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., 
2

Raleigh, North Carolina, for Appellee. ON BRIEF: Roy Cooper, 

North Carolina Attorney General, NORTH CAROLINA DEPARTMENT OF 

JUSTICE, Raleigh, North Carolina, for Appellants.
3

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 
4

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 
5

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 . . . 
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[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 bilateral 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.”
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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 
8

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 qualifiedimmunity 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.
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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.
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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).
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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
12

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.
13

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 wellbeing. These are the sort of injuries that may affect mobility, 
14

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.
15

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 
16

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.