Furman | Honick Law Argues in the United States Supreme Court
On Monday, the United States Supreme Court heard oral arguments in a Furman | Honick civil rights case styled Neil Dupree v. Kevin Younger (No. 22-210). The Court considered whether to preserve an issue for appellate review a party must reassert in a post-trial motion a purely legal issue denied at summary judgment. This issue, which is wholly detached from the merits of the case, only arose after one of the defendants, Neil Dupree, forfeited his legal arguments on appeal by failing to renew those arguments after the district court denied them at summary judgment.
The case stems from a 2013 prison beating in which three correctional officers, on direct orders from then-Lieutenant Dupree, attacked 7 prisoners for their perceived involvement in a previous altercation with another correctional officer (Dupree telling the COs he wanted “blood for blood”). Our pretrial detainee client, Kevin Younger, was one of those seven victims. However, Mr. Younger actually tried to help the correctional officer during that previous altercation (and likely saved the CO’s life), risking his own life in the process. Truly, no good deed goes unpunished. Mr. Younger’s act of courage and humanity was rewarded with a brutal attack by those tasked with ensuring his safety, beating him within an inch of his life, and leaving him with life-threatening injuries, permanent disabilities, and six months of punitive solitary confinement for false charges associated with the correctional officer altercation. The State of Maryland ultimately convicted the three correctional officer assailants, the warden was forced to resign, and internal affairs found overwhelming evidence that prison officials at every level covered up the attack.
In 2016, Mr. Younger filed a civil rights lawsuit against the individual bad actors, including the former warden and his third in command, Dupree (No. 1:16-cv-03269-RDB, D. Md.). Dupree moved for summary judgment and argued that Mr. Younger failed to exhaust his administrative remedies before filing suit, which is a mandatory requirement under the federal Prisoner Litigation Reform Act (“PLRA”). Summary judgment is only available when the material facts are not in dispute and the moving party is entitled to judgment as a matter of law.
Proper exhaustion under the PLRA is an affirmative defense for which Dupree had the burden of proof. The district court denied Dupree’s summary judgment motion, and Dupree seemingly abandoned his exhaustion defense by never raising it at trial or in a post-trial motion. In February 2020, a federal jury returned a $700,000 verdict in Mr. Younger’s favor finding each defendant liable for violating Mr. Younger’s constitutional rights.
After the jury verdict, Dupree appealed the pretrial summary judgment denial of his affirmative exhaustion defense, despite decades-old Fourth Circuit precedent that required Dupree to preserve this argument in a post-trial motion. Amazingly, Dupree’s lawyer admitted to the Fourth Circuit that he knew what was required to preserve his exhaustion defense for appeal, but simply failed to do so. Consequently, the Fourth Circuit dismissed Dupree’s appeal because he failed to preserve his arguments in a post-trial motion. https://www.ca4.uscourts.gov/opinions/216423.u.pdf.
Still refusing to accept responsibility for his actions, his lawyer’s incompetence, or for the jury’s verdict, Dupree filed a petition for writ of certiorari in the United States Supreme Court arguing that a purely legal issue is preserved for appeal once it is denied at summary judgment. We vigorously opposed the petition and argued that even if
purely legal issues are so preserved, Dupree’s exhaustion defense is a mixed question of fact and law that needed to be resolved in the district court. This is because a denial of summary judgment is not the same as a grant of summary judgment (which unequivocally preserves the issue for appeal). Indeed, a denial of summary judgment simply means that the claim or defense can proceed to trial—it is not a final judgment.
It turns out that by failing to preserve his exhaustion defense for appeal, Dupree’s lawyer tripped over his own incompetence and straight into a deeply entrenched circuit split concerning whether a purely legal issue needs to be re-raised after it is denied at summary judgment to preserve it for appeal. Recognizing this circuit split, and likely searching for a case less politically charged than others it considered this session, the Court granted Dupree’s petition.
At oral argument on Monday, however, the Court questioned whether this case was the right vehicle to decide the question presented because exhaustion requires fact-finding before applying the law. Justice Thomas noted the district court’s reference to unresolved disputed facts in its summary judgment denial opinion. Justice Sotomayor noted that Dupree’s exhaustion argument at summary judgment involved disputed facts. Justice Gorsuch offered the most pointed remarks and pressed Dupree’s counsel on why he failed to pursue his affirmative exhaustion defense at trial: “I would have thought that an affirmative defense, you would have had to raise something at trial . . . You didn’t even make a proffer of evidence. You didn’t do anything at trial on your own affirmative defense!”
We argued that Dupree’s affirmative exhaustion defense is not a neat, purely legal issue—i.e. the application of preexisting law to undisputed facts. This is because exhaustion is always a two-step inquiry, the first of which is necessarily fact-based. First, were remedies available? Second, if remedies are available, did the prisoner properly exhaust those remedies? Remedies can be unavailable in three ways: (1) the grievance process is a “dead end”; (2) the process is “opaque”; or (3) the prisoner was “thwarted” from using it. Clearly, factual disputes must be resolved to determine if remedies are available, and this must occur before answering the legal question of whether the prisoner properly exhausted those remedies.
We anticipate a decision from the Court by July. Regardless of how the Court resolves the circuit split on the purely legal preservation question, we are confident that the jury’s verdict will remain intact, and Mr. Younger will finally obtain the compensation that he deserves.
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