UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7722
JAMES DENNEY,
Plaintiff - Appellee,
v.
MARK TUCKER; JONATHAN WIGFALL; TINA MAYBANK, each sued
individually,
Defendants – Appellants,
and
BERKELEY COUNTY; WAYNE DEWITT, Sheriff of Berkeley County,
in his official capacity and as an individual; DEPUTY 1;
DEPUTY 2, and various other Deputies John Does presently
unknown; JONATHAN MENZIE; CRYSTAL THOMPSON,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Richard M. Gergel, District Judge.
(3:10-cv-01383-RMG)
Argued: September 19, 2013 Decided: November 4, 2013
Before DUNCAN and THACKER, Circuit Judges, and Gina M. GROH,
United States District Judge for the Northern District of West
Virginia, sitting by designation.
Dismissed by unpublished per curiam opinion.
ARGUED: James Albert Stuckey, Jr., STUCKEY LAW OFFICES, LLC,
Charleston, South Carolina, for Appellants. Gregg Meyers, JEFF
ANDERSON & ASSOCIATES, St. Paul, Minnesota, for Appellee. ON
BRIEF: Alissa R. Collins, STUCKEY LAW OFFICES, LLC, Charleston,
South Carolina, for Appellants. J. Graham Sturgis, Jr., J.
GRAHAM STURGIS, JR. & ASSOCIATES, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
James Denney (“Denney” or “Appellee”) filed suit
pursuant to 42 U.S.C. § 1983, inter alia, against Berkeley
County Detention Center officials Private Mark Tucker, Private
First Class Jonathan Wigfall, and Sergeant Tina Maybank
(collectively, “Appellants”), alleging that Appellants failed to
protect him from imminent harm at the hands of other inmates, in
violation of the Eighth and Fourteenth Amendments to the United
States Constitution. Appellants filed a motion for summary
judgment based on qualified immunity, which the district court
denied.
We possess jurisdiction over a denial of qualified
immunity only to the extent the district court’s decision rests
on an issue of law. Because the qualified immunity
determination in this matter ultimately turns on unresolved
questions of fact, rather than resolution of a pure legal issue,
we do not possess jurisdiction over this appeal. Therefore, we
dismiss.
I.
Appellants challenge the denial of qualified immunity
on a motion for summary judgment; therefore, we review the facts
in the light most favorable to Denney, the non-moving party.
See Hensley v. Koller, 722 F.3d 177, 181 (4th Cir. 2013).
3
On September 29, 2008, Denney was arrested for
allegedly committing a Lewd Act Upon a Child Under Sixteen and
booked at the Berkeley County Detention Center (“jail”) as a
pretrial detainee. Appellants were on duty at the jail on that
date and, along with two other officers, were charged with
supervising over 300 inmates. At around 10 p.m., Maybank placed
Denney in Pod C-1, which was an overflow pod that included
violent pre-trial and post-conviction offenders, even though the
Minimum Standards for Local Detention Centers in South Carolina
require “separate management” for those accused of sex offenses.
See J.A. 276-77. 1 There were around 60 inmates in Pod C-1 but
beds for only 24 of them. 2
Before he was placed in Pod C-1 and while he was in
the holding cell, Denney reviewed his paperwork, which indicated
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
2
There is no dispute that Maybank knew the crime for which
Denney was arrested because she attended his bond hearing. See
J.A. 519. Maybank also admitted that due to “overcrowding” on
the night of September 29, 2008, there is “a possibility” that
there were people in Pod C-1 with “assaults in their
background,” and agreed Denney “might be the target of some
violence in the jail just by the nature of his charges.” Id. at
472-73. Maybank explained the jail attempted to keep violent
offenders separated from non-violent offenders and agreed that,
in theory, “the purpose of th[at] classification system is to
keep people with violent backgrounds away from people that might
be more exposed to being the targets of violence,” but she also
stated, “you can’t always do that.” Id. at 470-71, 475.
4
his identifying information, the charge of committing a Lewd Act
Upon a Child Under Sixteen, and the bond amount. Denney noticed
another inmate reading the paperwork over his shoulder. That
inmate then allegedly spread the word around Pod C-1 that Denney
was a “child rapist.” J.A. 115. Denney lied and said he was
arrested for being a felon in possession of a firearm.
Around 10:15 p.m., Denney called his parents and told
them he was “[s]cared to death to go to sleep” and “there will
probably be a fight here before the night’s over.” J.A. 264,
270. After 11 p.m., a bail-bondsman, Ernest Davis, phoned
Maybank and told her that Denney told his father he was in
danger. Maybank did not check on Denney, however, because she
believed Denney would be bonded out in the morning and would
spend only nine hours in the jail. She also explained that
Denney had not told her directly that he was in danger, and he
could have used the intercom in Pod C-1 to contact her if he
needed help.
Denney testified that, during the night, he was
repeatedly struck by the other inmates in Pod C-1 with a broom
handle, a pay phone handset, a urine-soaked towel, and a pair of
underwear loaded with feces. This conduct went unnoticed by
Appellants.
At some point before breakfast was served at 4 a.m.,
an inmate began soliciting other inmates to convene a kangaroo
5
court with a “judge [and] jury” to “tr[y]” Denney on the charge
against him. J.A. 654. The inmates told Denney they were going
to beat him when the opportunity presented itself. Denney
testified, “I knew what was coming . . . . They told me when
the lights went out I would get beat.” Id. at 121.
When breakfast was served, Denney said he did not want
breakfast, but two of the inmates told him to get in line and
stand between them. While in the breakfast line, Denney told
Tucker he was “scared”:
I told [Tucker] I couldn’t go in [the pod]. He asked
me why. I said, [“]because I’m terrified for my life
to go back in there because they’re threatening to
beat me when the lights go out.[”] He said,
[“]There’s nothing I can do about that . . . [W]hat I
will do is relay the message and we will get back with
you . . . I’ll get back with you later.[”] I said,
[“]well, later’s going to be too late.[”]
J.A. 238. Tucker reported this conversation to his supervisor,
Wigfall, because Wigfall had more experience. Tucker did not
take additional action at that point.
Wigfall admitted he knew Denney desired to be
transferred out of Pod C-1. He “informed P[rivate] Tucker that
[he] would handle the situation as soon as [they] were finished
feeding [the inmates].” J.A. 165. Wigfall felt that it would
only take five to ten minutes to finish feeding the inmates, and
then he could timely handle the situation involving Denney.
Wigfall said he did not immediately check on Denney because the
6
inmates “would get more riled up, which would cause a more
disturbing feeding.” Id. at 697. Wigfall directed Tucker to
complete the lockdown of inmates in Pod B, finish distributing
medications, and then check on Denney. Wigfall stated,
I made a judgment call based on my experience there,
knowing that a lot of inmates say, okay, we just want
to move because they want to go to another certain
area. They just want to go to another certain area of
the jail which they’re not allowed to go to, and we
were almost finished [feeding] the pods . . . .
Id. at 144.
Once the breakfast trays were collected, the inmates
began their “trial,” found Denney to be “guilty,” and
“sentence[d]” him to a “brutal beating.” J.A. 127-28. Denney
also testified that the inmates covered the video camera and
intercom in the pod with wet toilet paper, which also went
unnoticed by Appellants. The inmates proceeded to beat Denney
for five minutes, causing him to sustain “severe injury to [his]
hand[,] face[,] and head,” and leaving him completely deaf in
his right ear. Id. at 259, 535. At that point, which was
around 20 minutes after Denney told Tucker of the impending
harm, Tucker, who was now in the observation tower overlooking
the breakfast area, heard a loud noise over the intercom system
7
from Pod C-1. He responded, and radioed Wigfall that he needed
assistance. 3
Denney ultimately pled guilty to Assault and Battery
of a High and Aggravated Nature. He claims the beating that
occurred in this case “cause[d] him to plead to an offense he
did not commit . . . to avoid the risk of being imprisoned with
the original charge[.]” Appellee’s Br. 19-20. Denney sued
Tucker, Wigfall, and Maybank -- as well as Berkeley County,
Berkeley County Sheriff Wayne DeWitt, and jail officials
Jonathan Menzie and Crystal Thompson -- pursuant to 42 U.S.C.
§§ 1983, 1985, 1986, and 1988, and South Carolina law. 4 Tucker,
Wigfall, and Maybank filed a motion for summary judgment based
on qualified immunity. The district court, upon the
recommendation of the magistrate judge, denied qualified
immunity to all three. See Denney v. Berkeley Cnty., No. 3:10-
1383, 2012 WL 3877732 (D.S.C. Sept. 5, 2012). They timely
appealed that ruling. 5
3
The record also includes evidence of previous harm other
inmates had experienced at the jail. For example, inmate
Christopher Wolf stated he was “jumped” on two occasions in the
week preceding Denney’s incident, and “beat . . . up too [sic]
the point that [he] hardly could move”. J.A. 526.
4
This appeal regards only Denney’s claims with respect to
individual liability of Appellants pursuant to 42 U.S.C. § 1983.
5
The district court also dismissed defendants Crystal
Thompson and Berkeley County, and granted summary judgment in
(Continued)
8
II.
We review a district court’s denial of summary
judgment based on qualified immunity de novo. Hensley v.
Koller, 722 F.3d 177, 181 (4th Cir. 2013). Summary judgment is
appropriate if a party “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). At the summary
judgment stage, “to the extent that the district court has not
fully set forth the facts on which its decision is based, we
assume the facts that may reasonably be inferred from the record
when viewed in the light most favorable to the plaintiff.”
Hensley, 722 F.3d at 181 (internal quotation marks and
alteration omitted).
We must first and foremost, however, “satisfy
ourselves of our appellate jurisdiction over th[is] case.”
Ranta v. Gorman, 721 F.3d 241, 245 (4th Cir. 2013).
III.
A.
In determining whether an official is entitled to
qualified immunity, “a court must decide (1) whether the
[official] has violated a constitutional right of the plaintiff
favor of defendants Jonathan Menzie and Sheriff Wayne DeWitt.
These rulings are not before us in this appeal.
9
and (2) whether that right was clearly established at the time
of the alleged misconduct.” Bland v. Roberts, --- F.3d ---, No.
12-1671, 2013 WL 5228033, at *19 (4th Cir. Sept. 18, 2013).
Usually, a denial of summary judgment is not appealable where no
final order has issued. See 28 U.S.C. § 1291; Jenkins v.
Medford, 119 F.3d 1156, 1159 (4th Cir. 1997) (en banc).
However, a denial of qualified immunity is immediately
appealable if “the issue appealed concern[s], not which facts
the parties might be able to prove, but, rather, whether or not
certain given facts show[] a violation of clearly established
law.” Johnson v. Jones, 515 U.S. 304, 311 (1995) (internal
quotation marks omitted); see also id. at 317 (“[I]mmunity
appeals interfere less with the final judgment rule if they are
limited to cases presenting neat abstract issues of law.”
(internal quotation marks and alterations omitted)).
Thus, we possess jurisdiction over a district court’s
denial of qualified immunity “‘to the extent that [the denial]
turns on an issue of law.’” Iko v. Shreve, 535 F.3d 225, 234
(4th Cir. 2008) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530
(1985)) (emphasis omitted). Critically, however, “we lack
jurisdiction to re-weigh the evidence in the record to determine
whether material factual disputes preclude summary disposition.”
Id. As such, we must attempt to “parse[] the district court’s
findings and conclusions regarding” Denney’s claim, and “assure
10
ourselves that the officers raised the appropriate legal
question on appeal, and did not merely focus on rehashing the
factual disputes below.” Id. at 235, 236. If the “appealing
official seeks to argue . . . that the evidence presented was
insufficient to support a conclusion that the official engaged
in the particular conduct alleged,” then “we do not possess
jurisdiction under § 1291 to consider the claim . . . .”
Winfield v. Bass, 106 F.3d 525, 529 (4th Cir. 1997) (en banc).
B.
Here, the district court concluded, “Plaintiff Denney
has shown that a genuine issue of material fact exists as to
whether Defendants Tucker, Wigfall, and Maybank violated his
Fourteenth Amendment rights.” Denney v. Berkeley Cnty., No.
3:10-1383, 2012 WL 3877732, at *8 (D.S.C. Sept. 5, 2012). The
district court also correctly identified the legal issue at
play, i.e., whether “by 2008 it was clearly established that
immediate action, or something approaching it, was required of
the prison officials who knew of an imminent, serious threat to
the physical safety of a pretrial detainee,” and held,
[T]his Court concludes that [the officers] violated a
clearly established constitutional right[] of which a
reasonable person would have known, for a prison
official presented with an immediate, serious threat
to a prisoner’s safety, and capable of taking
effective action safely, to disregard that risk
completely, as Maybank is alleged to have done, or to
postpone action for the sake of timely serving a meal,
as Tucker and Wigfall are alleged to have done. Such
11
a basic obligation would have been readily apparent
under the law existing at the time.
Id. at *8-9 (internal quotation marks, citation, and alteration
omitted).
Of course, “nearly every ‘decision of a district court
denying a governmental official’s request for summary judgment
based upon qualified immunity will encompass’ both a factual and
a legal determination -- ‘that the facts are sufficiently
controverted to warrant a trial and that the legal right
purportedly violated was clearly established.’” Iko, 535 F.3d
at 234-35 (quoting Winfield, 106 F.3d at 529) (emphasis in
original). Here, the district court’s order necessarily assumes
facts in making its legal conclusion: the officials were
presented with an “immediate” and “serious” threat; they were
“capable of taking effective action” and doing so “safely”; and
they “disregarded that risk completely” or “postpone[d] action
for the sake of timely serving a meal.” But, as explained
below, the genuineness of these facts is the very issue
Appellants raise in this court.
Although Appellants maintain that they raise a purely
legal issue based on undisputed facts, the substance of their
arguments belie that assertion. They undoubtedly ask us to
resolve disputed facts in their favor and base our legal ruling
on those facts. Moreover, Denney quibbles with Appellants’
12
stated version of the facts. For example, following is a non-
exhaustive list of fact-based arguments made in the briefs and
at oral argument:
• “Under the facts and circumstances
confronting Pvt Tucker, being one person
short [Officer Hamlet] of their normal staff
of six (to supervise 300 prisoners) due to
illness, the need to feed the inmates, and
the need to herd inmates picking up their
food trays in the day room back into their
cells, none of Pvt Tucker’s actions or
inactions were unreasonable.” Appellants’
Br. 21. Compare Appellee’s Br. 26 (“[T]he
record reflects the staffing level was
meaningless.”), with Appellants’ Rep. Br. 4
(“It’s perplexing for Denney to argue that
the absence of detention officer Hamlet did
not make any difference. If Hamlet had not
been absent it would have helped the
situation because the shift would not have
been shorthanded and the time interval
between the officers being available to
react would have been shortened.” (citations
omitted)).
• “Tucker’s actions were ‘reasonable’ both for
purposes of due process and what he ‘could
have believed’ for qualified immunity for
various reasons[,] [including] the staff was
short handed and stressed because officer
Hamlet, who was absent, would have assisted
with the feeding.” Appellants’ Br. 21
(emphasis in original).
• “It seems almost without quibble that Tucker
could have believed it was not a
constitutional violation to complete his
required and administrative duties which he
was in the act of doing, in a crowded jail,
immediately after reporting to his superior
officer Appellee’s concerns” and “[h]e did
not do so because he felt a time pressure to
complete his assigned administrative tasks.”
13
Id. at 22 (emphasis in original) (internal
quotation marks omitted).
• “Wigfall knew it would take only 5 to 10
minutes to finish feeding B pod and felt the
time it would take to finish feeding the
inmates would still enable him to timely
handle the situation involving Appellee.”
Id. at 23 (citation omitted).
• “Appellee argues that he was improperly
assigned because he was placed in Pod C-1
with violent inmates. Appellee was not
misassigned because he was charged with a
Lewd Act Upon [a] Child Under Sixteen, a
felony and violent crime under South
Carolina law. Patently, for assignment and
classification purposes, Appellee was as
violent as any of the other inmates.” Id.
at 25 (emphasis in original) (internal
quotation marks omitted).
• “[R]eadily available alternatives . . . were
present at all times to have protected Mr.
Denney but [they] were not used to protect
him until after he was beaten.” Appellee’s
Br. 25. (Appellants did not respond to this
argument.)
• “[A] five, or ten, or 20 minute delay to
serve breakfast is [not] an appropriate
approximation of an immediate response.”
Appellee’s Br. 34.
• Appellee lists “other options” for
responding to Denney’s fears, in addition to
the options conceded by Appellants, that
would have “protected . . . Denney.” Id. at
34-35.
• “There is an allegation . . . that [Denney]
was wrongfully assigned. We disagree with
that.” Oral Argument at 01:23-01:31, Denney
v. Tucker (No. 12-7722), available at
14
http://www.ca4.uscourts.gov/oral-argument/
listen-to-oral-arguments. 6
We simply do not possess jurisdiction to conduct
review of these facts pursuant to Johnson and its progeny, and
it is improper for us to decide the legal issue in question with
regard to disputed versions of the facts as set forth above.
See Johnson, 515 U.S. at 314 (dismissing case for lack of
jurisdiction because the Court could not “find any . . .
‘separate’ [legal] question -- one that is significantly
different from the fact-related legal issues that likely
underlie the plaintiff’s claim on the merits”); Witt v. W. Va.
State Police, 633 F.3d 272, 277-78 (4th Cir. 2011) (“[T]he
troopers’ attempt to rehash the factual dispute below provides
no basis for interlocutory appeal of the district court’s order
denying summary judgment on qualified immunity grounds.”
(internal quotation marks and alteration omitted); McKenna v.
City of Royal Oak, 469 F.3d 559, 561 (6th Cir. 2006) (“While the
officers assert that they raise only the legal issue of whether
the facts set forth by McKenna constitute a violation of clearly
6
In addition, Appellants clearly raised issues of fact in
their summary judgment motion. See J.A. 89 (“[T]he extent of
the ‘warning’ given by plaintiff Denney to . . . Tucker is
contested.”); id. at 91 (“In this case, the correctional
officers were not aware of an excessive risk to plaintiff Denney
because he did not communicate or identify the risk or what he
was scared of.” (internal quotation marks omitted)).
15
established law, all three arguments advanced by the officers on
the issue of qualified immunity in fact rely on their own
disputed version of the facts . . . .” (internal quotation marks
and alteration omitted)). 7 Therefore, we are constrained to
dismiss this appeal.
IV.
For the foregoing reasons, we dismiss this appeal for
lack of jurisdiction.
DISMISSED
7
See also Swick v. Wilde, No. 12-2196, 2013 WL 3037515, at
*5 (4th Cir. June 19, 2013) (dismissing appeal for lack of
jurisdiction where “[a]lthough Wilde attempts to convince us
that his appeal presents only a legal question based on
undisputed facts, his arguments rely on his own version of the
events, not Swick’s.”); Landrum v. Bowens, 373 F. App’x 370, 371
(4th Cir. 2010) (dismissing appeal for lack of jurisdiction,
stating, “[a]lthough the district court did make a legal
determination that there was a clearly established right to
reasonable medical care, Appellants do not challenge that
determination, but instead the fact-related issues regarding
whether certain actions occurred that could amount to a
constitutional violation”).
16