                               UNPUBLISHED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Reversed and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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
