Henricks v. Pickaway Correctional Institution, 782 F.3d 744

Henricks, an Ohio prisoner, alleges Eighth Amendment deliberate-indifference claims against Dr. Ida Gonzalez (medical director) and Officer Michael Maynard (correctional officer) arising from delayed treatment for appendicitis and subsequent nerve pain untreated by Neurontin.
Maynard delayed removal of restraints at the ER, allegedly worsening surgery and causing nerve damage; Gonzalez repeatedly refused to authorize Neurontin despite other doctors’ recommendations.
Henricks filed a pro se § 1983 complaint in 2008; most defendants were dismissed, leaving Maynard and Gonzalez. The defendants invoked qualified immunity in a motion to dismiss but did not press an administrative-exhaustion defense then and did not file a responsive answer.
After discovery, defendants moved for summary judgment asserting qualified immunity (both) and failure to exhaust (Gonzalez). Henricks moved to strike those affirmative defenses as waived for failure to plead them in a responsive pleading.
The magistrate judge (and district court on review) struck the affirmative defenses as waived and denied summary judgment on the merits, finding triable issues of fact on deliberate indifference. Defendants appealed solely the waiver of qualified immunity; the court entertained only that issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether qualified immunity was waived by failing to plead it in a responsive pleading	Henricks: defendants waived the defense by not asserting it in an answer and by litigating without it, causing prejudice	Maynard & Gonzalez: they preserved the defense by raising it in a motion to dismiss and through litigation; should not be barred	Court: Waiver affirmed — district court did not abuse discretion in finding defendants waived qualified immunity due to untimeliness and lack of excuse
Whether the PLRA exhaustion defense is waivable and was waived by Gonzalez	Henricks: Gonzalez waived exhaustion by failing to plead it	Gonzalez: exhaustion is mandatory and not waived; she raised it at summary judgment	Court: Declined to decide on appeal — no appellate jurisdiction over exhaustion-waiver ruling in this posture
Whether the appellate court may review waiver-of-qualified-immunity as collateral order	Henricks: waiver forecloses right not to stand trial; is appealable	Defendants: appeal premature/ interlocutory	Court: Jurisdiction exists — waiver denial is reviewable as collateral order akin to pretrial denial of qualified immunity
Whether sanctions should be imposed for frivolous appeal	Henricks: appeal frivolous, request sanctions	Defendants: appeal raised non-frivolous waiver issue	Court: Denied sanctions — appeal raised at least one non-frivolous, appealable issue

Mitchell v. Forsyth, 472 U.S. 511 (pretrial denial of qualified immunity is appealable as it protects against burdens of litigation)
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (collateral order doctrine)
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (standards for collateral-order appealability)
Summers v. Leis, 368 F.3d 881 (6th Cir.) (waiver analysis distinct from merits; district court decision on qualified immunity may be appealable)
English v. Dyke, 23 F.3d 1086 (6th Cir.) (qualified immunity waiver may apply only to the litigation stage where it should have been asserted)
Johnson v. Jones, 515 U.S. 304 (pretrial fact-dependent qualified-immunity rulings may be unreviewable on interlocutory appeal)
Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.) (immunity must be affirmatively pleaded; failure can work waiver)
Phelps v. McClellan, 30 F.3d 658 (6th Cir.) (failure to plead affirmative defenses generally results in waiver)
U.S. Fire Ins. Co. v. City of Warren, [citation="87 F. App'x 485"] (6th Cir.) (district court may presume waiver/ prejudice when defendant made no good-faith effort to raise defenses)
Smith v. Sushka, 117 F.3d 965 (6th Cir.) (district court has discretion to find no waiver when delay caused no unfair prejudice)