University of Michigan Law Quad

As a young attorney back in the early-1990s, I worked for a Detroit law firm and moonlighted as an adjunct professor at the University of Detroit Mercy. The adjunct instructor gig was made possible by my willingness to teach federally mandated law courses to female prisoners at the Scott Correctional Facility in Plymouth, MI.  One of their chief complaints: sexual assaults by the guards.

The abuse was so common at Scott Correctional, the inmates initiated a lawsuit back in 1996 that eventually resulted in a $15 million jury verdict in the Washtenaw County Circuit Court.  It took until 2008 for the inmates to get their verdict and their vindication.

Earlier this week, UM Law graduate David Mills, a Cleveland, Ohio solo practitioner who's office is his kitchen table and who's mother is his paralegal, had a jury verdict reinstated by the SCOTUS in a prison guard assault case.  Mills filed a suit in federal court on behalf of Michelle Ortiz alleging that she was sexually assaulted during her one-year sentence in an Ohio penitentiary.  Ortiz alleged that she promptly reported the assault and was rewarded with a second assault the very next evening, followed by a stint in solitary confinement.

Mills' suit was a "section 1983" civil rights case which alleged that a state actor, the prison's case manager, failed to take steps sufficient to protect Ortiz's safety.  The jury awarded Ortiz $625,000, but that verdict was reversed on appeal by a panel of the Sixth Circuit Court of Appeals.

Ortiz was granted certiorari by SCOTUS to determine the procedural issue of whether a defendant that loses a motion for summary judgment, brought early in the case, can appeal a trial court's dispositive decision after a jury verdict on the merits of the case.  Luckily for Attorney Mills, the federal circuit courts of appeal are divided on this issue.

SCOTUS has now ruled that a litigant cannot wait until after a trial to appeal such a dispositive decision; the appeal must be taken interlocatory (in the middle of the case) in order for the issue to be properly preserved.

From time to time, this blog takes note of some of the problems and peculiarities arising from keeping millions of citizens incarcerated.  Obviously, in our free society, you are not free to break the law.  If you do, a stint in prison can be the result.  In the prison business, however, there are cases of clear-cut abuse.  Paying your debt to society should not equate to torture at the hands of the state.

In Ortiz, the prison guard eventually became the prisoner.  Just as Michiganders did in the Scott Correctional case, Ohioans can pick-up the tab for the incarcerated, and for the abuser's wrongful deeds.

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