Wendy Cockrun v. Berrien Cnty., Mich.Wendy Cockrun v. Berrien Cnty., Mich.
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.
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
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.
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.
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
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.
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
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
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.
Notes
796 F.3d 604, 609 (6th Cir. 2015) (cleaned up).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.