Certiorari granted by Supreme Court, January 13, 2023

Remanded and vacated by Supreme Court, May 25, 2023

UNPUBLISHED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: January 25, 2022 Decided: March 11, 2022

Before KING and RUSHING, Circuit Judges, and David J. NOVAK, United States District 

Judge for the Eastern District of Virginia, sitting by designation.

Dismissed by unpublished opinion. Judge King wrote the opinion, in which Judge Rushing 

and Judge Novak joined.

USCA4 Appeal: 21-6423 Doc: 40 Filed: 03/11/2022 Pg: 1 of 9
2

ARGUED: Karl Aram Pothier, OFFICE OF THE ATTORNEY GENERAL OF 

MARYLAND, Baltimore, Maryland, for Appellant. Allen Eisner Honick, FURMAN | 

HONICK LAW, Owings Mills, Maryland, for Appellee. ON BRIEF: Brian E. Frosh, 

Attorney General, Shelly E. Mintz, Assistant Attorney General, OFFICE OF THE 

ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellant. David 

Daneman, WHITEFORD, TAYLOR & PRESTON, LLP, Baltimore, Maryland, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.

USCA4 Appeal: 21-6423 Doc: 40 Filed: 03/11/2022 Pg: 2 of 9
3

KING, Circuit Judge:

In this 42 U.S.C. § 1983 action, a jury in the District of Maryland found defendant 

Neil Dupree liable for violating plaintiff Kevin Younger’s Fourteenth Amendment due 

process rights. Dupree pursues a single issue on appeal: that the district court erred in 

rejecting his contention that Younger’s lawsuit is barred because he failed to exhaust his

available administrative remedies, as required by the Prison Litigation Reform Act (the 

“PLRA”). As explained below, because Dupree raised his exhaustion contention in a 

pretrial motion for summary judgment — and did not reassert that contention in a post-trial 

motion — our review thereof is precluded by controlling precedent. We therefore dismiss 

Dupree’s appeal. 

I.

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 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 

USCA4 Appeal: 21-6423 Doc: 40 Filed: 03/11/2022 Pg: 3 of 9
4 

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). 

USCA4 Appeal: 21-6423 Doc: 40 Filed: 03/11/2022 Pg: 4 of 9
5

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.

1

 The jury awarded 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. Importantly, Dupree did not therein 

reassert his PLRA exhaustion contention that had been rejected by the Denial Opinion. 

That fact notwithstanding, Dupree seeks appellate review of the court’s pretrial rejection

of his exhaustion contention. We possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Under controlling precedent of this Court, we “will 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 Chesapeake Paper Prod. Co. v. Stone & Webster Eng’g 

1 Younger erroneously asserts in his appellate brief that the jury found Dupree and 

four of his codefendants liable for violating the Eighth Amendment. See Br. of Appellee 

1, 2, 12, 14. According to the verdict, however, only Younger’s Fourteenth Amendment 

rights were violated. See Younger v. Green, No. 1:16-cv-03269 (D. Md. Feb. 4, 2020),

ECF No. 265. That is so because, unlike excessive force claims pursued by convicted

prisoners — which are governed by the Cruel and Unusual Punishment Clause of the

Eighth Amendment — excessive force claims pursued by pretrial detainees like Younger 

are governed by the Due Process Clause of the Fourteenth Amendment. See Kingsley v. 

Hendrickson, 576 U.S. 389, 400 (2015).

USCA4 Appeal: 21-6423 Doc: 40 Filed: 03/11/2022 Pg: 5 of 9
6

Corp., 51 F.3d 1229, 1237 (4th Cir. 1995). We have since made clear that the rule specified 

in Chesapeake applies to appellate review of not only factual issues, but also purely legal 

ones. See Varghese v. Honeywell Int’l, 424 F.3d 411, 423 (4th Cir. 2005). 

The circumstances of this appeal fall precisely within the scope of our ChesapeakeVarghese precedent. By his unsuccessful pretrial motion for summary judgment, Dupree

maintained that Younger’s § 1983 claims are barred because he failed to exhaust his

administrative remedies. In its Denial Opinion, the district court carefully considered and 

rejected that contention. And after losing the 2020 jury trial by way of the adverse damages 

verdict, Dupree failed to reassert and preserve his exhaustion argument in a post-trial 

motion.

Notably, Dupree concedes on appeal that our 1995 Chesapeake decision will 

“ordinarily” preclude appellate review of a pretrial denial of a summary judgment motion 

where, “as here, the issue has not been presented to the district court through a post-trial 

motion.” See Br. of Appellant 2. He also acknowledges that, in our 2005 Varghese

decision, we recognized that the Chesapeake precedent applies to and precludes appellate 

review of a “purely legal defense denied on summary judgment but not raised in a posttrial motion.” Id. Nevertheless, Dupree requests this panel to “revisit” our circuit

precedent and consider “the suggestion by the dissent in Varghese that Chesapeake does 

USCA4 Appeal: 21-6423 Doc: 40 Filed: 03/11/2022 Pg: 6 of 9
7

not and should not preclude appellate review of purely legal defenses extinguished on 

summary judgment.” See Reply Br. of Appellant 3.2

 

As Dupree correctly acknowledges, the Varghese decision makes it crystal clear 

that, when an issue resolved on summary judgment — even a purely legal one — is not 

presented to the district court in a post-trial motion, we will not review on appeal the 

pretrial denial of summary judgment after a full trial has been conducted and final judgment

entered. See 424 F.3d at 423. In support of his assertion that we should nevertheless review

his PLRA exhaustion contention, Dupree relies almost exclusively on a dissenting opinion

filed in Varghese. Id. at 423-27 (Motz, J., concurring in part and dissenting in part). That

dissent would have authorized appellate review of certain purely legal issues — such as 

legal defenses — if those issues were resolved pretrial and not later pursued in a post-trial 

motion. Id. at 426. Significantly, the dissent distinguished those circumstances from the 

situation in Chesapeake, where the summary judgment motion had presented factual issues 

and the court had decided that the case should go to trial. Id. at 425. The dissent observed

that “the evidentiary concerns discussed in Chesapeake are simply not at issue when a party 

seeks to reassert on appeal a legal defense that the court below rejected at the summary 

judgment stage.” Id. (emphasis omitted).

2 During oral argument, Dupree’s lawyer conceded that the Varghese decision is 

“controlling.” But when asked if he wished to pursue an en banc rehearing in this appeal 

to revisit our precedent, he responded in the negative. He then sought to distinguish 

Varghese based on the difference between the legal issue presented therein (preemption) 

and the legal issue pursued here (exhaustion). Put succinctly, Dupree’s effort to distinguish

Varghese is unpersuasive.

USCA4 Appeal: 21-6423 Doc: 40 Filed: 03/11/2022 Pg: 7 of 9
8

Relying on the Varghese dissent, Dupree argues here that, after his exhaustion 

contention — a legal defense — had been fully and finally resolved by the Denial Opinion, 

“nothing could have occurred at the merits trial to change that disposition.” See Reply Br. 

of Appellant 3. Dupree also laments that our Chesapeake-Varghese precedent is unfair in 

this context because it “perpetuates the extinction of [his] potentially meritorious legal 

defense to [Younger’s] claims simply because [Dupree] — after the merits trial and without 

any new facts in hand — did not ask the district court to revisit its earlier, purely legal, 

decision.” Id. at 4. 

Although we appreciate Dupree’s appellate contention, his argument simply tracks 

the views expressed in the Varghese dissent and is not supported by our circuit precedent. 

We recognize that there is a circuit split concerning appellate review of a purely legal issue 

in circumstances such as these. And we acknowledge that our precedent on this issue

adheres to the minority view.

3

 But as we have explained time and again, a three-judge

panel of this Court is not entitled to circumscribe or undermine an earlier panel decision. 

3 Based on our review of precedent from the other courts of appeals, the Second, 

Third, Sixth, Seventh, Ninth, Tenth, D.C., and Federal Circuits appear to allow appellate 

review of legal issues that were resolved pretrial and not presented to the district court 

again in a post-trial motion. See Rothstein v. Carriere, 373 F.3d 275, 284 (2d Cir. 2004); 

Pennbarr Corp. v. Ins. Co. of N. Am., 976 F.2d 145, 146, 149-55 (3d Cir. 1992); McPherson 

v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997); Chemetall GMBH v. ZR Energy, Inc., 320 

F.3d 714, 719-20 (7th Cir. 2003); Pavon v. Swift Transp. Co., 192 F.3d 902, 906 (9th Cir. 

1999); Ruyle v. Cont’l Oil Co., 44 F.3d 837, 841-42 (10th Cir. 1994); Feld v. Feld, 688 

F.3d 779, 783 (D.C. Cir. 2012); United Techs. Corp. v. Chromalloy Gas Turbine Corp., 

189 F.3d 1338, 1344 (Fed. Cir. 1999). The First and Fifth Circuits, on the other hand, do 

not permit appellate review in such circumstances. See Ji v. Bose Corp., 626 F.3d 116, 

127-28 (1st Cir. 2010); Feld Motor Sports, Inc. v. Traxxas, L.P., 861 F.3d 591, 596 (5th 

Cir. 2017). 

USCA4 Appeal: 21-6423 Doc: 40 Filed: 03/11/2022 Pg: 8 of 9
9

See McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) (en banc); see also 

United States v. Williams, 808 F.3d 253, 261 (4th Cir. 2015); Payne v. Taslimi, 998 F.3d 

648, 654 (4th Cir. 2021). We must therefore adhere to our Chesapeake-Varghese

precedent, which can only be altered by this Court sitting en banc or by the Supreme Court. 

Pursuant to that precedent, we “will not review, under any standard, the pretrial denial of 

a motion for summary judgment after a full trial and final judgment on the merits,” even in 

circumstances where the issue rejected on summary judgment and not reasserted in a posttrial motion is a purely legal one. See Varghese, 424 F.3d at 421, 423 (quoting Chesapeake, 

51 F.3d at 1237). Because the circumstances of this appeal fall precisely within the 

confines of our Chesapeake-Varghese precedent, the exhaustion issue raised by Dupree is 

not properly before us and our review thereof is precluded.

III.

Pursuant to the foregoing, we adhere to our Chesapeake-Varghese precedent and 

dismiss this appeal. 

DISMISSED

USCA4 Appeal: 21-6423 Doc: 40 Filed: 03/11/2022 Pg: 9 of 9