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Ann Arbor — A high-profile lawsuit alleging the state failed to protect teen inmates from sexual assault is advancing on a different front.

Michigan’s Court of Appeals last month rejected on technical issues a lawsuit filed on behalf of several John Does that charged the state with failing to protect teen inmates, sentenced as adults, from rape, assault and harassment by adult prisoners and, in some cases, prison staff.

The suit was sent back to Washtenaw County Trial Judge Carol Kuhnke, who on Thursday allowed the lawsuit to proceed without 10 John Does, whose court filing was deemed sullied by a failure to disclose civil litigation involving one of them — one of two problems the Court of Appeals found.

Dropping the 10 inmates left eight other male prisoners and one Jane Doe inmate free to proceed with the litigation, Kuhnke ruled. Michigan Assistant Attorney General Mark Donnelly argued vehemently against the judge’s decision to allow the plaintiffs to file an amended complaint, saying the Court of Appeals’ intention was that the entire case be dismissed.

“We’ve spent two years, spent millions of dollars (addressing) this case ...,” Donnelly said. “The Court of Appeals said this ... action has to be dismissed. ... It’s over. The case can’t be amended.”

The state Court of Appeals ruled prisoners are not protected by Michigan’s Elliott-Larsen Civil Rights Act that prohibits discrimination based on “religion, race, color, national origin, age, sex, height, weight, familial status, or marital status.”

A 1999 amendment to the law excluded “an individual serving a sentence of imprisonment in a state or county correctional facility” from the anti-bias protections.

“They put all their chips in that bag (Elliott-Larsen),” Donnelly said of the plaintiffs. “They lost. It’s over.”

Deborah LaBelle, one of the attorneys representing the anonymous prisoners, disagreed.

“The court has the authority to allow an amendment,” she said. “It happens all the time.”

Kuhnke allowed the remaining plaintiffs to continue the lawsuit because they were added to the complaint after the initial disclosure. In addition, the anonymous plaintiffs were in prison under the Holmes Youthful Trainee Act — a program that allows teens tried as adults to serve a prison term without having a conviction on their record — so they may be protected under the state’s anti-discrimination law.

The issue is likely to be taken up eventually by the Michigan Supreme Court since the Court of Appeals decision in August has been appealed by the plaintiffs’ attorneys.

jlynch@detroitnews.com

(313) 222-2034

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