UNPUBLISHED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Reversed and remanded by unpublished opinion.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.
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Unpublished opinions are not binding precedent in this circuit.
2
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
3
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 “non-
assaultive 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.
4
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,
5
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
6
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
7
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
8
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.
9
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
10
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,
11
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
12
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
13
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
14
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 non-
grievable. 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.
15
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
16