                               UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
