Certiorari granted by Supreme Court, January 13, 2023 Remanded and va cated by Supreme Court, May 25, 2023
UN PUBLISHED
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 )

A rgued : January 2 5 , 2022 Decided: March 11, 2022

Before KING and RUSHING, Circuit Judges , and David J. N OVAK , United States District Judge for the Eastern District of Virginia, sitting by designation

.
Dismissed by unpublished opinion . Judge King wrote the opinion, in whic h Judge Rushing and Judge Novak joined. USCA4 Appeal: 21-6423 Doc: 40 Filed: 03/11/2022 Pg: 1 of 92 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. Fros h, 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Unpublished opinions are not binding precedent in this circuit.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 93 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 content ion 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 tha t occurred o n September 30, 2013, at the Maryland Reception, Diagnostic & Classification Cente r , 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 w hen the guards entered his cel l

. The assailants promptly grabbed Younger and threw him from his b u nk to the concrete
floor. The y assaulted Younger b y 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. S everal months after USCA4 Appeal: 21-6423 Doc: 40 Filed: 03/11/2022 Pg: 3 of 94 the incident , Younger was flown to a hospital for treatment of the injuries he sustained to his head and leg. T he prison guards who executed the attack on Younger and the other
inmates were criminally convicted for their actions, a nd 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 PLR A — before initiating his § 1983 action

. See 42 U.S.C. § 1997e(a) . Shortly thereafter, on December 19, 2019, t he 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 remed y identified by Dupre e 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 95 The litigation thereafter proceeded to the 10

- day jury trial

. O n February 4, 2020,
the jury returned its verdict in favor of Younger, finding Dupree and four of his
codefendants liable under § 1983 for violat ing the Fourteenth Amendment ’s due process protections

. 1 The jury awarded Younger the sum of $700,000 in damages , and t he 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 n ot 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 Punishme nt 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 96 Corp. , 51 F.3d 1229, 1237 (4th Cir. 1995)

. W e 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 with in the scope of our Chesapeake

Varghese 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 a fter 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 conced es 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 acknowledge s 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 post

trial motio n
. ” 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 97 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 distri ct 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 42 3

- 27 (Motz, J., concurring in part and dissenting in part )

. Th at
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 i n 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 “ t he 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, Dupre e’s lawyer conceded that the Varghese decision is “controlling

. ” B ut when asked if he wished to pursue an en banc rehearing in this appeal to revisit ou r 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 98 R elying 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 unfai r 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 appeal s , the Second, Third , Sixth, Seventh , Ninth , Tenth, D

. C

. , and Federal C ircuits 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 C ircuits , 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 99 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. Taslim i , 998 F.3d 648, 654 (4th Cir. 2021). We must therefore adhere to our Chesapeake

- Varghese precedent, which can only be altered by this C ourt 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 post

trial motion i s a purely legal one. See Varghese , 424 F.3d at 421 , 423 ( quoting Chesapeake , 51 F.3d at 1237 ). B ecause 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