1 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

_________________

J OHN H ENRICKS , Plaintiff-Appellee ,

v

.

P ICKAWAY C ORRECTIONAL I NSTITUTION , et al., Defendants ,

I DA G ONZALEZ ; M ICHAEL M AYNARD , Defendants-Appellants

. ┐ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 13-4468

Appeal from the United St ates 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, a nd COOK, Circuit Judges.

_________________ COUNSEL

ARGUED: Debra Gorrell Wehrle, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. John C. Ca millus, 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, Colum bus, 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. J ohn Henricks, an Ohio pris oner, filed a complaint under 28 U.S.C. § 1983, alleging, as releva nt 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 Amendmen t. After discovery, Dr. Gonzalez and Officer Maynard filed a motion for summary judgment ar guing in part that He nricks had failed to exhaust his administrative remedies against Dr. Gonzalez and that both Dr. Gonzalez and Officer Maynard were entitled to qualified immunity. U pon Henricks’s motion, the district court struck
both affirmative defenses because Dr. Gonzalez a nd Officer Maynard had failed to raise them in
an answer earlier in the course of litigation. The district court f ound triable issues of fact as to Henricks’s claims against both Dr. Gonzalez a nd 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 an d qualified immunity defenses and that they are entitled to judgment as a matter of law on He nricks’s Eighth Amendmen t 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 Henr icks. Henricks began experiencing the symptoms of acute appendicitis on August 19, 2006. The following day, upon the recommendation of Dr. Gonzalez, th e 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 de lay of approximately forty-five minutes while Officer Maynard and the physicia n argued. Eventually, Officer Maynard uncuffed Henricks and Henricks was admitted and underwent emergenc y surgery. The surgery—which Henricks alleges was made more extensive by Officer Ma ynard’s delay in removi ng 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 da mage, in spite of the view of several other doctors, including specialists, that Ne urontin 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 Nove mber 3, and on November 8 he met with Dr. Gonzalez, who discontinued the pres cription on the basis that it woul d not be effective in treating Henricks’s pain. Starting in February 2007, ne urologists recommended Neur ontin for Henricks’s pain on multiple occasions, but Dr. Gonzalez neve r authorized it, even though at least one doctor explicitly noted that Neurontin was “wholly a ppropriate” and that Motrin, the medication that Henricks had been on, would not be effective. Henricks thus su ffered unreduced pain resulting from his nerve damage during much of 2007.
On June 17, 2008, Henricks filed a pro se compla int 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 Offi cer Maynard and Dr. G onzalez invoked qualified immunity, although not the administrative exhausti on defense. In the po rtion of his report and recommendation addressing Officer Maynard a nd Dr. Gonzalez’s motion to dismiss, the magistrate judge concluded that Henricks ha d stated a colorable claim against those two defendants, but did not address qualified immun ity. Officer Maynard an d Dr. Gonzalez did not object to the Report and Recommendation or seek further considerati on 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 couns el on March 9, 2011, and counsel appeared for Henricks on July 27, 2011. Debra Gorrell Wehrle, the present counsel fo r Officer Maynard and Dr. Gonzalez, first appeared for those defenda nts shortly before, on June 29, 2011. She became lead counsel on September 20, 2012.
On May 29, 2013, after the close of discover y, Officer Maynard and Dr. Gonzalez filed a motion for summary judgment argui ng that, on the facts in the r ecord, they were entitled toNo. 13-4468 Henricks v. Pickaway Corr. Inst., et al. Page 4

judgment as a matter of law. They further invo ked 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 defens es 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 se veral other non-dispositiv e motions) in a single Order and Report and Recommenda tion. 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 perm itting 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 woul d 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 recommen dation as to their motion for summary judgment. The district court affirmed the magistrate judge’s order and adopt ed his recommendation, following the magistrate judge’s reasoning and a ppending a paragraph expl aining that, contrary to the defendants’ position, failure to exhaust ad ministrative remedies unde r the Prison Litigation
Reform Act was an affirmative defense that could be waived. O fficer Maynard and Dr. Gonzalez now appeal. Henricks has moved for sa nctions, arguing that th e appeal was frivolous.
Only one issue raised in this interlocutor y appeal is properly be fore us: whether the
district court was correct to hold at the summary judgment stag e that Officer Maynard and Dr. Gonzalez waived the affirmative defense of qua lified 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. Gonz alez 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 dist rict court, because it conclusi vely 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 ch allenging 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 jurisdic tional 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 O fficer 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 or der is appealable if it “conclusively determine[s] the disputed questi on, resolve[s] an import ant issue completely separate from the merits of th e action, and [is] effectively unre viewable 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,” satisfi es all three criteria. Mitchell , 472 U.S. at 526, 530. First, a pre-trial denial of qualified immunity is unreviewable afte r a final judgment because , after a trial, there will be no way to vindicate the defendant’s privile ge not to stand trial in the first place. Id. at 527. Second, the pre-trial denial of qualified imm unity 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 ha ve been violated,” because, at the summary judgment stage, the
court need determine no facts that are mate rial 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 ap plicable to a waiver determina tion, as here. A district court decision “on qualified immunity” determines “a cl aim of right that is separate from, and collateral to, rights asserted in the action,” even if the decisi on does not address the merits of qualified immunity at all but ha s the effect of denyi ng qualified immunity to the defendants.
Summers v. Leis , 368 F.3d 881, 886–87 (6th Cir. 2004). Beca use a waiver analysis virtually never turns on facts material to the merits of a pl aintiff’s claim, it cannot fall into the category of qualified immunity appeals that ultimately depe nd on issues that are pa rt 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 ba rs the defendant from asserting qualified immunity for at least on e 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. Gon zalez and Officer Maynard’s appeal.

However, the district court did not abuse it s discretion in holding th at Dr. Gonzalez and Officer Maynard waived qualified immunity. In light of Officer Mayn ard and Dr. Gonzalez’s disregard for timeliness in asserti ng 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 subj ects them to the possibility of waiver. Officer Maynard and Dr. Gonzalez raised qualified immun ity in their motion to dismi ss, 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 affirm ative 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 courtNo. 13-4468 Henricks v. Pickaway Corr. Inst., et al. Page 7

did not abuse its discretion in pr esuming prejudice to Henricks a nd finding waiver. A district court does not abuse its discretion when, even wit hout 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 de fendant 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 defe ndant does not plan on invoking it and to plan accordingly. U.S. Fire , 87 F. App’x at 491

. Raising the defense afte r 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 ma gistrate judge ignored the defense and did not
file an answer or othe r responsive pleading. Henr icks could fairly conclude from this conduct that Officer Maynard and Dr. Gon zalez did not intend to assert the qualified immunity defense.

The district court was thus within its di scretion in concluding that “[d]efendants’ contention that any prejudice to pl aintiff would be avoided by reopeni ng discovery is mistaken.” Adding further to the already le ngthy time that the suit was pendi ng may have caused relatively minor harm to Henricks, but ther e was at least a clear possibili ty of some harm. When the defendant is unable to offer any reasonable explanation for its tard iness 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 pu rsuing their affirmative defenses” was thus not an abuse of
discretion. 2

2 The only explanation for tardiness offered by counse l for Officer Maynard and Dr. Gonzalez is that she was not counsel when the defendants failed to file an answ er and did not realize that they had failed to do so until after discovery ended. This is hardly an excuse, howeve r. 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 consis tent 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 pr ejudice by the plaintiff is necessarily an abuse of discre tion. Instead, as explained above, district courts have discretion
to determine whether unexcused tardiness in rais ing a defense, under the facts of a particular case, is in itself sufficientl y prejudicial to the plaintiff to warrant a finding of waiver.

The district court thus did not abuse its discretion in hol ding 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 di strict court on remand may determine that the defendants’ waiver of qualified immunity in pre-trial proceedings does not preclude the defendants from asserting th e 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 de fense should have been asserted.” English , 23 F.3d at 1090.
The only remaining issue is whether the distri ct court properly held that Dr. Gonzalez waived the exhaustion requirement of the Prison L itigation Reform Act by failing to assert it in a responsive pleading. We lack jurisdiction to answ er 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 hol ding obviously does not conclude litigation, and the exhaustion requirement, unlike qualified imm unity, 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 th e 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 th eir affirmative defenses. Because this argument was raised on appeal for the fi rst 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 jurisdictiona l categories of 28 U.S.C. § 1292. It does not relate to an interlocutory order or decree, § 1292(a), and it has not been certif ied for appeal by the district court, § 1292(b).
Finally, this issue is not li nked 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 immun ity issues absolutely cannot be resolved without addressing the nona ppealable collate ral 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 c ourt 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 meri ts 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 correc tly ruled that the defendants had waived their qualified immunity
defenses.
For the foregoing reasons, the district cour t’s denial of summary judgment to Officer Maynard and Dr. Gonzalez is AFFIRMED , and Henricks’s motion for sanctions is DENIED

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