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RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0065p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

JOHN HENRICKS, 

Plaintiff-Appellee, 

v. 

PICKAWAY CORRECTIONAL INSTITUTION, et al., 

Defendants, 

IDA GONZALEZ; MICHAEL MAYNARD, 

Defendants-Appellants. 

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No. 13-4468 

Appeal from the United States District Court 

for the Southern District of Ohio at Columbus. 

No. 2:08-cv-00580—George C. Smith, District Judge. 

Argued: March 10, 2015 

Decided and Filed: April 8, 2015 

Before: SILER, ROGERS, and COOK, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Debra Gorrell Wehrle, OFFICE OF THE OHIO ATTORNEY GENERAL, 

Columbus, Ohio, for Appellants. John C. Camillus, LAW OFFICE OF JOHN C. CAMILLUS, 

LLC, Columbus, Ohio, for Appellee. ON BRIEF: Debra Gorrell Wehrle, OFFICE OF THE 

OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. John C. Camillus, LAW 

OFFICE OF JOHN C. CAMILLUS, LLC, Columbus, Ohio, Daniel R. Mordarski, LAW 

OFFICE OF DANIEL R. MORDARSKI, Columbus, Ohio, for Appellee. 

>
No. 13-4468 Henricks v. Pickaway Corr. Inst., et al. Page 2

_________________ 

OPINION

_________________ 

 ROGERS, Circuit Judge. John Henricks, an Ohio prisoner, filed a complaint under 

28 U.S.C. § 1983, alleging, as relevant to this appeal, that Dr. Ida Gonzalez, a doctor at his 

prison, and Officer Michael Maynard, a correctional officer, were deliberately indifferent to his 

medical needs in violation of the Eighth Amendment. After discovery, Dr. Gonzalez and Officer 

Maynard filed a motion for summary judgment arguing in part that Henricks had failed to 

exhaust his administrative remedies against Dr. Gonzalez and that both Dr. Gonzalez and Officer 

Maynard were entitled to qualified immunity. Upon Henricks’s motion, the district court struck 

both affirmative defenses because Dr. Gonzalez and Officer Maynard had failed to raise them in 

an answer earlier in the course of litigation. The district court found triable issues of fact as to 

Henricks’s claims against both Dr. Gonzalez and Officer Maynard and denied their motion for 

summary judgment. Dr. Gonzalez and Officer Maynard appeal the denial of summary judgment, 

arguing that they did not waive the exhaustion and qualified immunity defenses and that they are 

entitled to judgment as a matter of law on Henricks’s Eighth Amendment claims. We lack 

jurisdiction to consider the district court’s ruling as to the exhaustion requirement, and the 

district court did not abuse its discretion in holding that Dr. Gonzalez and Officer Maynard 

waived their qualified immunity defense, which renders the defendants’ other arguments moot. 

The following are the facts as alleged by Henricks. Henricks began experiencing the 

symptoms of acute appendicitis on August 19, 2006. The following day, upon the 

recommendation of Dr. Gonzalez, the medical director at Henricks’s prison, Henricks was sent to 

the Ohio State University Medical Center. At the emergency room, Officer Maynard, who had 

accompanied Henricks, refused to remove Henricks’s handcuffs and other restraints in spite of a 

physician’s request to do so. This caused a delay of approximately forty-five minutes while 

Officer Maynard and the physician argued. Eventually, Officer Maynard uncuffed Henricks and 

Henricks was admitted and underwent emergency surgery. The surgery—which Henricks 

alleges was made more extensive by Officer Maynard’s delay in removing the restraints—caused 

nerve damage to Henricks’s right leg.
No. 13-4468 Henricks v. Pickaway Corr. Inst., et al. Page 3

Henricks’s dispute with Dr. Gonzalez arises from Dr. Gonzalez’s consistent refusal to 

prescribe a medication called Neurontin for the pain caused by that nerve damage, in spite of the 

view of several other doctors, including specialists, that Neurontin was necessary to treat 

Henricks’s pain. Henricks first received a prescription for Neurontin on November 1, 2006. He 

requested that his dosage be increased on November 3, and on November 8 he met with Dr. 

Gonzalez, who discontinued the prescription on the basis that it would not be effective in treating 

Henricks’s pain. Starting in February 2007, neurologists recommended Neurontin for Henricks’s 

pain on multiple occasions, but Dr. Gonzalez never authorized it, even though at least one doctor 

explicitly noted that Neurontin was “wholly appropriate” and that Motrin, the medication that 

Henricks had been on, would not be effective. Henricks thus suffered unreduced pain resulting 

from his nerve damage during much of 2007. 

On June 17, 2008, Henricks filed a pro se complaint regarding various failures to provide 

proper medical care, naming multiple defendants, including Officer Maynard and Dr. Gonzalez. 

All defendants filed motions to dismiss, and, upon separate recommendations of a magistrate 

judge, the motions were granted in 2009 as to all defendants except Officer Maynard and Dr. 

Gonzalez. The motion to dismiss filed by Officer Maynard and Dr. Gonzalez invoked qualified 

immunity, although not the administrative exhaustion defense. In the portion of his report and 

recommendation addressing Officer Maynard and Dr. Gonzalez’s motion to dismiss, the 

magistrate judge concluded that Henricks had stated a colorable claim against those two 

defendants, but did not address qualified immunity. Officer Maynard and Dr. Gonzalez did not 

object to the Report and Recommendation or seek further consideration of their qualified 

immunity defense. They also did not file an answer to Henricks’s complaint, but they 

nonetheless litigated Henricks’s discovery requests in the ensuing years. The district court 

granted Henricks’s motion to appoint counsel on March 9, 2011, and counsel appeared for 

Henricks on July 27, 2011. Debra Gorrell Wehrle, the present counsel for Officer Maynard and 

Dr. Gonzalez, first appeared for those defendants shortly before, on June 29, 2011. She became 

lead counsel on September 20, 2012. 

 On May 29, 2013, after the close of discovery, Officer Maynard and Dr. Gonzalez filed a 

motion for summary judgment arguing that, on the facts in the record, they were entitled to 
No. 13-4468 Henricks v. Pickaway Corr. Inst., et al. Page 4

judgment as a matter of law. They further invoked the defense of qualified immunity for both 

defendants and the defense of failure to exhaust administrative remedies as to Dr. Gonzalez. 

Henricks filed a response, and on July 1, 2013, he also filed a motion to strike the defendants’ 

affirmative defenses on the ground that the defenses had been waived because the defendants had 

not asserted the defenses in a pleading. 

 On September 9, 2013, the magistrate judge addressed both the motion for summary 

judgment and the motion to strike (as well as several other non-dispositive motions) in a single 

Order and Report and Recommendation. The magistrate judge granted Henricks’s motion to 

strike the affirmative defenses of qualified immunity and failure to exhaust administrative 

remedies on the basis that Officer Maynard and Dr. Gonzalez had waived them by not asserting 

them in an answer and that permitting them to assert the defenses at such a late point in the 

litigation would unduly prejudice Henricks.1 The magistrate judge then found that material 

questions of fact precluded summary judgment in favor of either defendant. This was because, 

on the facts alleged by Henricks, a jury could find that both defendants were deliberately 

indifferent to his serious medical needs. The magistrate judge did not consider whether the 

affirmative defenses waived by the defendants would have otherwise protected them from suit. 

Officer Maynard and Dr. Gonzalez timely objected both to the magistrate judge’s order as to 

Henricks’s motion to strike and to his recommendation as to their motion for summary judgment. 

The district court affirmed the magistrate judge’s order and adopted his recommendation, 

following the magistrate judge’s reasoning and appending a paragraph explaining that, contrary 

to the defendants’ position, failure to exhaust administrative remedies under the Prison Litigation 

Reform Act was an affirmative defense that could be waived. Officer Maynard and Dr. 

Gonzalez now appeal. Henricks has moved for sanctions, arguing that the appeal was frivolous. 

 Only one issue raised in this interlocutory appeal is properly before us: whether the 

district court was correct to hold at the summary judgment stage that Officer Maynard and Dr. 

Gonzalez waived the affirmative defense of qualified immunity by failing to assert it in a 

responsive pleading. The district court’s holding that the defense was waived can be considered 

 1

In so doing the magistrate judge also denied a motion to file an answer instanter that Officer Maynard and 

Dr. Gonzalez had filed after Henricks’s motion to strike. Officer Maynard and Dr. Gonzalez do not argue on appeal 

that the magistrate judge ought to have granted their motion to file an extremely tardy answer. 
No. 13-4468 Henricks v. Pickaway Corr. Inst., et al. Page 5

an appealable final order for purposes of 28 U.S.C. § 1291, under which we have jurisdiction to 

review “final orders” of a district court, because it conclusively forecloses the defendants’ 

entitlement not to stand trial and is separate from the merits of Henricks’s claim. It is thus 

closely analogous to an appeal challenging the legal basis of a district court’s denial of a 

summary judgment motion invoking qualified immunity, which is an appealable final order. 

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). This jurisdictional conclusion is consistent with 

the analyses of the three circuits to have considered the issue. Eddy v. Virgin Islands Water and 

Power Auth., 256 F.3d 204, 209 (3d Cir. 2001); Pasco v. Knoblauch, 566 F.3d 572, 576–77 (5th 

Cir. 2009); Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 912–13 (7th Cir. 2011). 

 Although the district court held that Officer Maynard and Dr. Gonzalez had waived 

qualified immunity long before the conclusion of the case, the district court’s holding is a 

collateral order amounting to a final decision under Cohen v. Beneficial Industrial Loan Corp., 

337 U.S. 541, 546 (1949). Under the collateral doctrine, an order is appealable if it 

“conclusively determine[s] the disputed question, resolve[s] an important issue completely 

separate from the merits of the action, and [is] effectively unreviewable on appeal from a final 

judgment.” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 

(1993). Because qualified immunity insulates the defendant from the burdens of litigation as 

well as from liability, a district court’s denial of qualified immunity, “to the extent that it turns 

on an issue of law,” satisfies all three criteria. Mitchell, 472 U.S. at 526, 530. First, a pre-trial 

denial of qualified immunity is unreviewable after a final judgment because, after a trial, there 

will be no way to vindicate the defendant’s privilege not to stand trial in the first place. Id. at 

527. Second, the pre-trial denial of qualified immunity conclusively determines the defendant’s 

privilege to be free from, at the very least, the burdens of the next stage of litigation. Id.; see 

English v. Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994). Third, the legal analysis establishing that 

the defendant is not entitled to qualified immunity “is conceptually distinct from the merits of the 

plaintiff’s claim that his rights have been violated,” because, at the summary judgment stage, the 

court need determine no facts that are material to the merits of the dispute. Mitchell, 472 U.S. at 

527–28. 
No. 13-4468 Henricks v. Pickaway Corr. Inst., et al. Page 6

 These conditions are met whether the legal analysis requested of the appellate court 

focuses on the standards applicable to the merits of the qualified immunity determination, as in 

Mitchell, or on the standards applicable to a waiver determination, as here. A district court 

decision “on qualified immunity” determines “a claim of right that is separate from, and 

collateral to, rights asserted in the action,” even if the decision does not address the merits of 

qualified immunity at all but has the effect of denying qualified immunity to the defendants. 

Summers v. Leis, 368 F.3d 881, 886–87 (6th Cir. 2004). Because a waiver analysis virtually 

never turns on facts material to the merits of a plaintiff’s claim, it cannot fall into the category of 

qualified immunity appeals that ultimately depend on issues that are part of the plaintiff’s 

underlying claim and are thus unappealable. See Johnson v. Jones, 515 U.S. 304, 313–14 

(1995). Finally, a finding of waiver conclusively determines at least one part of a defendant’s 

qualified immunity defense because it always bars the defendant from asserting qualified 

immunity for at least one step of litigation. English, 23 F.3d at 1090. Therefore, the collateral 

order doctrine applies to a district court’s finding upon denying summary judgment to the 

defendant that the defendant has waived qualified immunity, and we have jurisdiction to consider 

this limited aspect of Dr. Gonzalez and Officer Maynard’s appeal. 

However, the district court did not abuse its discretion in holding that Dr. Gonzalez and 

Officer Maynard waived qualified immunity. In light of Officer Maynard and Dr. Gonzalez’s 

disregard for timeliness in asserting defenses, it was permissible for the district court to refuse to 

inconvenience itself and Henricks and further delay trial to make up for the defendants’ errors. 

 In the first place, Officer Maynard and Dr. Gonzalez’s failure to plead qualified 

immunity at the very least subjects them to the possibility of waiver. Officer Maynard and Dr. 

Gonzalez raised qualified immunity in their motion to dismiss, but not in any responsive 

pleading. “Since immunity must be affirmatively pleaded, it follows that failure to do so can 

work a waiver of the defense.” Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir. 1986). 

In fact, “[g]enerally, a failure to plead an affirmative defense . . . results in the waiver of that 

defense.” Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir. 1994). 

 Because Officer Maynard and Dr. Gonzalez have no reasonable explanation for their 

failure to plead qualified immunity and were very tardy in raising the defense, the district court 
No. 13-4468 Henricks v. Pickaway Corr. Inst., et al. Page 7

did not abuse its discretion in presuming prejudice to Henricks and finding waiver. A district 

court does not abuse its discretion when, even without a showing of prejudice, it finds that a 

defendant who has failed to show “that it even made a good faith effort to comply with the 

standard procedure for raising affirmative defenses” has waived its defense. U.S. Fire Ins. Co. v. 

City of Warren, 87 F. App’x 485, 491 (6th Cir. 2003); see also English, 23 F.3d at 1090. Finding 

waiver is particularly appropriate in such a situation because it can be inferred that the plaintiff 

would be unfairly prejudiced by permitting the defendant to tardily raise the defense. See 

Macurdy v. Sikov & Love, P.A., 894 F.2d 818, 824 (6th Cir. 1990). A failure, without good 

cause, to invoke what might otherwise appear to be an available affirmative defense might well 

lead the plaintiff to believe that the defendant does not plan on invoking it and to plan 

accordingly. U.S. Fire, 87 F. App’x at 491. Raising the defense after discovery would then 

unfairly prejudice the plaintiff by subjecting him to a defense he did not anticipate having to 

rebut. In this case, Officer Maynard and Dr. Gonzalez asserted an affirmative defense in a 

motion to dismiss but did not object when the magistrate judge ignored the defense and did not 

file an answer or other responsive pleading. Henricks could fairly conclude from this conduct 

that Officer Maynard and Dr. Gonzalez did not intend to assert the qualified immunity defense. 

 The district court was thus within its discretion in concluding that “[d]efendants’ 

contention that any prejudice to plaintiff would be avoided by reopening discovery is mistaken.” 

Adding further to the already lengthy time that the suit was pending may have caused relatively 

minor harm to Henricks, but there was at least a clear possibility of some harm. When the 

defendant is unable to offer any reasonable explanation for its tardiness in presenting a defense, 

finding waiver is not an abuse of discretion. U.S. Fire, 87 F. App’x at 491. The district court’s 

finding of likely prejudice and waiver in light of the defendants’ “fail[ure] to demonstrate that 

they acted with diligence in pursuing their affirmative defenses” was thus not an abuse of 

discretion.2

 2

The only explanation for tardiness offered by counsel for Officer Maynard and Dr. Gonzalez is that she 

was not counsel when the defendants failed to file an answer and did not realize that they had failed to do so until 

after discovery ended. This is hardly an excuse, however. Even leaving aside the tardiness of the defendants’ 

original counsel, their new counsel should have reviewed the docket relatively shortly after taking the case, and 

should thus have been aware that defendants’ answer was missing. Instead, she did nothing to assert the defense for 

approximately two years after becoming defendants’ counsel. 
No. 13-4468 Henricks v. Pickaway Corr. Inst., et al. Page 8

 This conclusion is consistent with our holding in Smith v. Sushka, 117 F.3d 965, 969 (6th 

Cir. 1997), that, because a delay in raising a defense did not cause “unfair prejudice” to the 

plaintiff, the district court could exercise its discretion to find no waiver. The holding in Smith

does not mean that finding waiver when there is no explicit showing of prejudice by the plaintiff 

is necessarily an abuse of discretion. Instead, as explained above, district courts have discretion 

to determine whether unexcused tardiness in raising a defense, under the facts of a particular 

case, is in itself sufficiently prejudicial to the plaintiff to warrant a finding of waiver. 

 The district court thus did not abuse its discretion in holding that Officer Maynard and 

Dr. Gonzalez had waived the defense of qualified immunity.3

 Officer Maynard’s and Dr. 

Gonzalez’s substantive arguments as to qualified immunity on appeal are therefore moot at this 

point. However, as counsel for Henricks agreed at oral argument, the district court on remand 

may determine that the defendants’ waiver of qualified immunity in pre-trial proceedings does 

not preclude the defendants from asserting the defense at trial. As we explained in English v. 

Dyke, a waiver “need not waive the defense for all purposes but would generally only waive the 

defense for the stage at which the defense should have been asserted.” English, 23 F.3d at 1090. 

The only remaining issue is whether the district court properly held that Dr. Gonzalez 

waived the exhaustion requirement of the Prison Litigation Reform Act by failing to assert it in a 

responsive pleading. We lack jurisdiction to answer this question because the district court’s 

resolution of this issue is neither a final order nor an appealable interlocutory order, nor is it 

inextricably linked to an issue over which we have jurisdiction. 

 First, the district court’s holding that under the Prison Litigation Reform Act the 

exhaustion requirement is an affirmative defense, and that Dr. Gonzales waived it, is not a final 

decision under 28 U.S.C. § 1291. The court’s holding obviously does not conclude litigation, 

and the exhaustion requirement, unlike qualified immunity, is not a protection from litigation. It 

is instead a barrier for the plaintiff to overcome. A ruling regarding exhaustion in this context is 

thus not a final order under the collateral order doctrine. 

 3

We do not address Officer Maynard and Dr. Gonzalez’s contention at oral argument that 42 

U.S.C. § 1997e(g) absolves the defendants of the need to file an answer raising their affirmative defenses. 

Because this argument was raised on appeal for the first time at oral argument, it has been forfeited on 

appeal. 
No. 13-4468 Henricks v. Pickaway Corr. Inst., et al. Page 9

 Second, the district court’s holding that the exhaustion requirement has been waived falls 

under neither of the jurisdictional categories of 28 U.S.C. § 1292. It does not relate to an 

interlocutory order or decree, § 1292(a), and it has not been certified for appeal by the district 

court, § 1292(b). 

 Finally, this issue is not linked closely enough to the issue of whether qualified immunity 

was waived to permit the panel to exercise pendent appellate jurisdiction over it. “[P]endent 

[appellate] jurisdiction may be exercised only when the immunity issues absolutely cannot be 

resolved without addressing the nonappealable collateral issues.” Archie v. Lanier, 95 F.3d 438, 

443 (6th Cir. 1996). That is not the case here. While the same waiver standard might apply to 

the two issues, there is no need to resolve both issues at once, and they are not logically 

connected. We therefore lack jurisdiction to decide whether the district court correctly held that 

Dr. Gonzalez waived the exhaustion defense. 

 Although Dr. Gonzalez and Officer Maynard’s appeal must fail, we decline to impose 

sanctions pursuant to Henricks’s motion, because the appeal was not entirely frivolous. The 

defendants’ opening brief was not a model of clarity and may have raised frivolous arguments 

regarding exhaustion and the merits of the qualified immunity analysis—arguments we do not 

address here. However, the brief did raise a non-frivolous issue over which we have jurisdiction: 

whether the district court correctly ruled that the defendants had waived their qualified immunity 

defenses. 

 For the foregoing reasons, the district court’s denial of summary judgment to Officer 

Maynard and Dr. Gonzalez is AFFIRMED, and Henricks’s motion for sanctions is DENIED.