UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-6687

BILLY TEDDER,

Plaintiff - Appellant,

v.

SGT. JOHNSON,

Defendant – Appellee,

and

MARGRETT BELL, Associate Warden of Security; WARDEN ANTHONY 

PADULA; DIRECTOR JOHN OZMINT, South Carolina Department of 

Corrections,

Defendants.

Appeal from the United States District Court for the District of 

South Carolina, at Anderson. J. Michelle Childs, District 

Judge. (8:09-cv-03067-JMC)

Argued: March 20, 2013 Decided: June 12, 2013

Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and HAMILTON, 

Senior Circuit Judge.

Reversed and remanded by unpublished opinion. Chief Judge 

Traxler wrote the opinion, in which Judge Wynn and Senior Judge 

Hamilton joined.
2

Thomas Elwyn Davies, PUBLIC JUSTICE CENTER, Baltimore, Maryland, 

for Appellant. Walker Heinitsh Willcox, WILLCOX BUYCK & 

WILLIAMS, PA, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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TRAXLER, Chief Judge:

Appellant Billy Tedder, an inmate at Lee Correctional 

Institution (“LCI”) in Bishopville, South Carolina, filed this

§ 1983 action against Sergeant Henry Johnson, alleging that 

Johnson used constitutionally excessive force when Johnson 

pepper-sprayed him while Tedder was attempting to join LCI’s 

“pill line” to receive his seizure medication. Johnson moved 

for summary judgment on several grounds: (1) that Tedder failed 

to exhaust his administrative remedies; (2) that the use of 

force against Tedder was reasonable; and (3) that he was 

entitled to qualified immunity. The district court concluded 

that a genuine issue of material fact existed on the exhaustion 

issue, but that Tedder failed to adduce sufficient evidence to 

establish a violation of his Eighth Amendment rights. 

Accordingly, the district court granted summary judgment in 

favor of Johnson. This appeal followed. We reverse the grant

of summary judgment and remand for further proceedings.

I.

We recount the relevant facts in a light most favorable to 

Tedder who is the non-moving party. See, e.g., Robinson v. 

Clipse, 602 F.3d 605, 607 (4th Cir. 2010). Tedder, who is 

serving a life sentence in a minimum security unit at LCI, has 

been in the custody of the South Carolina Department of 

Corrections (“SCDC”) since the 1980s. During this 20-plus year 
4

period, Tedder accrued three disciplinary citations classified 

as “assaultive.”* There are numerous other charges listed in 

Tedder’s disciplinary record, but these are classified as “nonassaultive disciplinaries”—presumably infractions that were 

relatively minor. J.A. 77. 

Tedder suffers from a significant seizure disorder that 

requires him to take medication three times per day immediately 

following meals. If Tedder does not take his medication with 

food, he vomits violently. Moreover, Tedder's seizure condition 

causes him to experience dizziness several times per day. 

Therefore, SCDC doctors issued him a “pass” permitting him to 

sit down or lie down when he has bouts of dizziness and to use a 

cane. Additionally, Tedder suffers from asthma and takes 

prescription asthma medication. 

Prescription medication is distributed at LCI via the “pill 

line” in the medical unit. LCI is divided into a “West Yard” 

and an “East Yard”; Tedder’s unit is in the West Yard. LCI 

policy is to not have West Yard and East Yard inmates waiting in 

the pill line simultaneously because of previous altercations 

 * The record contains little information about the 

“assaultive disciplinaries” other than the name of the charged 

infraction, the disposition of the charge and the date of the 

underlying incident: 1) “Fighting without a weapon,” convicted, 

2009; 2) “Striking an employee,” convicted, 2004; and 3) 

“Fighting without a weapon,” convicted, 1996. J.A. 77.
5

between East and West inmates. However, there was evidence that 

this policy was not strictly enforced. 

For about six months prior to August 28, 2009, Lieutenant 

Anthony Graham had been permitting Tedder to leave the mess hall 

immediately after his meal and go directly to the pill line 

regardless of whether the West Yard or East Yard was currently 

in line. Johnson had witnessed Tedder leave early for the pill 

line on numerous occasions. In fact, on several of these 

occasions, Johnson was working the “Plaza Gate” through which 

inmates must pass to join the pill line. Johnson often stopped 

Tedder from going through this gate until Tedder could show a 

pass or a superior officer confirmed that Tedder was permitted 

to pass. 

On August 28, 2009, Tedder ate lunch and immediately 

proceeded to the pill line. Lt. Graham, who was in charge of 

the prison yard for the day, gave Tedder permission to enter the 

Plaza Gate in order to stand in the pill line. Lt. Graham 

indicated that he would tell Johnson, who was at the Plaza Gate, 

to let Tedder pass for his medication. When Johnson noticed 

Tedder in line to come through the Plaza Gate, however, he 

yelled that Tedder was not getting through and told Tedder to 

return to his unit. At the time, East Yard inmates were 

technically supposed to be in the pill line; witnesses, however, 
6

noticed that inmates from both the East and West Yards were 

mingled together in the pill line. 

Rather than immediately comply with Johnson’s order to 

leave, Tedder told Johnson that Lt. Graham was going to call him 

to confirm that Tedder had permission to pass through the gate 

to get his seizure medication. And, in fact, Lt. Graham did 

contact Johnson via radio and instruct him to let Tedder pass 

through the gate. Nonetheless, Johnson repeated to Tedder, “you 

ain’t coming through the gate,” and Tedder again insisted that 

he had permission from Lt. Graham to enter. According to 

witnesses, Johnson became hostile with Tedder, telling him “No, 

cracker, you ain’t coming through this gate” and “your cracker 

ass is not going to do nothing but go back to the Unit.” 

At this point, witnesses observed Tedder moving slowly and 

concluded that he was ill. Tedder informed Johnson, “I can’t 

make it back to the dorm, I am too tired and too weak to make it 

to the dorm. I am going to lean against this here wall until I 

can make it to the dorm.” Johnson reacted by poking Tedder’s 

nose with his finger and yelling in his face, “You damn cracker, 

you’re going to listen to me.” Tedder tried to turn away from 

Johnson, but Johnson sprayed him in the face with approximately 

14 ounces of pepper spray, causing Tedder to gasp for air, 

cough, gag, and vomit. According to inmates who watched the 

entire sequence of events, “[A]t no time whatsoever did Tedder 
7

make any threatening moves towards Johnson or anyone else. At 

no time did Tedder verbally threaten anyone.” J.A. 88. After 

discharging the pepper spray, Johnson grabbed Tedder and shoved 

him into the wall and then onto the ground. Tedder cursed at 

Johnson and asked Johnson, “Why the hell did you spray me?” 

Johnson then put his knee into Tedder’s back and cuffed Tedder’s 

hands behind him. When Tedder yelled that Johnson was hurting 

him, Johnson laughed. 

Superior officers eventually arrived and directed Johnson 

to take Tedder to get cleaned up. Tedder was kept in a holding 

cell for a few hours and then released back to his unit. As a 

result of this incident, disciplinary charges for refusing or 

failing to obey a guard were lodged against Tedder. The charges 

were ultimately dropped.

Johnson’s version of what occurred is different. According 

to Johnson, Tedder simply refused to obey and raised his cane at 

Johnson in a menacing fashion. Johnson believes that 

discharging chemical munitions in Tedder’s face was required to 

maintain order as he was concerned that Tedder’s unruly behavior 

might incite other inmates in the vicinity. 

II.

In the prison context, a claim that officials applied 

excessive force falls under the Cruel and Unusual Punishments 

Clause of the Eighth Amendment, which “protects inmates from 
8

inhumane treatment and conditions while imprisoned.” Williams 

v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996); see Iko v. 

Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (internal quotation 

marks omitted). “Eighth Amendment analysis necessitates inquiry 

as to whether the prison official acted with a sufficiently 

culpable state of mind (subjective component) and whether the 

deprivation suffered or injury inflicted on the inmate was 

sufficiently serious (objective component).” Williams, 77 F.3d 

at 761. 

The objective component focuses not on the severity of any 

injuries inflicted, but rather on “the nature of the force,” 

which must be “nontrivial.” Wilkins v. Gaddy, 130 S. Ct. 1175, 

1179 (2010). The objective component can be met by “the pain 

itself,” even if the prisoner has no “enduring injury.” 

Williams, 77 F.3d at 762 (internal quotation marks omitted).

Regarding the subjective component, the key question is 

“whether force was applied in a good faith effort to maintain or 

restore discipline or maliciously and sadistically for the very 

purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-

21 (1986) (internal quotation marks omitted); see Shreve, 535 

F.3d at 239. In Whitley, the Court outlined factors to consider 

when deciding if the prison official acted wantonly or 

maliciously: (1) the necessity for the application of force; 

(2) the relationship between the need for force and the amount 
9

of force used; (3) “the extent of the threat to the safety of 

staff and inmates, as reasonably perceived by the responsible 

officials on the basis of the facts known to them” at the time; 

and (4) the “efforts made to temper the severity” of the force 

applied. Whitley, 475 U.S. at 321. 

The district court concluded that Tedder proffered 

insufficient evidence to satisfy the subjective component of his 

Eighth Amendment claim. Applying the Whitley factors, the court 

concluded that a reasonable jury could not conclude from the 

facts presented that the pepper spray was not used in good faith 

but maliciously. Specifically, the district court relied on the 

fact that Tedder did not comply with Johnson’s orders to return 

to his unit. The court noted that in his affidavit, Johnson 

stated that the use of mace on Tedder was necessary to “restore 

order, prevent possible unrest among the inmates [in the 

immediate vicinity], and protect the safety of [Johnson], other 

inmates, and Tedder.” 

We disagree. As this appeal arises from a grant of summary 

judgment, we must view the record in a light most favorable to 

Tedder. Application of the Whitley factors would permit a trier 

of fact to conclude that Johnson sprayed Tedder wantonly and 

maliciously for the purpose of causing him harm. First, there 

is evidence suggesting that there was no need for the 

application of force at the time that Johnson applied it. 
10

Johnson did not use the mace on Tedder until after Tedder 

indicated that he was “too tired and too weak to make it to the 

dorm,” and was “going to lean against this here wall until [he] 

c[ould] make it to the dorm.” J.A. 73. Witnesses stated that 

Tedder appeared visibly sick and that Tedder had not said or 

done anything threatening to Johnson, other guards or anyone 

else. Moreover, Johnson was well aware that Tedder had an 

actual medical problem for which he had routinely been given 

accommodation. Accordingly, when Johnson applied the pepper 

spray, Tedder had already indicated that he was not going to 

resist and would return to his unit when he was physically able 

to do so. Second, because the facts, viewed in Tedder’s favor, 

permit the conclusion that no force was necessary at all, the 

Whitley “amount of force” factor favors Tedder as well.

In applying the third Whitley factor, we must consider the 

extent of any threat posed by Tedder to the staff or other 

inmates, as reasonably perceived by Johnson based on the facts 

known to him at the time. Johnson contends that he believed 

Tedder posed a threat because (1) Johnson “knew [Tedder] had a 

long history of serious and violent disciplinary infractions,” 

and (2) Tedder raised his cane in a threatening manner and 

shouted expletives at Johnson. J.A. 42-43. Again, the record 

contains sufficient facts from which a trier of fact could 

conclude that Tedder posed no threat at all. First, it is 
11

debatable whether Tedder had a “long history of serious and 

violent disciplinary infractions.” Johnson’s characterization 

of Tedder’s disciplinary record is undercut by the fact that in 

more than 20 years of SCDC custody, Tedder has only been cited 

for three “disciplinaries” serious enough to be categorized as

“assaultive.” More importantly, nothing about the incident in 

question suggests that Tedder posed a threat. Tedder was 

visibly in a weak physical condition and also communicated to 

Johnson that he was too tired to walk back to his housing unit. 

This squared with Tedder’s significant health problems of which 

Johnson was aware since he had observed LCI’s accommodations to 

Tedder on several previous occasions. Furthermore, Tedder told 

Johnson that he would return when he had the strength to do so; 

thus, he made clear that he intended to obey Johnson. Finally, 

Tedder specifically denied raising his cane and witnesses 

indicated Tedder did nothing threatening during the incident. 

Tedder also denied cursing Johnson before getting maced. 

Fourth, the facts suggest that Johnson did nothing to 

temper the severity of the force applied. Johnson points to the 

fact that he used only a small amount of mace, but given that 

none was required at all to force compliance from an inmate who 

was already complying and unable to resist, this factor is of no 

significant value to Johnson. In fact, after spraying Tedder, 
12

Johnson took him down and handcuffed him despite Tedder’s 

obvious distress. 

Finally, Johnson ignored a direct order to allow Tedder to 

get his medicine, used racial epithets against Tedder throughout 

the incident, and laughed at Tedder’s complaints. These facts 

provide a sufficient basis from which a trier of fact could

conclude that Johnson acted maliciously. 

We further conclude that Tedder created a genuine issue of 

material fact on the objective component of his Eighth Amendment 

excessive force claim. Tedder’s adverse physical reaction to 

the pepper spray—gagging, breathing difficulty, and vomiting—

establishes that the nature of the force Sgt. Johnson used 

against Tedder was nontrivial. See Danley v. Allen, 540 F.3d 

1298, 1309 (11th Cir. 2008) (observing that pepper spray is 

designed to disable the person sprayed “by causing intense pain, 

a burning sensation that causes mucus to come out of the nose, 

an involuntary closing of the eyes, a gagging reflex, and 

temporary paralysis of the larynx” (internal quotation marks 

omitted)), overruled on other grounds by Randall v. Scott, 610 

F.3d 701 (11th Cir. 2010).

Accordingly, the district court erred in concluding that 

Tedder failed to proffer sufficient evidence to establish that 

Johnson acted maliciously and sadistically in spraying Tedder 

with pepper spray. Johnson therefore cannot claim qualified 
13

immunity because malicious and sadistic use of force for the 

very purpose of causing pain is always in violation of clearly 

established law. This is not an incorrect guess in a gray area 

of the law. See Shreve, 535 F.3d at 240 (denying qualified 

immunity to a prison guard because right to be free from 

excessive use of pepper spray was clearly established).

III.

Johnson urges us to affirm the district court’s summary 

judgment order on alternative grounds. See United States v. 

Smith, 395 F.3d 516, 519 (4th Cir. 2005) (“We are not limited to 

evaluation of the grounds offered by the district court to 

support its decision, but may affirm on any grounds apparent 

from the record.”). Johnson contends Tedder failed to exhaust 

his administrative remedies prior to filing this action 

challenging prison conditions under federal law. See 42 U.S.C. 

§ 1997e(a) (“No action shall be brought with respect to prison 

conditions under [42 U.S.C. § 1983] . . . by a prisoner confined 

in any . . . correctional facility until such administrative 

remedies as are available are exhausted.”). Exhaustion of 

available administrative remedies is mandatory and a 

prerequisite to suit. See Anderson v. XYZ Corr. Health Servs., 

Inc., 407 F.3d 674, 677 (4th Cir. 2005). However, “an 

administrative remedy is not considered to have been available 

if a prisoner, through no fault of his own, was prevented from 
14

availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 

(4th Cir. 2008). 

Tedder filed a grievance regarding the pepper spray 

incident shortly after it occurred, but the grievance form was 

“closed without a decision on its merits,” J.A. 55, on the 

ground that the incident being grieved was also the subject of a 

pending disciplinary charge. Under prison policy, a grievance 

could not be filed regarding an incident that was the subject of 

a disciplinary charge until after the charge had been resolved. 

J.A. 57. After resolution of the charge, the inmate had 15 days 

to file a grievance regarding the same subject matter. The 

disciplinary charges against Tedder based on the pepper spray 

incident were dropped. Tedder, however, did not re-file his 

grievance after resolution of the disciplinary charges. 

Johnson contends that the administrative grievance process 

was available to Tedder as reflected by the fact that Tedder not 

only filed a grievance regarding this incident (albeit 

improperly) but filed multiple grievances during his time at 

LCI. Johnson argues that because Tedder understood how to file 

grievances, the grievance process was an administrative remedy 

available to him but unexhausted. 

We cannot affirm the grant of summary judgment on this 

basis. At the summary judgment stage, Johnson has failed to 

establish that the evidence is so one-sided that no reasonable 
15

factfinder could find that Tedder was prevented from exhausting 

his administrative remedies. See Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 251-52 (1986). The record contains evidence 

suggesting that Tedder was prevented from availing himself of 

the grievance process in this particular instance because LCI’s 

grievance coordinator Catherine James told Tedder that his 

grievance was exhausted and no further action was required 

before he could proceed to federal court. The record further

contains evidence that Tedder was illiterate and therefore had 

no choice but to rely on this assurance from James. 

Tedder states in his affidavit that after the disciplinary 

hearing which was resolved in his favor, officer James told him 

“that [his] grievances were exhausted, i.e. ‘You can go to the 

street to court,’ because it was after fifteen days from the 

incident.” J.A. 29. In another affidavit, Tedder declared, “I 

was told by the head grievance officer, a female, that my 

grievance was done.” J.A. 74. Moreover, James’s official 

written response to Tedder’s grievance, which was read to Tedder 

by another inmate, suggested that he could not pursue the merits 

of his excessive force grievance any further:

When an inmate is involved in an incident that results 

in a disciplinary, that issue/complaint becomes nongrievable. Therefore, this complaint is being closed 

without a decision on its merit. Once you have been to 

your disciplinary hearing and if you feel that there 

were technical/procedural errors regarding your 

hearing, you may submit a grievance at that time.
16

J.A. 55 (emphasis added). This written response could be 

reasonably interpreted to mean that Tedder could file a 

grievance if there was a technical error at the disciplinary 

hearing. Since the disciplinary charges were dropped, Tedder 

would not have had reason to file a grievance with respect to 

his hearing. On this record, we cannot affirm summary judgment 

in favor of Johnson. 

IV.

For the foregoing reasons, we reverse the district court’s 

grant of summary judgment and remand for additional proceedings.

REVERSED AND REMANDED