Kevin Younger v. Neil Dupree

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6423
KEVIN YOUNGER,
Plaintiff – Appellee,
v.
NEIL DUPREE,
Defendant – Appellant,
and
JEMIAH L. GREEN; RICHARD N. HANNA; KWASI H. RAMSEY; WALLACE
SINGLETARY; TYRONE CROWDER,
Defendants.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, Senior District Judge. (1:16-cv-03269-RDB)
Argued: May 9, 2024 Decided: June 17, 2024
Before KING, GREGORY, and RUSHING, Circuit Judges.
Affirmed by unpublished opinion. Judge King wrote the opinion, in which Judge Gregory
and Judge Rushing joined.
ARGUED: Brian Williams, ARNOLD & PORTER KAYE SCHOLER LLP, Denver,
Colorado, for Appellant. Samuel Paul Morse, WHITEFORD, TAYLOR & PRESTON,

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L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF: Brian E. Frosh, Attorney
General, Karl A. Pothier, Assistant Attorney General, Shelly E. Mintz, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland; R. Stanton Jones, Andrew T. Tutt, Dana Or, John Hoover, ARNOLD &
PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellant. David Daneman,
WHITEFORD, TAYLOR & PRESTON, L.L.P., Baltimore, Maryland; Allen Eisner
Honick, FURMAN HONICK LAW, Owings Mills, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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KING, Circuit Judge:
In this 42 U.S.C. § 1983 action arising from a brutal prison guard attack on inmates,
a jury in the District of Maryland found defendant-appellant Neil Dupree and four
codefendants liable for violating plaintiff Kevin Younger’s Fourteenth Amendment due
process rights and awarded Younger $700,000 in damages. We previously dismissed
Dupree’s appeal, see Younger v. Dupree, No. 21-6423 (4th Cir. Mar. 11, 2022), ECF No.
40 (“Dupree I”) (unpublished), but the Supreme Court vacated our judgment and remanded
for further proceedings, see Dupree v. Younger, 598 U.S. 729 (2023) (“Dupree II”).
Shortly thereafter, our Court rendered a decision in the separate appeal of Dupree’s
codefendant Tyrone Crowder, involving the same contention raised by Dupree herein. See
Younger v. Crowder, 79 F.4th 373 (4th Cir. 2023). Having since obtained supplemental
briefing and conducted oral argument in this appeal regarding the impact of Dupree II and
Crowder, we now affirm the district court’s judgment against Dupree.
I.
A.
We begin with the facts and early procedural history of this matter, as recited in our
Dupree I opinion:
The dispute giving rise to this litigation stems from an assault that
occurred on September 30, 2013, at the Maryland Reception, Diagnostic &
Classification Center, a state prison in Baltimore, where Younger was a
pretrial detainee. That morning, three prison guards attacked Younger and
other inmates at the direction of Dupree, who served as an intelligence
lieutenant at the prison. Younger was asleep when the guards entered his

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cell. The assailants promptly grabbed Younger and threw him from his bunk
to the concrete floor. They assaulted Younger by slamming his head against
a toilet and striking his face, head, and body multiple times using handcuffs
and other objects. Having beaten Younger severely, the guards left him on
the floor of his cell, unconscious and bleeding profusely. Younger did not
receive appropriate and timely medical attention. Several months after the
incident, Younger was flown to a hospital for treatment of the injuries he
sustained to his head and leg. The prison guards who executed the attack on
Younger and the other inmates were criminally convicted for their actions,
and the prison’s warden was forced to resign.
On September 28, 2016, Younger initiated this 42 U.S.C. § 1983
action against Dupree and several other prison employees, including the
warden and the three prison guards who assaulted him. By his Complaint,
Younger alleged, inter alia, violations of the Eighth and Fourteenth
Amendments to the Constitution. On July 30, 2019, Younger filed his
operative Amended Complaint, again pursuing § 1983 claims under the
Eighth and Fourteenth Amendments. In his claims, Younger contended that
Dupree and his codefendants had used excessive force against him during the
2013 assault, in contravention of Younger’s Fourteenth Amendment due
process rights.
On November 18, 2019, Dupree moved for summary judgment,
maintaining, in relevant part, that Younger’s claims are barred because he
failed to exhaust his available administrative remedies — as required by the
PLRA — before initiating his § 1983 action. See 42 U.S.C. § 1997e(a).
Shortly thereafter, on December 19, 2019, the district court rejected Dupree’s
exhaustion contention and denied his summary judgment motion. See
Younger v. Green, No. 1:16-cv-03269 (D. Md. Dec. 19, 2019), ECF No. 217
(the “Denial Opinion”). As the Denial Opinion explained, the PLRA does
not bar Younger’s claims because the administrative remedy identified by
Dupree was “not truly available in any meaningful sense and Younger was
not required to pursue it.” See Denial Opinion 14 (internal quotation marks
omitted).
The litigation thereafter proceeded to the 10-day jury trial. On
February 4, 2020, the jury returned its verdict in favor of Younger, finding
Dupree and four of his codefendants liable under § 1983 for violating the
Fourteenth Amendment’s due process protections. The jury awarded

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Younger the sum of $700,000 in damages, and the district court entered its
judgment in Younger’s favor that same day.
Dupree thereafter filed a post-trial motion seeking a remittitur with
respect to the verdict, and the district court denied that motion. . . . Dupree
did not therein reassert his PLRA exhaustion contention that had been
rejected by the Denial Opinion.
See Dupree I, slip op. at 3-5 (footnote omitted).
B.
1.
Turning to the details of Dupree’s appeal, his sole argument is that the district court
erred in rejecting his summary judgment contention that Younger’s § 1983 claims are
barred because he failed to exhaust his available administrative remedies, as required by
the PLRA. In dismissing the appeal by our Dupree I opinion of March 11, 2022, we relied
on our precedent that we would “‘not review, under any standard, the pretrial denial of a
motion for summary judgment after a full trial and final judgment on the merits,’ when the
issue rejected pretrial has not been pursued in the district court by way of a post-trial
motion.” See Dupree I, slip op. at 5-6 (quoting Chesapeake Paper Prods. Co. v. Stone &
Webster Eng’g Corp., 51 F.3d 1229, 1237 (4th Cir. 1995)). We also invoked our precedent
“that the rule specified in Chesapeake applie[d] to appellate review of not only factual
issues, but also purely legal ones.” Id. at 6 (citing Varghese v. Honeywell Int’l, Inc., 424
F.3d 411, 423 (4th Cir. 2005)).
We concluded in Dupree I that “[b]ecause the circumstances of this appeal fall
precisely within the confines of our Chesapeake-Varghese precedent, the exhaustion issue

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raised by Dupree [was] not properly before us and our review thereof [was] precluded.”
See Dupree I, slip op. at 9. That is, “adher[ing] to our Chesapeake-Varghese precedent,”
we determined ourselves to be constrained to “dismiss this appeal.” Id.
2.
After our dismissal, Dupree successfully sought certiorari in the Supreme Court. By
its Dupree II decision of May 25, 2023, the Supreme Court vacated our judgment and
remanded for further proceedings. See Dupree II, 598 U.S. at 738. In so doing, the
Supreme Court held — contrary to our Chesapeake-Varghese precedent — that a post-trial
motion “is not required to preserve for appellate review a purely legal issue resolved at
summary judgment.” Id. at 736. The Supreme Court, however, did “not decide whether
the issue Dupree raised on appeal is purely legal,” leaving it to our Court to “evaluate that
and any other properly preserved arguments in the first instance.” Id. at 738.
3.
Following that remand, on August 24, 2023, our Court issued the Crowder decision
resolving the appeal of Dupree’s codefendant, who asserted the same PLRA exhaustion
contention against Younger. See Crowder, 79 F.4th at 377. And like Dupree, “Crowder
raised Younger’s purported failure to exhaust at summary judgment and on appeal, but not
in a [post-trial] motion.” Id. Thus, our Crowder panel was tasked by the Supreme Court’s
Dupree II decision to determine whether the PLRA exhaustion contention is a “purely legal
issue” that did not have to be re-raised in a post-trial motion in order to preserve it for
appeal. Id. at 377-78 (explaining that although “the Supreme Court expressly declined to
answer this question in Dupree [II], it did provide us with some guidance”). Heeding the

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Dupree II guidance, the Crowder decision ruled that the PLRA exhaustion contention is
indeed a purely legal issue that Crowder did not forfeit. Id. at 378-79.
Accordingly, our Crowder panel proceeded to the merits of the PLRA exhaustion
contention. See Crowder, 79 F.4th at 379. That is, Judge Richardson engaged in a
thorough analysis of whether Younger’s § 1983 claims are barred by the PLRA because he
failed to exhaust his available administrative remedies. Id. at 379-81. Emphasizing that
“[a]n inmate need only exhaust administrative remedies that are ‘available,’” the Crowder
decision concluded that “[n]o administrative remedies were available to Younger, so he
did not fail to properly exhaust.” Id. at 379 (quoting 42 U.S.C. § 1997e(a)).
C.
With the benefit of the Supreme Court’s decision in Dupree II and our decision in
Crowder, we now recognize that Dupree was not required to present his PLRA exhaustion
contention in a post-trial motion and has properly preserved it for appellate review. We
further recognize, however, that the PLRA exhaustion contention fails on the merits
pursuant to Crowder’s ruling that Younger had no available administrative remedies to
exhaust. Although Dupree would have us rule otherwise — that administrative remedies
were available to Younger and he inexcusably failed to exhaust them — we are bound by
our Crowder precedent. See McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2004)

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(en banc) (underscoring “the basic principle that one panel cannot overrule a decision
issued by another panel”).*
II.
Pursuant to the foregoing, we reject Dupree’s PLRA exhaustion contention and
affirm the judgment of the district court.
AFFIRMED
* Dupree has filed a separate motion to certify the exhaustion question to the
Supreme Court of Maryland. We do not deem such a certification to be warranted and thus
deny Dupree’s motion.

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