UNPUBLISHED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Dismissed by unpublished per curiam opinion. 
2

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Unpublished opinions are not binding precedent in this circuit.
3

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). 
4

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. 
5

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 
6

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 
7

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 
8

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)
9

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. 
10

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 
11

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 
12

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’ 
13

stated version of the facts. For example, following is a nonexhaustive 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.” 
14

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 
15

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)).
16

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”).