                                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
