.” He further maintains that “[m]edical records indicate
that as a result of his injuries, [he] suffered increased bi-
lateral hearing loss, neck pain, loss of vision in his right
eye, chronic swelling and loss of feeling in his hands and knee,
and recurring migraines,” causing him “physical and emotional
pain and suffering, and disability.”
About five months after the extraction, the North Carolina
Department of Corrections requested that the State Bureau of
Investigation conduct an inquiry into the possible
“inappropriate use of force by correctional staff during [this]
cell extraction.” The investigators were ultimately not able to
reach a definitive determination as to “whether excessive force
was used,” but noted that the behavior of the correctional
officers on the videotape “appears too aggressive for the
situation and would be excessive force.” The district attorney
involved in the state’s investigation of this incident wrote
that Sgt. Mansfield’s apparent blocking of the cell door during
the video was “disturbing” and “precluded [the state] from
investigating this matter fully.” She concluded that “[b]ecause
of the position of the camera operator, this has become a
situation where it is the inmate’s version versus the officers’
version of events.”
6
Acting pro se, Ussery filed this action, advancing Eighth
Amendment excessive force and failure-to-protect claims. The
complaint survived a frivolity review pursuant to 28 U.S.C.
§ 1915. Thereafter, the North Carolina Prisoner Legal Services
undertook representation of Ussery in this matter and filed an
amended complaint.
In response to Ussery’s amended complaint, the officers
admit that they forcibly extracted him from his cell when pepper
spray proved insufficient to compel him to exit; that he was
“escorted” out of his cell by the extraction team; and that he
received medical treatment following the extraction. The
officers, however, deny kicking or punching Ussery during the
extraction. They contend that he suffered nothing more than de
minimis injuries. To support that contention, they offer the
affidavit of a doctor long employed by the North Carolina
Division of Prisons. He opined, based on his examination of the
prison’s records, (not an examination of Ussery himself), that
Ussery “incurred minor injuries including abrasions, contusions,
and lacerations,” which “healed completely without any lasting
ill effects.” On the basis of this affidavit, the officers
moved for summary judgment, asserting entitlement to qualified
immunity. Ussery opposed the motion –- relying on his account
of his injuries, statements from some officers and inmates, his
7
medical records, the video, and the report of the state Bureau
of Investigation.
The district court granted the officers’ motion as to the
failure-to-protect claim, but denied the motion as to the
excessive force claim against Sgt. Mansfield and Officers Dunlow
and Ruffin. 1 The officers timely noted this appeal.
II.
The Supreme Court has explained that “the qualified-
immunity defense shields government agents from liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Behrens v. Pelletier, 516
U.S. 299, 305 (1996) (internal quotation marks and alterations
omitted). As the parties agree, the law clearly established at
the time of the extraction governs the entitlement to qualified
immunity here. Further, they agree that Norman v. Taylor, 25
F.3d 1259 (4th Cir. 1994) (en banc), provides the legal
framework for determination of that question.
1
Ussery’s complaint also names as defendants several other
officers but he did not perfect service on them. The district
court therefore dismissed the complaint as to them. In
addition, the complaint alleges a state law negligence claim not
addressed by the parties in the summary judgment papers or
resolved by the district court.
8
In Norman, this court held that “absent the most
extraordinary circumstances, a plaintiff cannot prevail on an
Eighth Amendment excessive force claim if his injury is de
minimis.” Id. at 1263. The Supreme Court expressly abrogated
Norman in Wilkins v. Gaddy, 559 U.S. 34, 38-39 (2010). The
Court held in Wilkins that “[a]n inmate who is gratuitously
beaten by guards does not lose his ability to pursue an
excessive force claim merely because he has the good fortune to
escape without serious injury.” Id. at 38. We have
subsequently concluded, however, that where the alleged use of
force occurred prior to Wilkins, a defendant’s entitlement to
qualified immunity turns on whether that force “was objectively
reasonable in view of the clearly established law at the time of
the alleged event” -- i.e., the law as set forth in Norman. See
Hill v. Crum, 727 F.3d 312, 321, 322 (4th Cir. 2013).
To prevail, then, an inmate like Ussery, seeking relief for
excessive force deployed before the issuance of Wilkins in 2010,
must establish either that he sustained more than de minimis
injuries or that the defendants’ use of force was “of a sort
repugnant to the conscience of mankind and thus expressly
outside the de minimis force exception.” Norman, 25 F.3d at
1263 n.4 (internal quotation marks and citation omitted). With
this standard in mind, we turn to the case at hand.
9
III.
Before reaching the merits of Ussery’s excessive force
claim, we must first address our jurisdiction over this
interlocutory appeal.
In Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), the
Supreme Court held that “a district court’s denial of a claim of
qualified immunity, to the extent that it turns on an issue of
law, is an appealable ‘final decision’ within the meaning of
28 U.S.C. § 1291 notwithstanding the absence of a final
judgment.”
The Court clarified the scope of interlocutory review of a
denial of qualified immunity in Johnson v. Jones, 515 U.S. 304
(1995). There, a unanimous Court held that when a district
court denies summary judgment to a defendant seeking qualified
immunity “only” on the basis of “‘evidence sufficiency,’ i.e.,
which facts a party may, or may not, be able to prove at trial,”
the order does not provide the basis for an interlocutory
appeal. Id. at 313. See also Iko v. Shreve, 535 F.3d 225, 234
(4th Cir. 2008) (separating “purely legal questions relating to
qualified immunity that can and should be resolved at this
[summary judgment] stage in the litigation” from “the district
court’s assessment of whether genuine issues of material fact
make summary judgment inappropriate,” which is not an appealable
final order).
10
In resolving the officers’ contention that qualified
immunity entitles them to summary judgment on Ussery’s excessive
force claim, the district court first determined that “[t]aking
the facts in the light most favorable to plaintiff, there was
some injury to plaintiff. The degree of injury suffered is at
most unclear within the record before the court.” The court
continued that, “regardless of the extent of the injury, on the
record before the court . . . there remains a question of fact
as to whether there are extraordinary circumstances so repugnant
to the conscience of mankind that even in spite of de minimis
injuries plaintiff could prevail on his excessive force claim.”
(internal quotation marks and citation omitted). The district
court concluded that “[b]ased on the record before [it],
defendants are not entitled to qualified immunity.”
Johnson prohibits us from reviewing on interlocutory appeal
the district court’s conclusion that the record does not
definitively indicate the extent of Ussery’s injuries. Thus we
cannot and do not review the district court’s assessment of the
evidence. However, in denying summary judgment, the district
court necessarily held that Ussery could satisfy the Norman
standard. To be sure, the court did not expressly state that
Ussery could establish a violation of clearly established law
under Norman. But to deny the officers’ motion for summary
judgment, the court had to reach that conclusion. We
11
undoubtedly have jurisdiction to review that purely legal
conclusion. See Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015)
(“[O]n appeal from the denial of summary judgment on the basis
of qualified immunity, we merely decide whether on the facts
assumed by the district court for summary judgment purposes, the
defendant was entitled to qualified immunity.”). 2 Indeed, while
Ussery contends in his brief that we lacked any jurisdiction
over this appeal, at oral argument, he conceded that we do have
jurisdiction to resolve this limited question.
Our jurisdiction in cases such as this is circumscribed but
critical. For the Supreme Court has made plain that qualified
immunity “is an immunity from suit rather than a mere defense to
liability” and “is effectively lost if a case is erroneously
2
We note that an order denying summary judgment on the
basis of qualified immunity would be entirely unreviewable if
the defendant officers conceded that Ussery’s version of the
facts would establish that the officers violated clearly
established law. For example, in Culosi v. Bullock, the parties
agreed that the qualified immunity inquiry turned on a factual
question: was the shooting death of the plaintiff the result of
an intentional act by a police officer, or an accidental
discharge of the officer’s gun? 596 F.3d 195, 200 (4th Cir.
2010). The defendants did not argue that even if the shooting
was intentional, they would nonetheless be entitled to qualified
immunity -- so no purely legal dispute remained between the
parties. Rather, “the version of facts ultimately accepted by
the fact finder w[ould] dictate the outcome of the
constitutional inquiry.” Id. at 200 n.6 (emphasis in original
omitted). Accordingly, we lacked jurisdiction over that appeal.
By contrast, the officers in this case challenge both legal and
factual conclusions of the district court, and our interlocutory
jurisdiction permits review of the legal conclusions.
12
permitted to go to trial.” Mitchell, 472 U.S. at 526 (emphasis
in original).
IV.
We thus turn to the sole question over which we have
jurisdiction: whether the district court properly concluded
that the officers were not entitled to summary judgment under
Norman.
The officers contend that Ussery suffered only de minimis
injuries and so cannot satisfy the requirements for an excessive
force claim under Norman. Blue Br. 8, 16-21. We disagree.
During the decade when Norman was good law, we never articulated
a precise definition of what constitutes a de minimis injury.
Nevertheless, our opinions from that period clearly illustrate
that whether a plaintiff has satisfied the Norman standard
depends on the particular facts of his case.
Ussery maintains that the officers caused “severe
lacerations,” “extensive bruising,” “increased bi-lateral
hearing loss,” “loss of vision in his right eye,” “chronic
swelling and loss of feeling,” “recurring migraines,” and
“physical and emotional pain and suffering” -- all of which
resulted in “last[ing] physical and emotional damage.” Many of
these injuries could have an enduring impact on health and well-
being. These are the sort of injuries that may affect mobility,
13
sensory capabilities, emotional stability, and other daily
functions for an extended period of time. 3 And while we have
held that “temporary swelling and irritation” constitute only de
minimis injury under Norman, see Taylor v. McDuffie, 155 F.3d
479, 484 (4th Cir. 1998), overruled in part by Wilkins, 559 U.S.
34 (2010), we have also recognized that to satisfy Norman an
inmate “need not show that . . . force caused an ‘extreme
deprivation’ or ‘serious’ or ‘significant’ pain or injury.”
Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996) (quoting
Hudson v. McMillian, 503 U.S. 1, 9 (1992)).
Moreover, on numerous occasions, applying the Norman
standard, we have concluded that injuries comparable to –- and
arguably less severe than -- those Ussery maintains he suffered
were not de minimis. See, e.g., Orem v. Rephann, 523 F.3d 442,
448 (4th Cir. 2008) (holding that just two uses of a taser –-
even if only “for a few seconds” at a time –- caused more than
de minimis injury when the plaintiff “experience[d] electric
3
Arguing to the contrary, the officers attempt to ignore
Ussery’s detailed account of his injuries, the medical records
and witness statements he offered, and the video showing him
during and after the extraction. The officers rely instead on
the affidavit of a longtime prison physician who, without
examination of Ussery, opined that his injuries were not
serious. A factfinder may or may not ultimately agree with that
assessment. But the district court concluded that “the degree
of injury suffered” by Ussery was “unclear” on the evidence
before it. As we have explained above, we lack jurisdiction to
resolve on interlocutory appeal this issue of “evidence
sufficiency.” Johnson, 515 U.S. at 313.
14
shock, pain, and developed a scar”); Young v. Prince George’s
Cnty., 355 F.3d 751, 758 n.3 (4th Cir. 2004) (holding that “a
contusion, cut to his lips, bruises, lesions to his wrist, and a
strained neck and back” exceed the de minimis threshold); Robles
v. Prince George’s Cnty., 302 F.3d 262, 270 (4th Cir. 2002)
(holding that where law enforcement officers restrained and
abandoned an arrestee for ten minutes, causing him to “fe[el]
frightened, vulnerable, and humiliated when left alone and
immobile in the dark parking lot,” such that “in the months
following the incident he had trouble sleeping and was scared to
leave his home, . . . [t]he resulting injury was more than de
minimis”).
Finally, we note the telling fact that the North Carolina
Department of Corrections initiated an investigation into the
cell extraction. At the very least, this investigation
indicates that the state itself regarded the cell extraction as
cause for alarm that might have resulted in more than de minimis
injuries. The Department would hardly have launched such an
investigation if there were no dispute that “the injury
resulting from that force was not excessive.” Stanley v.
Hejirika, 134 F.3d 629, 637 (4th Cir. 1998).
Accordingly, given our obligation to take the facts in the
light most favorable to Ussery, we must conclude that the
15
district court did not err in denying the officers’ summary
judgment on Ussery’s excessive force claim. 4
V.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
4
Having concluded that Ussery has described injuries
sufficient to satisfy Norman’s de minimis threshold, we need not
reach the question whether, in the alternative, Ussery has
presented facts placing this force incident within the ambit of
the “extraordinary circumstances” exception to the de minimis
requirement in Norman.
16