NOT RECOMMENDED FOR PUBLICATION

File Name: 24a0186n.06

No. 23-1291

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WENDY COCKRUN,

Plaintiff-Appellee,

v.

BERRIEN COUNTY, MICHIGAN, et al.,

Defendants-Appellants.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE WESTERN DISTRICT OF 

MICHIGAN

OPINION

Before: SILER, MATHIS, and BLOOMEKATZ, Circuit Judges.

SILER, Circuit Judge. In this interlocutory appeal from a partial denial of summary 

judgment, Defendants-Appellants Berrien County Jail officers (“Officers”) argue that they 

properly raised a qualified immunity defense, and that Plaintiff-Appellee Wendy Cockrun’s 

evidence did not create a genuine dispute of material facts to overcome summary judgment. But 

we do not linger on the merits of the case or the standard of qualified immunity: the issues 

presented can be answered solely on procedural grounds. We conclude that Officers failed to 

sufficiently assert qualified immunity in their motion for summary judgment, and therefore 

forfeited the defense. For that reason, we dismiss Officers’ summary judgment claim for want of 

jurisdiction. In the alternative, we hold that even if Officers did assert qualified immunity, we still 

would not have jurisdiction over their appeal because they only raised questions of fact instead of 

questions of law. 
No. 23-1291, Cockrun v. Berrien County

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I.

Cockrun was an inmate at the Berrien County Jail in Michigan. In her amended complaint,

she alleged that she was sexually assaulted by her roommate, Inmate Brooks, on multiple 

occasions; that she reported the assaults to Officers, who, in violation of her Eighth Amendment

rights, failed to protect her from Brooks; and that, in retaliation for her complaints and in violation 

of her First Amendment rights, Officers placed her in administrative segregation. She also alleged 

that Officers violated her Fourteenth Amendment due process interest in personal security and 

asserted a Monell claim against the county. In their answer, Officers denied all allegations. They 

also noted that Cockrun’s claims may be barred, in whole or in part, by qualified immunity.

Officers moved for summary judgment. Their brief in support of their motion for summary 

judgment included the following three mentions of qualified immunity: 

All Defendants deny the allegations in Plaintiff’s Complaint and have asserted 

multiple Affirmative Defenses including qualified immunity. More detailed factual 

information will be provided to the Court in the appropriate Argument sections of 

this Brief. 

As to the subjective component, the Individual Defendants are aware that for 

purposes of this Motion and any subsequent appeal on the qualified immunity pled 

by each of the Defendants, they must be willing to concede the most favorable view 

of the facts to the Plaintiff. 

In this case, each of the Defendants is asserting a qualified immunity defense. In 

those circumstances, the District Court should consider whether each individual 

Defendant had a sufficiently culpable state of mind. . . . Each officer’s circumstance 

is entitled to separate analysis. 

Officers provided no further discussion of qualified immunity.

In its opinion and order on Officers’ motion for summary judgment, the district court 

adopted the magistrate judge’s report and recommendation granting in part and denying in part 

Officers’ motion for summary judgment. It found Officers waived their qualified immunity 

defense because they raised it in only “a perfunctory manner, unaccompanied by some effort at 
No. 23-1291, Cockrun v. Berrien County

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developed argumentation.” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (citation 

omitted).

1

 The district court pointed out that Officers “failed to cite the legal standard for qualified 

immunity and did not address the elements of qualified immunity as they relate to each” Officer’s

actions. It declined to “‘put flesh on [the] bones’ of Defendants’ merely skeletal assertion of 

qualified immunity.” Id. at 996. 

The district court granted Officers’ summary judgment motion as to Cockrun’s First and 

Eighth Amendment claims against some individual Officers, her substantive due process claim 

against all individual Officers, and her claim against the county under Monell v. Department of 

Social Services, 436 U.S. 658 (1978). It denied summary judgment as to the First and Eighth 

Amendment claims against the remaining Officers, finding that genuine issues of material fact 

remained. 

Officers’ instant interlocutory appeal followed.

II.

Unlike other kinds of interlocutory appeal, we have jurisdiction over the interlocutory

appeal of the denial of qualified immunity that raises purely legal issues and review it de novo. 

28 U.S.C. § 1291; Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Leech v. DeWeese, 689 F.3d 538, 

542 (6th Cir. 2012). Cockrun argues that we do not have jurisdiction over Officers’ summary 

judgment arguments because they waived qualified immunity, and moreover, because their 

arguments concern “whether there exists a genuine issue of fact for trial” rather than an “abstract 

1 The district court used the word “waiver,” but this is more appropriately a “forfeiture” 

analysis. See Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17, 20 n.1 (2017) (“The terms 

waiver and forfeiture—though often used interchangeably by jurists and litigants—are not 

synonymous. Forfeiture is the failure to make the timely assertion of a right; waiver is the 

intentional relinquishment or abandonment of a known right.”) (alterations, internal quotations,

and citations omitted).
No. 23-1291, Cockrun v. Berrien County

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or pure legal issue.” Gregory v. City of Louisville, 444 F.3d 725, 742-43 (6th Cir. 2006) (quoting 

Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998)). 

III.

Officers allege that the district court erred in concluding that they failed to raise qualified 

immunity and accuse the district court of mischaracterizing the burden of proof with respect to 

qualified immunity. But the burden of proof of qualified immunity has little to do with the issue 

before us. Rather, at issue is Officers’ failure to raise a developed qualified immunity argument

before the district court.

Officers claim that their three mentions of qualified immunity were enough to raise the 

issue. But “an issue is deemed forfeited . . . if it is merely mentioned and not developed.” United 

States v. Clark, 469 F.3d 568, 569-70 (6th Cir. 2006); see also United States v. Sandridge, 385 

F.3d 1032, 1035-36 (6th Cir. 2004) (“It is not sufficient for a party to mention a possible argument 

in the most skeletal way, leaving the court to . . . put flesh on its bones.”) (internal quotations and 

citation omitted). And to raise qualified immunity, the “[d]efendants bear the initial burden of 

coming forward with facts to suggest that they were acting within the scope of their discretionary 

authority.” Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir. 1992). We have 

previously instructed district courts to “withhold judgment on issues not fully developed by the 

briefs or in the record. Issues adverted to in a perfunctory manner, unaccompanied by some effort 

at developed argumentation, are deemed waived.” Sandridge, 385 F.3d at 1035 (quoting Popovich 

v. Cuyahoga Cnty. Ct. of Common Pleas, 276 F.3d 808, 823 (6th Cir. 2002) (Ryan, J. concurring 

in part and dissenting in part)). Because Officers only mentioned qualified immunity in their 

motion for summary judgment in a perfunctory manner, devoid of applied facts or developed 

argumentation, they forfeited qualified immunity. 
No. 23-1291, Cockrun v. Berrien County

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We have affirmed a district court’s denial of qualified immunity in similar circumstances. 

For example, the defendants in Evans v. Vinson asserted the defense of qualified immunity to the 

district court “in a one-and-a-half page statement of the law with no attempt at argument, and they 

cited only the first prong of the test: whether their alleged conduct violated a constitutional right.” 

427 F. App’x 437, 447 (6th Cir. 2011). We concluded that defendants failed to argue that the 

rights at issue were not clearly established and therefore forfeited the defense. Id. And in Watkins 

v. Healy, the defendant “cursorily reference[d]” qualified immunity in a boilerplate paragraph of 

his Rule 12(b)(6) motion. 986 F.3d 648, 666 (6th Cir. 2021). We held that “[b]y failing properly

to assert qualified immunity in his Rule 12(b)(6) motion to dismiss, [the defendant] has forfeited 

this issue.” Id. at 667 (emphasis added); see also Ashford v. Univ. of Mich., 89 F.4th 960, 975 (6th 

Cir. 2024) (holding that defendants, who “made little effort to connect the facts in the record to 

[the] two-pronged test for qualified immunity,” forfeited their qualified immunity argument given 

their “scant treatment” of the issue); Pritchard v. Hamilton Twp. Bd. of Trs., 424 F. App’x 492, 

503 (6th Cir. 2011) (holding that the defendants forfeited qualified immunity when they “adverted 

to [it] in a perfunctory manner, unaccompanied by some effort at developed argumentation”) 

(internal quotations and citation omitted). 

In reply, Officers cite McNeal v. Kott for the contention that a defendant need not argue 

both elements of qualified immunity to avoid forfeiture. 590 F. App’x 566, 569 (6th Cir. 2014). 

But the procedural history in McNeal differs from the procedural history here in a crucial way: In 

McNeal, the defendants invoked qualified immunity in their first motion for summary judgment, 

and the court denied their argument on its merits. Id. After discovery, the defendants twice again 

invoked qualified immunity, and the district court again denied it on its merits. Id. The alleged 

forfeiture came when defendants declined to explicitly invoke qualified immunity in their 
No. 23-1291, Cockrun v. Berrien County

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objections to a magistrate judge’s report and recommendation. Id. But by that point, the plaintiff 

had multiple opportunities to review and respond to the defendants’ qualified immunity argument 

and—crucially—was not prejudiced by its absence. Id. Such was not the case here: Officers’

failure to articulate the qualified immunity argument in their motion for summary judgment meant 

that Cockrun was unable to fully respond to the argument, and the district court would have been 

forced to “put flesh” on the argument’s bones to determine its merits.2 See Sandridge, 385 F.3d at 

1036 (internal quotations and citation omitted); see also Wheatt v. City of E. Cleveland, 741 F. 

App’x 302, 305 (6th Cir. 2018) (“Consequently, they never challenged the plaintiffs to respond to 

a qualified-immunity claim; they did not compel the district court to decide the merits of a 

qualified-immunity dispute; and they did not preserve any substantive qualified-immunity 

question or error for appeal. That is forfeiture.”).

Officers alternatively argue that we may still choose to consider their forfeited qualified 

immunity argument because to do otherwise would be a miscarriage of justice. Although we have

discretion to consider a forfeited argument when not doing so would produce a 

plain miscarriage of justice, we have rarely exercised such discretion. Scottsdale Ins. Co. v. 

Flowers, 513 F.3d 546, 552 (6th Cir. 2008). This case, where Officers failed to show any cause 

for their failure to develop their qualified immunity argument, is not a compelling candidate for 

exercising that discretion.

2 Officers make much of the fact that Cockrun “responded” to their alleged invocation of 

qualified immunity. But when Cockrun responded to Officers’ motion for summary judgment, 

she was responding to what she thought Officers’ argument might be—she had no way of 

responding to the actual argument, because Officers did not make any argument. In any event, 

Cockrun should not be penalized for presenting a thorough counterargument to what she guessed 

Officers’ argument to be.
No. 23-1291, Cockrun v. Berrien County

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Accordingly, we affirm the district court’s conclusion that Officers forfeited qualified 

immunity by failing to develop the argument in their motion for summary judgment. Because 

Officers forfeited qualified immunity, their interlocutory appeal is simply a summary judgment 

argument over which we do not have jurisdiction. See Mitchell v. Forsyth, 472 U.S. at 530, 525

(holding that federal appellate courts have jurisdiction to hear interlocutory appeals challenging 

the denial of qualified immunity if the challenge raises legal questions).

IV.

Officers next ask us to conclude that there exists no genuine dispute of material fact as to 

Cockrun’s First and Eighth Amendment claims. Even if Officers had not forfeited qualified 

immunity, we still would not have jurisdiction to consider this question in an interlocutory appeal. 

“The Supreme Court has clearly held that a district court’s determination that there exists a triable 

issue of fact cannot be appealed on an interlocutory basis, even when that finding arises in the 

context of an assertion of qualified immunity.” Gregory, 444 F.3d at 742 (citing Johnson v. Jones, 

515 U.S. 304, 313 (1995) (“[A] defendant, entitled to invoke a qualified immunity defense, may 

not appeal a district court's summary judgment order insofar as that order determines whether or 

not the pretrial record sets forth a ‘genuine’ issue of fact for trial.”)). 

Officers point out that this court does have jurisdiction over pure questions of law. See 

Moldowan v. City of Warren, 578 F.3d 351, 369 (6th Cir. 2009). While true, this point does not 

get Officers far, because Officers only present questions of fact. For instance, in the Statement of 

Issues, they assert that the district court “erred when it found a genuine issue of material fact . . . 

based on Plaintiff’s inconsistent, self-serving deposition testimony and pleadings.” And in their 

brief, they argue that the district court “erred when it determined that Plaintiff raised evidence to 

create a genuine issue of material fact such that a reasonable juror could find in her favor.” Even 
No. 23-1291, Cockrun v. Berrien County

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in reply, Officers are still unable to pose a question of law. “[I]f what is at issue in the appeal is 

nothing more than whether the evidence could support a finding that particular conduct occurred,” 

as it is here, “there is no appellate jurisdiction because that question is inseparable from the merits 

of the plaintiff's claim.” Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (internal quotations 

and citation omitted); see also Harrison v. Ash, 539 F.3d 510, 517 (6th Cir. 2008) (“Thus, to the 

extent that the denial of qualified immunity is based on a factual dispute, such a denial falls outside 

of the narrow jurisdiction of this Court.”); Gregory, 444 F.3d at 743 (“To be clear, an appellant’s 

contention that the district court erred in finding a genuine issue of fact for trial is not the type of 

legal question which we may entertain on an interlocutory basis.”).

In their reply, Officers argue that the district court’s characterization of the basis for its 

ruling is not dispositive, and that we may exercise jurisdiction over the appeal to the extent it raises 

questions of law. See Moldowan, 578 F.3d at 371. But there are two issues with this argument: 

First, once again, Officers can point to no pure question of law for us to resolve.

3

 Even if we 

assume Officers properly raised qualified immunity below and on appeal, their argument still boils 

down to disputing the facts underlying Cockrun’s claims—which, again, this court cannot visit on 

interlocutory appeal.

Second, it is clear that the district court’s holding on these claims was focused on whether 

the record set forth genuine issues of fact for trial. In discussing Cockrun’s First Amendment 

3 To the extent that Officers attempt to blur the boundary between questions of law and fact, 

our opinion in DiLuzio v. Vill. of Yorkville is instructive:

These types of prohibited fact-based (evidence sufficiency) appeals challenge 

directly the plaintiff’s allegations (and the district court’s acceptance) of what 

actually occurred or why an action was taken or omitted, who did it, or nothing 

more than whether the evidence could support a jury’s finding that particular 

conduct occurred.

796 F.3d 604, 609 (6th Cir. 2015) (cleaned up).
No. 23-1291, Cockrun v. Berrien County

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claim, the district court held that summary judgment “must be denied because of genuine issues 

of material fact exist as to Defendants’ reasons for placing Plaintiff in administrative lockdown. 

The district court rightly characterized this dispute about Officers’ true motivation as a fact 

question and not a law question. And in discussing her Eighth Amendment claim, the district court 

held that “[v]iewing the evidence in the light most favorable to Plaintiff, the court concludes that 

reasonable jurors could find that [Officers] were aware that Plaintiff faced a substantial risk of 

harm and disregarded that risk by failing to take reasonable measures to abate it.” Despite 

Officers’ suggestion, the decision could not be characterized as raising questions of law. 

Moldowan, 578 F.3d at 371. 

Our jurisdiction ends once a defendant’s argument “drifts from the purely legal into the 

factual realm and begins contesting what really happened.” Berryman, 150 F.3d at 564-65. In 

their exhaustive merits-based arguments, Officers have drifted well into the factual realm. We 

therefore lack jurisdiction for two reasons: because of the forfeiture issue at the outset, and because 

aside from the forfeiture problem, Officers failed to articulate pure questions of law. 

We AFFIRM the district court’s conclusion that Officers forfeited their qualified 

immunity defense. We DISMISS Officers’ appeal of the denial of their motion for summary 

judgment on Cockrun’s First and Eighth Amendment claims for lack of jurisdiction.