Supreme Court weighs appeal preservation question in Md. prisoner assault case

A former Maryland correctional officer’s request to appeal a federal jury verdict in a 2013 prisoner assault is at the center of a key procedural question now being considered by the U.S. Supreme Court.

The court heard arguments Monday in the case, which asks whether a “purely legal” issue that is resolved at the summary judgment phase is preserved for appeal.

Former Lt. Neil Dupree, who worked at the Maryland Reception, Diagnostic & Classification Center in Baltimore at the time of the attack, sought to appeal after a federal jury reached a $700,000 verdict in favor of the inmate, Kevin Younger.

Younger was assaulted by several corrections officers at MRDCC on Sept. 30, 2013, the day after he had witnessed other inmates assaulting another guard. Younger was housed away from other inmates because he had seen the assault, as were other inmates who were implicated in the attack on the guard, according to his lawsuit.

The three officers went from cell to cell beating the prisoners, including Younger, in an act of “misplaced retaliation,” the lawsuit claimed. Dupree was accused of sanctioning a violent culture at MRDCC and of directing the retaliatory attacks by telling the other officers he wanted “blood for blood,” according to testimony at the federal trial.

After jurors awarded damages to Younger, Dupree attempted to appeal based on an earlier argument his lawyers had raised: that Younger failed to exhaust the administrative remedies that were available to him as required by the Prison Litigation Reform Act.

A federal judge had previously rejected Dupree’s argument at the summary judgment stage of the lawsuit, finding that the existence of an internal investigation into the prisoner assaults meant other administrative remedies were not available to Younger. Dupree did not raise the issue again at trial or in post-trial motions.

The 4th U.S. Circuit Court of Appeals found that the issue had not been properly preserved for appeal and declined to consider the substance of Dupree’s argument. The appeals court concluded it was bound by precedent, but acknowledged there is a split among federal circuit courts on the preservation question.

At oral arguments Monday, the lawyer for Dupree told the justices that parties are not required to repeatedly raise a settled legal question in order to preserve it for appeal.

“When a district court resolves a purely legal issue against a party at summary judgment, that issue is preserved for appellate review,” said the lawyer, Andrew T. Tutt, of Arnold & Porter Kaye Scholer LLP.

“There is no requirement that if the case then progresses to a jury trial, the aggrieved party must make two additional motions repeating the same legal argument simply to ensure the issue remains live for review on appeal.”

The justices raised questions, however, about whether the issue in the Maryland case is truly a “purely legal” one. Administrative exhaustion is an affirmative defense that involves determining whether a prison inmate went through every internal administrative proceeding available to them before filing a federal lawsuit.

Justice Neil Gorsuch suggested the case may not be a good fit for the underlying preservation issue.

“I just struggle to see whether maybe we picked the right case for deciding this question given that I would have thought that an affirmative defense, you would have had to raise something at trial,” Gorsuch said. “You didn’t even make a proffer of evidence. You didn’t do anything at trial on your own affirmative defense.”

Allen E. Honick, one of the lawyers who represented Younger in his lawsuit, said this is not the right case to determine the preservation question.

“The exhaustion issue is inextricably a mixed question,” said Honick, of Furman Honick Law. “It’s fact and law. … You need a factual finding of whether remedies were available.”