Ledura Watkins v. Robert Healy

RECOMMENDED FOR PUBLICATION

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

File Name: 21a0020p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

LEDURA WATKINS,

│

Plaintiff-Appellee, │

> No. 20-1074

│

v. │

│

ROBERT H. HEALY, in his individual capacity, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Flint.

No. 4:17-cv-13940—Matthew F. Leitman, District Judge.

Argued: December 2, 2020

Decided and Filed: January 28, 2021

Before: MOORE, GILMAN, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Davidde A. Stella, WAYNE COUNTY CORPORATION COUNSEL, Detroit,

Michigan, for Appellant. Wolfgang Mueller, MUELLER LAW FIRM, Novi, Michigan, for

Appellee. ON BRIEF: Davidde A. Stella, WAYNE COUNTY CORPORATION COUNSEL,

Detroit, Michigan, for Appellant. Wolfgang Mueller, MUELLER LAW FIRM, Novi, Michigan,

for Appellee.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. In 1976, 19-year-old Ledura Watkins was

convicted of the murder of Yvette Ingram and sentenced to life in prison without the possibility

No. 20-1074 Watkins v. Healy Page 2

of parole. The State of Michigan’s case against Watkins hinged on a begrudged schoolfellow

and a single hair: Watkins’s 20-year-old high school classmate Travis Herndon testified that he

and Watkins robbed and murdered Ingram together, and Detroit Police Department Evidence

Technician Ronald Badaczewski testified that a hair found on Ingram’s clothing matched a hair

sample of Watkins. After Watkins’s conviction, Herndon repeatedly recanted. In sworn

affidavits, letters, and testimony, Herndon continuously attested that Wayne County Prosecutor

Robert H. Healy and Detective Neil Schwartz threatened to charge him with Ingram’s murder

and another unrelated murder if Herndon did not tape a statement that implicated Watkins and

testify to that effect at Watkins’s trial. Yet Watkins’s efforts to overturn his conviction were of

no avail for four decades. In January 2017, Watkins presented to the state trial court new

evidence that Badaczewski’s hair analysis methods were seriously flawed. Based on this new

evidence, the state trial court dismissed the case against Watkins without prejudice.

In December 2017, Watkins filed a 42 U.S.C. § 1983 suit against Healy, the estate of

Schwartz, Badaczewski, and the City of Detroit. Healy responded with a Federal Rule of Civil

Procedure 12(b)(6) motion to dismiss. The district court denied Healy’s motion, and this appeal

ensued. Although we lack appellate jurisdiction to consider most of Healy’s arguments, we hold

that Healy is not entitled to absolute immunity for his alleged actions and that Healy has forfeited

the issue of qualified immunity at this stage of the suit. Accordingly, we AFFIRM.

I. BACKGROUND

On September 6, 1975, schoolteacher and drug dealer Yvette Ingram was robbed and shot

dead in her Detroit home. R. 30 (Am. Compl. at 4) (Page ID #7490). 1 The Detroit Police

Department (“DPD”) had no leads on Ingram’s murder until October 14 of that year, when 20-

year-old Travis Herndon was arrested for an unrelated armed robbery. Id. at 5 (Page ID #7491).

1Because this is a review of the district court’s denial of a motion to dismiss for failure to state a claim

under Rule 12(b)(6), we must “construe the complaint in the light most favorable to the plaintiff, accept all well-

pleaded factual allegations as true, and draw all reasonable inferences in [the plaintiff’s] favor.” Waskul v.

Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 440 (6th Cir. 2020). Accordingly, we draw the background

section largely from Watkins’s amended complaint, R. 30 (Am. Compl. at 1) (Page ID #7487), and we acknowledge

where Healy concedes Watkins’s allegations.

Healy observes that Ingram was a “high school teacher and part-time drug dealer” and that Ingram was

murdered on September 6, 1975. Appellant’s Br. at 4.

No. 20-1074 Watkins v. Healy Page 3

While in custody, Herndon told a police officer that 19-year-old Ledura Watkins robbed and

killed Ingram on the orders of Gary Vazana, a corrupt police officer and drug dealer. Id.2 Days

later, Robert H. Healy—an Assistant Prosecuting Attorney for Wayne County—and Neil

Schwartz—a DPD Sergeant—interrogated Herndon about the Ingram murder. Id. at 2–3, 5

(Page ID #7488–89, 7491). Herndon told a different story to Healy and Schwartz; Herndon now

asserted that both Watkins and Herndon, acting on Vazana’s orders, drove Vazana’s car to

Ingram’s home and “used Vazana’s pistol to kill Ingram.” Id. at 6 (Page ID #7492).3 At some

point, Healy left the interrogation room before returning and passing a note to Schwartz.

Schwartz read the note and purportedly handed it to Herndon. Id. “The note indicated that

Vazana had been found shot to death in his residence.” Id. Healy left the room again. Id. at 7

(Page ID #7493).4

Schwartz apparently “attempted to have Herndon make a tape-recorded statement

implicating [] Watkins.” Id. But Herndon allegedly changed his tune for a third time:

Herndon specifically told S[chwartz] that his earlier statement about Ledura

Watkins’[s] involvement was not true. Herndon told S[chwartz] that Vazana

drove Herndon to Yvette Ingram’s house and robbed and killed her, with Vazana

shooting Ingram twice in the head while she was on her bed. Herndon

specifically told S[chwartz] that Watkins was not involved in the Yvette Ingram

murder.

Id. Schwartz then reportedly joined Healy outside the interrogation room, where “H[ealy] and

S[chwartz] conspired and agreed to frame [Watkins] by fabricating evidence that Herndon and

2Healy accepts that “Herndon voluntarily told HPPD personnel, including a Detective Donald Roberts

(deceased), that . . . Watkins had murdered Ingram on the orders of a corrupt Highland Park police officer named

Gary Vazana.” Appellant’s Br. at 4–5. Healy contends that Vazana was “[a]ssigned to Highland Park High School

beginning in 1970 or 1971 [and] became acquainted with both Herndon and Watkins, who were both students

there.” Id. at 5.

3Healy confirms that, at this point in the interrogation, “Herndon identified Vazana as the organizer,

Watkins as the murderer, and himself as the accomplice.” Appellant’s Br. at 6.

4Healy affirms that “[a]t some point during the day, [] Healy returned briefly to the room and handed

Sergeant Schwartz a note indicating that Vazana had been killed.” Appellant’s Br. at 7. Healy argues, however, that

Schwartz did not show the note to Herndon, contrary to Watkins’s allegations. Id.

No. 20-1074 Watkins v. Healy Page 4

Watkins killed Yvette Ingram.” Id.5 Healy and Schwartz allegedly returned to the interrogation

room, where the following apparently transpired:

H[ealy] told Herndon that he and S[chwartz] wanted Ledura Watkins for the

Ingram murder because they believed he was involved and that he likely

murdered Gary Vazana. [] Herndon again told H[ealy] and S[chwartz] that

Watkins had nothing to do with the murder, and that Herndon and Vazana killed

Ingram. H[ealy] and S[chwartz] threatened Herndon that they would charge

Herndon with the Ingram murder unless he implicated Watkins in the murder.

H[ealy] stated he would grant Herndon immunity if he testified against Watkins.

[] H[ealy] and S[chwartz] also threatened to charge Herndon with the recent

murder of Jr. Cunningham, as Herndon was the last individual who was seen with

Cunningham before his murder.

Id. at 7–8 (Page ID #7493–94). Herndon—who purportedly “bore a grudge against Watkins and

believed that Watkins had recently fired shots at Herndon while Herndon was out of jail on

bond”—acceded. Id. at 8 (Page ID #7494). Schwartz tape-recorded Herndon, who “implicated

Watkins in Yvette Ingram’s murder[,]” id., and narrated how he and Watkins robbed and killed

Ingram on Vazana’s orders, R. 34-8 (Taped Statement at 2–3) (Page ID #7973–74).

On October 22, 1975, Schwartz filed a warrant request for Watkins with the Wayne

County Prosecutor’s Office. R. 30 (Am. Compl. at 10) (Page ID #7496); R. 34-9 (Warrant Req.

at 2) (Page ID #7982). Herndon’s tape-recorded statement was the “sole basis for probable cause

for Watkins’[s] arrest and continued detention, as there was no other evidence linking Watkins to

the crime.” R. 30 (Am. Compl. at 9) (Page ID #7495).6 Watkins was arrested that same day. Id.

at 11 (Page ID #7497).

Watkins’s trial commenced on March 8, 1976. Consistent with his tape-recorded

statement, Herndon testified that both he and Watkins killed Ingram. Id. at 13–15 (Page ID

#7499–501); R. 34-16 (Trial Tr. Part 1 at 379–584) (Page ID #8161–8365). DPD evidence

5Healy portrays the conversation between Schwartz and Healy outside the interrogation room as follows:

“At some point after Herndon implicated Watkins, Sergeant Schwartz informed Defendant-Appellant Assistant

Prosecuting Attorney Robert H. Healy of these statements. APA Healy came over to speak with Sergeant Schwartz

and Herndon about the immunity issue [i.e., whether Herndon would be granted immunity for Ingram’s murder in

exchange for testifying against Watkins] and then left again.” Appellant’s Br. at 6.

6Healy asserts that Schwartz submitted a warrant request for Watkins “on the basis of Herndon’s

statements[.]” Appellant’s Br. at 7.

No. 20-1074 Watkins v. Healy Page 5

technician Ronald Badaczewski testified that a single hair on Ingram’s pants “could” have a

“common origin” with a sample supposedly taken from Watkins.7 R. 30 (Am. Compl. at 15–16)

(Page ID #7501–02); R. 34-16 (Trial Tr. Part 2 at 669–814) (Page ID #8420–544). Herndon

supplied the sole eyewitness testimony that implicated Watkins in Ingram’s murder, and the lone

hair was the only physical evidence linking Watkins to the scene of the crime. R. 30 (Am.

Compl. at 15) (Page ID #7501).8 Watkins was convicted of first-degree murder on March 16,

1976 and sentenced to life in prison without the possibility of parole. Id. at 18–19 (Page ID

#7504–05); R. 34-17 (Jury Verdict at 3) (Page ID #8645); R. 34-18 (Sent’g Tr. at 3) (Page ID

#8653).

Herndon repeatedly recanted his testimony in affidavits, letters, and at evidentiary

hearings.9 But Watkins’s many appeals and post-conviction proceedings10 yielded no relief until

7Prior to the trial, Badaczewski had produced a four-page lab report that concluded that hair samples

purportedly procured from Watkins and Herndon were “microscopically similar and could have a common origin

with several unknown hairs” on Ingram’s pants. R. 30 (Am. Compl. at 12) (Page ID #7498). Watkins alleges that

Badaczewski’s lab report was not turned over to Watkins’s defense team until 2012. Id. at 24 (Page ID #7510).

8Healy points out that other witnesses testified at Watkins’s trial. See Appellant’s Br. at 9–13. He is

correct. But the trial transcript reveals that the other witnesses supplied evidence of how the DPD handled the crime

scene and hair samples; how Herndon first told the police that he had information about Ingram’s murder; and that

Watkins knew Vazana, who, again, was a drug-dealing police officer whom the DPD assigned to Herndon and

Watkins’s school. Only Herndon’s and Badaczewski’s testimony linked Watkins to the scene of the crime.

9On June 12, 1980, Herndon signed two affidavits, one of which recanted his trial testimony and implicated

only Vazana in Ingram’s murder. R. 30 (Am. Compl. at 19) (Page ID #7505); R. 34-24 (Herndon 1980 Aff. 1 at 5–

8) (Page ID #8719–22). About three weeks later, Watkins filed a motion in state court for a new trial based on

Herndon’s affidavits. R. 30 (Am. Compl. at 19) (Page ID #7505); R. 34-24 (Mot. New Trial at 1–3) (Page ID

#8716–18). The court held an evidentiary hearing on October 22 of that year, during which Herndon “recanted his

earlier trial testimony[,]” “stated that [Watkins] did not commit the murder of Yvette Ingram[,]” and “implicated

Vazan[a][.]” R. 34-26 (1981 Op. at 2) (Page ID #8731); R. 30 (Am. Compl. at 19) (Page ID #7505). The court

denied Watkins relief, reasoning that Badaczewski’s expert testimony that “one hair” taken from Ingram’s pants

matched Watkins served as additional grounds for Watkins’s conviction, R. 34-26 (1981 Op. at 3) (Page ID #8732),

and that “the recanting affidavits and evidentiary hearing testimony of Herndon’s [were] lacking in

trustworthiness[,]” id. at 5 (Page ID #8734).

Since then, Herndon has recanted his trial testimony on at least three more occasions via two letters to

Michigan judges and another affidavit. On November 16, 1980, Herndon allegedly sent a letter to the trial court,

with the then-Chief Judge copied, “regarding Herndon’s false trial testimony.” R. 30 (Am. Compl. at 19) (Page ID

#7505). On August 12, 2000, Herndon allegedly wrote a letter to Judge Susan Borman, “again admitting to

murdering Yvette Ingram and lying at the Watkins trial.” Id. at 19 n.2. On November 13, 2017, Herndon signed

another affidavit attesting to the events during his interrogation as alleged by Watkins. R. 36-8 (Herndon 2017 Aff.

at 2–4) (Page ID #9650–52). Watkins does not provide a record cite in his brief for the 1980 letter or 2000 letter.

Nor can we find either document in the district court record. But because this is an appeal of a district court’s denial

of a Rule 12(b)(6) motion, we nonetheless construe Watkins’s allegations as true.

No. 20-1074 Watkins v. Healy Page 6

this millennium. On January 19, 2017, Watkins filed a successive motion for relief from

judgment with the state trial court, which included an affidavit from a forensic hair-

analysis expert that challenged Badaczewski’s testimony and hair analysis.11 R. 34-48 (2017

Mot. at 1–3) (Page ID #9181–83); R. 30 (Am. Compl. at 24) (Page ID #7510). The Wayne

County Prosecutor’s Office moved to dismiss Watkins’s case without prejudice. 12 R. 34-49

(Stip. Order at 1–3) (Page ID #9236–38); R. 30 (Am. Compl. at 25) (Page ID #7511). On June

15, 2017, the state court vacated Watkins’s conviction and sentence and dismissed the case

without prejudice. R. 34-49 (Stip. Order at 3) (Page ID #9238). Watkins had been incarcerated

for over forty-one years for Ingram’s murder. R. 30 (Am. Compl. at 26) (Page ID #7512).13

On December 6, 2017, Watkins filed suit pursuant to 42 U.S.C. § 1983 and 42 U.S.C.

§ 198814 in federal court against Healy, Schwartz’s estate,15 Badaczewski, and the City of

In his 2017 successive petition for relief, Watkins asserts that Herndon wrote yet another letter to an

acquaintance in which he admitted that he testified falsely against Watkins. R. 34-48 (2017 Mot. at 33) (Page ID

#9213). Because Watkins did not mention this letter in his amended complaint, we do not consider it.

10See People v. Watkins, 259 N.W.2d 381 (Mich. Ct. App. 1977); People v. Watkins, 883 N.W.2d 758

(Mich. 2016).

11Watkins also contended that the DPD committed a Brady violation; acknowledged that Herndon had

recanted in 1980, 2000, and 2006; and raised as impeachment evidence a newly discovered statement written by the

DPD regarding Herndon’s initial communication to the police that only Watkins killed Ingram. R. 34-48 (2017

Mot. at 1–3) (Page ID #9181–83).

12

The Wayne County Prosecutor’s office stipulated to several facts: that “[t]he ground raised by [Watkins]

that warrants granting him relief is that the evidence in this case included Detroit Police testimony regarding

microscopic hair analysis which is undermined by new Federal Bureau of Investigation standards of hair

comparison”; that the People’s case “hinged” on Herndon’s testimony and Badaczewski’s “microscopic hair

analysis/comparison testimony”; that “[a]ll evidence pertinent to this case has been destroyed” and “no pertinent

evidence remains”; that Watkins’s expert’s proposed testimony and the “new . . . FBI standards for hair comparison

are newly discovered evidence” that “Howenstine’s proposed testimony and the new (2016) revised FBI standards

for hair comparison . . . makes a different result probable on retrial”; and that “[i]nsufficient evidence exists to retry

[Watkins].” R. 34-49 (Stip. Order at 1–3) (Page ID #9236–38).

13Watkins’s complaint further alleges: “On October 30, 2017, Defendant, B[adaczewski], testified in

another case involving Plaintiff’s wrongful conviction that he never believed that forensic hair analysis was reliable

enough to be used in a courtroom. Instead, he believed that forensic hair analysis, like polygraph examinations,

should be used only as an investigative tool. He knew that a forensic hair examiner could never testify that one hair

‘matched’ another hair or that they were from the same source to a ‘high degree of probability.’” R. 30 (Am.

Compl. at 26) (Page ID #7512).

14Watkins’s amended complaint states: “This is an action for damages brought pursuant to 42 U.S.C.

§§1983 and 1998, the 4th and 14th Amendments to the United States Constitution[.]” R. 30 (Am. Compl. at 1–2)

(Page ID #7487–88) (emphasis added). We assume “1998” refers to 42 U.S.C. § 1988. This error is

inconsequential in this appeal because the sole issue that we address on review—absolute immunity—implicates

only 42 U.S.C. § 1983.

No. 20-1074 Watkins v. Healy Page 7

Detroit.16 R. 1 (Compl. at 1–2) (Page ID #1–2). In his amended complaint, Watkins brings the

following claims against Healy:

• Count I: fabrication of evidence in violation of the Fourth Amendment, R. 30

(Am. Compl. at 28) (Page ID #7514);

• Count II: fabrication of evidence in violation of the Fourteenth Amendment, id.

at 30 (Page ID #7516);

• Count III: malicious prosecution in violation of the Fourth Amendment, id. at 31

(Page ID #7517);

• Count VIII: civil conspiracy in violation of the Fourth Amendment, id. at 43

(Page ID #7529);

• Count IX: civil conspiracy in violation of the Fourteenth Amendment, id. at 44

(Page ID #7530);

• Count XV: common law malicious prosecution, id. at 56 (Page ID #7542).

His complaint also included a variety of state and federal claims against the other defendants.

In January 2019, Healy moved to dismiss Watkins’s amended complaint pursuant to Rule

12(b)(6), R. 34 (Mot. Dismiss at 1) (Page ID #7734), which the district court denied, Watkins v.

Healy, No. 17-CV-13940, 2019 WL 3777631, at *1 (E.D. Mich. Aug. 12, 2019). The district

court also denied Healy’s motion for reconsideration. Watkins v. Healy, 429 F. Supp. 3d 420,

442 (E.D. Mich. 2019). Healy timely filed a notice of appeal, bringing this case before this

court.

II. DISCUSSION

A. Jurisdiction

Healy raises six issues on appeal: (1) whether the applicable three-year statute of

limitations bars Watkins’s constitutional claims; (2) whether absolute immunity insulates Healy

15Schwartz died in 2010. See Appellant’s Br. at 3 n.6.

16On July 25, 2017, Watkins sued the State of Michigan in state court pursuant to Michigan’s Wrongful

Imprisonment Compensation Act. The Michigan Court of Claims granted summary disposition to defendants,

reasoning that Watkins’s hair-analysis expert’s affidavit “only articulates generic problems” with Badaczewski’s

analysis and trial testimony, but “fails to connect those problems to the testimony offered at [Watkins’s] criminal

trial in a way that undermines the specific conclusions reached in that case.” R. 41-4 (Mich. Ct. Cl. Order at 10)

(Page ID #9917). The Michigan Court of Appeals affirmed. See Watkins v. State, No. 348855, 2020 WL 6236500,

at *1 (Mich. Ct. App. Oct. 22, 2020).

No. 20-1074 Watkins v. Healy Page 8

from Watkins’s constitutional and common law claims; (3) whether the criminal proceedings

terminated in favor of Watkins for his § 1983 claims; (4) whether the criminal proceedings

terminated in favor of Watkins for his state-law claims; (5) whether Watkins has plausibly

alleged a claim for civil conspiracy under § 1983; and (6) whether Watkins’s § 1983 suit denies

Healy due process. See Appellant’s Br. at xi.

The parties have approached jurisdiction rather haphazardly. Neither Healy nor Watkins

contested jurisdiction in their briefs.17 After we pressed the issue at oral argument, Healy’s

counsel protested that this court does have appellate jurisdiction to consider all six of Healy’s

arguments. Watkins’s counsel then expressed for the first time that this court has appellate

jurisdiction over only the issue of absolute immunity (Issue #2). Healy’s counsel replied that this

court at least maintains appellate jurisdiction over both absolute immunity and the question of

favorable termination (Issues #3 and #4). Healy subsequently submitted to this court a Federal

Rule of Appellate Procedure 28(j) letter, in which he advanced for the first time that this court

should exert pendent appellate jurisdiction to consider the statute-of-limitations issue (Issue #1).

No. 20-1074, R. 44 (28(j) Letter at 2).

Notwithstanding the parties’ scattered jurisdictional arguments, we must satisfy ourselves

that we have appellate jurisdiction. See Innovation Ventures, LLC v. Custom Nutrition Labs.,

LLC, 912 F.3d 316, 327 (6th Cir. 2018). Thus, we address whether we have appellate

jurisdiction to review Healy’s six issues per the collateral-order doctrine or via our pendent

appellate jurisdiction.

Title 28 U.S.C. § 1291 grants appellate jurisdiction to the courts of appeals “only from

‘final decisions’ of the district courts,” Mitchell v. Forsyth, 472 U.S. 511, 524 (1985), and a

district court’s order denying a Rule 12(b)(6) motion to dismiss is usually not a final decision

17In their briefs, Healy submits that we have jurisdiction pursuant to 28 U.S.C. § 1292(b), see Appellant’s

Br. at x, and Watkins argues that we have jurisdiction pursuant to 28 U.S.C. § 1291, see Appellee’s Br. at 1. There

is no record of the district judge certifying that his opinion “involves a controlling question of law as to which there

is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance

the ultimate termination of the litigation[.]” 28 U.S.C. § 1292(b). Nor is there any record of the Sixth Circuit

permitting any such appeal. See id. Thus, this court does not have jurisdiction under § 1292(b). Any appellate

jurisdiction that we may have in this case is limited to § 1291 via the collateral-order doctrine or our pendent

appellate jurisdiction, as explained infra.

No. 20-1074 Watkins v. Healy Page 9

that we may review under § 1291, see Hart v. Hillsdale County, 973 F.3d 627, 634–35 (6th Cir.

2020). A judicially created exception to this rule is the collateral-order doctrine, which

originated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). In Cohen, the

Supreme Court expressed that it had “long given” § 1291 a “practical rather than a technical

construction.” Id. at 546. The Court concluded that a district court decision is immediately

appealable if it falls within “that small class which finally determine claims of right separable

from, and collateral to, rights asserted in the action, too important to be denied review and too

independent of the cause itself to require that appellate consideration be deferred until the whole

case is adjudicated.” Id.

One such collateral determination is a district court’s denial of a defendant’s motion for

dismissal or summary judgment on the grounds of absolute immunity or qualified immunity “to

the extent that it turns on an issue of law[.]” Forsyth, 472 U.S. at 525–30; see also Nixon v.

Fitzgerald, 457 U.S. 731, 742 (1982). “[T]his exception is a narrow one. A denial of a claim of

qualified immunity is immediately appealable only if the appeal is premised not on a factual

dispute, but rather on neat ‘abstract issues of law.’” Hart, 973 F.3d at 635 (quoting Phillips v.

Roane County, 534 F.3d 531, 538 (6th Cir. 2008)) (alteration in original). The prosecutorial-

immunity issues here (Issue #2) implicate a “purely legal” question, Forsyth, 472 U.S. at 530,

specifically whether the Court’s prosecutorial-immunity jurisprudence applies retroactively to

the events underlying Watkins’s suit, see § II.B.3., infra. The collateral-order doctrine also

allows us to consider whether Healy has satisfied his burden under Rule 12(b)(6) to show that

absolute immunity is justified with respect to Watkins’s claims. See Prince v. Hicks, 198 F.3d

607, 612 (6th Cir. 1999). Thus, we have appellate jurisdiction to review the district court’s

denial of absolute immunity for Healy’s federal-law and state-law immunity arguments. See

Peterson v. Heymes, 931 F.3d 546, 552–53 (6th Cir. 2019).18

18“We must look to state immunity law to determine if a denial of immunity based on state law is

appealable.” Brent v. Wayne Cnty. Dep’t of Human Servs., 901 F.3d 656, 691 (6th Cir. 2018) (alteration and citation

omitted), cert. denied, 139 S. Ct. 1551 (2019). Specifically, we look to whether a state “has extended an underlying

substantive right to the defendant official to be free from the burdens of litigation arising from acts taken in the

course of his duties.” Id. (citation omitted). When state law focuses only on granting officials immunity from

liability, officials have no right to an interlocutory appeal. See id. But if a state seeks to guard officials from “‘the

general costs of subjecting officials to the risks of trial—distraction of officials from their governmental duties,

No. 20-1074 Watkins v. Healy Page 10

The collateral-order doctrine does not permit us, however, to consider Healy’s five other

issues. Healy did not raise his civil conspiracy and due-process arguments (Issues #5 and #6) to

the district court; his forfeiture means that the district court issued no determination regarding

these issues that could be considered collateral.19 More importantly, we are not convinced that

any of these five issues would satisfy the Supreme Court’s three-prong collateral-order test. See

Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (explaining that to be a qualifying

collateral order, a district court decision must: (1) “conclusively determine the disputed

question”; (2) “resolve an important issue completely separate from the merits of the action”; and

(3) “be effectively unreviewable on appeal from a final judgment”). At bottom, the third prong

is not met here because delaying review of these five issues until entry of final judgment does

not “imperil a substantial public interest” or “some particular value of a high order.” Mohawk

Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009) (quoting Will v. Hallock, 546 U.S. 345, 352–

53 (2006)).

In his Rule 28(j) letter, Healy entreats us to exercise our pendent appellate jurisdiction to

review the statute-of-limitations issue (Issue #1). We decline Healy’s invitation. We maintain

pendent appellate jurisdiction over otherwise nonappealable issues that are “inextricably

intertwined” with appealable issues. See Brennan v. Twp. of Northville, 78 F.3d 1152, 1157 (6th

Cir. 1996). This occurs when the nonappealable issue is “coterminous with, or subsumed in” the

appealable issue, or, put another way, when “[o]ur finding on the first issue necessarily and

unavoidably decides the second.” Id. at 1158. Such jurisdiction is “discretionary” and “a refusal

inhibition of discretionary action, and deterrence of able people from public service,’ we will conclude that the state

intended to immunize its officials from suit and therefore intended to authorize interlocutory appeals from the denial

of such immunity.” Id. (quoting Forsyth, 472 U.S. at 526).

“Michigan courts have recognized a common-law prosecutorial immunity that closely tracks the absolute

§ 1983 immunity conferred by the Supreme Court in Imbler.” Cheolas v. City of Harper Woods, No. 06-11885,

2009 WL 388548, at *9 (E.D. Mich. Feb. 13, 2009) (collecting cases); see also Payton v. Wayne County,

357 N.W.2d 700, 702–03 (Mich. Ct. App. 1984) (citing Imbler v. Pachtman, 424 U.S. 409 (1976)); Davis v. Eddie,

343 N.W.2d 11, 13 (Mich. Ct. App. 1983) (same). Thus, Michigan has adopted the Supreme Court’s desire to

immunize officials from litigation. See Forsyth, 472 U.S. at 526; see also Davis, 343 N.W.2d at 13 (“The public

interest requires that persons occupying such important positions and so closely identified with the judicial

departments of the government should speak and act freely and fearlessly in the discharge of their important official

functions.”) (quoting Bloss v. Williams, 166 N.W.2d 520, 523 (Mich. Ct. App. 1968)). Accordingly, we have

jurisdiction to address whether Michigan’s common-law prosecutorial immunity insulates Healy from Watkins’s

state-law malicious prosecution claim.

19We discuss forfeiture further in § II.C., infra.

No. 20-1074 Watkins v. Healy Page 11

[to extend the doctrine] could be based on particular circumstances in the case.” Id.; see also

Williams v. Commonwealth of Kentucky, 24 F.3d 1526, 1542 (6th Cir. 1994). Wary that Healy

seeks “to parlay [a] Cohen-type collateral order[] into [a] multi-issue interlocutory appeal

ticket[,]” we invoke our discretion and decline to exercise our pendent appellate jurisdiction over

any of his five other issues. Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 49–50 (1995).

Healy’s letter correctly points out that the D.C. Circuit has held and the Tenth Circuit has

suggested that pendent appellate jurisdiction permits review of an otherwise unappealable

statute-of-limitations defense in other contexts. See Rendall-Speranza v. Nassim, 107 F.3d 913,

917 (D.C. Cir. 1997); Wilkins v. DeReyes, 528 F.3d 790, 796 (10th Cir. 2008). Because the

courts of appeals have set their own standards for when pendent appellate jurisdiction is

appropriate, other circuits’ decisions are less persuasive here than they are in other contexts.20

We, and only we, decide whether to grant pendent appellate jurisdiction. Because the statute of

limitations issue is not “inextricably intertwined” with the appealable immunity issues, we

decline to exercise pendent appellate jurisdiction over the limitations issue.

Accordingly, we consider only one of Healy’s issues—whether his alleged actions are

shielded by absolute immunity.

20The circuits that invoke pendent appellate jurisdiction diverge as to the breadth of this kind of

jurisdiction. For example, the D.C. Circuit exercises appellate jurisdiction “only when ‘substantial considerations of

fairness or efficiency demand it.’” Rendall-Speranza, 107 F.3d at 917 (quoting Gilda Marx, Inc. v. Wildwood

Exercise, Inc., 85 F.3d 675, 679 (D.C. Cir.1996)). When deciding whether this standard has been met, the D.C.

Circuit considers several factors, only one of which is whether the issues are “inextricably intertwined.” Because we

home in on the “inextricably intertwined” analysis, it is not at all given that we—or other circuits that follow their

own standards—would reach the same conclusion as the D.C. Circuit. Indeed, the Fourth Circuit, Fifth Circuit, and

the Tenth Circuit (in a case with similar facts to Watkins’s suit) have declined to exercise pendent appellate

jurisdiction over a statute-of-limitations defense when they had appellate jurisdiction over a denial of immunity. See

Johnson v. Johnson, 694 F. App’x 945, 947 (5th Cir. 2017); Sanchez v. Hartley, 810 F.3d 750, 761 (10th Cir. 2016);

Ochoa Lizarbe v. Rivera Rondon, 402 F. App’x 834, 837 (4th Cir. 2010).

In short, because the circuits differ as to whether pendent appellate jurisdiction should be invoked at all,

what the scope of such jurisdiction is, and when it is appropriate to review pendent issues, we follow our own

precedent in deciding whether to exercise our discretionary pendent appellate jurisdiction.

No. 20-1074 Watkins v. Healy Page 12

B. Absolute Immunity

Healy argues that he is entitled to absolute immunity regarding Watkins’s constitutional

and common-law claims. See Appellant’s Br. at 39. Taking Watkins’s plausible allegations in

his amended complaint as true, we conclude that Healy is not entitled to absolute immunity.

1. Standard of Review

We review de novo a district court’s denial of a Rule 12(b)(6) motion to dismiss based on

absolute immunity. Koubriti v. Convertino, 593 F.3d 459, 466 (6th Cir. 2010). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

Federal courts must “construe the complaint in the light most favorable to the plaintiff, accept all

well-pleaded factual allegations as true, and draw all reasonable inferences in [the plaintiff’s]

favor.” Waskul v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 440 (6th Cir. 2020).

“As a general rule, a court considering a motion to dismiss ‘must focus only on the allegations in

the pleadings.’” Id. (quoting Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 483 (6th Cir.

2020)).

2. Advocacy Versus Investigation

Because “Michigan courts have recognized a common-law prosecutorial immunity that

closely tracks the absolute § 1983 immunity conferred by the Supreme Court[,]” we turn to the

Supreme Court to resolve whether Healy is entitled to absolute immunity for both Watkins’s

federal-law and state-law claims. See Cheolas v. City of Harper Woods, No. 06-11885,

2009 WL 388548, at *9 (E.D. Mich. Feb. 13, 2009) (collecting cases). In Imbler v. Pachtman,

424 U.S. 409 (1976), the Court held that prosecutors enjoy absolute immunity from § 1983 suits

for damages when they act “within the scope of [their] duties in initiating and pursuing a

criminal prosecution[,]” id. at 410. The Court acknowledged that “initiating a prosecution and []

presenting the State’s case” are “intimately associated with the judicial phase of the criminal

No. 20-1074 Watkins v. Healy Page 13

process[,]” but declined to reach the question of whether absolute immunity is accorded to “those

aspects of the prosecutor’s responsibility that cast him in the role of an administrator or

investigative officer rather than that of advocate.” Id. 430–31; see also Burns v. Reed, 500 U.S.

478, 491 (1991) (explaining that Imbler “reserved judgment” regarding whether prosecutors

were entitled to absolute immunity in their “role as ‘administrator or investigative officer[]’”).

In the decades following Imbler, the Court “revisited and refined” its prosecutorial

immunity jurisprudence. Rouse v. Stacy, 478 F. App’x 945, 947 (6th Cir. 2012); see, e.g., Burns,

500 U.S. at 486, 495 (acknowledging “the functional approach to immunity employed in Imbler”

and “inquir[ing as to] whether the prosecutor’s actions are closely associated with the judicial

process[]”). One such instance is Buckley v. Fitzsimmons, 509 U.S. 259 (1993), where the Court

clarified that the key to an absolute immunity inquiry is “the nature of the function performed,

not the identity of the actor who performed it[,]” id. at 269 (quoting Forrester v. White, 484 U.S.

219, 229 (1988)). In Buckley, the Court addressed the question that it had declined to reach in

Imbler. The Court reiterated that acts undertaken by a prosecutor “in his role as advocate for the

State”—involving “actions preliminary to the initiation of a prosecution and actions apart from

the courtroom”—are accorded absolute immunity. Buckley, 509 U.S. at 272 (quoting Imbler,

424 U.S. at 431 n.33). “[But] when a prosecutor ‘functions as an administrator rather than as an

officer of the court’ he is entitled only to qualified immunity.” Id. at 273 (quoting Imbler, 424

U.S. at 431 n.33).

Decades of clarification have produced sundry examples of prosecutorial actions that fall

on both sides of the advocacy-investigation border. Prosecutors function as advocates—and are

thus protected by absolute immunity—when “knowingly us[ing] false testimony and

suppress[ing] material evidence[,]” Imbler, 424 U.S. at 413; “evaluating evidence and

interviewing witnesses as he prepares for trial,” Buckley, 509 U.S. at 273; “participat[ing] in a

probable cause hearing,” Burns, 500 U.S. at 487; “prepar[ing] and filing . . . the information and

the motion for an arrest warrant[,]” Kalina v. Fletcher, 522 U.S. 118, 129 (1997); or “making

statements at a preliminary examination about the availability of a witness,” Adams v. Hanson,

656 F.3d 397, 399 (6th Cir. 2011). Prosecutors act as investigators and are entitled at most to

only qualified immunity when giving “legal advice to the police[,]” Burns, 500 U.S. at 487, 496,

No. 20-1074 Watkins v. Healy Page 14

including “g[iving] legal advice prior to the existence of probable cause and prior to [the

prosecutor’s] determination that she would initiate criminal proceedings against [a defendant,]”

Prince, 198 F.3d at 614–15; “fabricat[ing] [] false evidence” before “a special grand jury was

empaneled[,]” Buckley, 509 U.S. at 275; and “directing the [police’s] investigation, advising the

[police] regarding the legality of the [products seized from defendants], and propelling the

officers to execute [an operation to seize products]” “prior to the initiation of judicial

proceedings and without probable cause[,]” Rieves v. Town of Smyrna, 959 F.3d 678, 692 (6th

Cir. 2020). The Court has “emphasized that the official seeking absolute immunity bears the

burden of showing that such immunity is justified for the function in question[,]” Burns,

500 U.S. at 486, and is “quite sparing” in granting absolute immunity, Buckley, 509 U.S. at 269

(quoting Forrester, 484 U.S. at 224).

Watkins alleges that Healy committed four acts inside, or right outside, Herndon’s

interrogation room, all of which could implicate the doctrine of absolute immunity. First, Healy

allegedly threatened to charge Herndon with two murders, even though Herndon had told Healy

that Watkins was not involved in Ingram’s murder. R. 30 (Am. Compl. at 28) (Page ID #7514).

Second, Healy apparently promised Herndon immunity for testifying at Watkins’s trial,

notwithstanding Herndon’s statements regarding Watkins’s lack of involvement in the Ingram

murder. Id. Third, Healy purportedly “assist[ed] with the interrogation of Herndon.” Id. at 29

(Page ID #7515).21 Fourth, Healy supposedly conspired with Schwartz to “intimidat[e] and

coerc[e] Travis Herndon into falsely implicating Watkins.” Id. at 43–44 (Page ID #7529–30).

Absolute immunity protects none of these four acts. Healy purportedly questioned and

threatened a witness during an interrogation that took place in the midst of the investigation into

Ingram’s murder. All four of Healy’s alleged actions occurred before any probable cause

hearing, see Buckley, 509 U.S. at 275; cf. Burns, 500 U.S. at 487; before any arrest warrant was

21In Count III, Watkins alleges that Healy “influenced or participated in the initiation of criminal

prosecution when he deliberately and knowingly fabricated evidence by manufacturing Travis Herndon’s false

‘fourth version’ of the murder, which was material to a finding of probable cause.” R. 30 (Am. Compl. at 32) (Page

ID #7518). The portion of the sentence about the initiation of criminal prosecution could be interpreted as Watkins’

alleging that Healy improperly prosecuted him, which could be protected by Imbler as a function of advocacy. But

the latter half of the sentence and the rest of Count III focus on the purported knowing fabrication of evidence

during interrogation, which is clearly an investigative function.

No. 20-1074 Watkins v. Healy Page 15

sought, cf. Kalina, 522 U.S. at 129; or before a grand jury was convened, see Buckley, 509 U.S.

at 275. By interrogating Herndon—and allegedly threatening Herndon during said

interrogation—Healy was not performing “the advocate’s role [of] evaluating evidence and

interviewing witnesses as he prepares for trial”; he was performing “the detective’s role in

searching for the clues and corroboration that might give him probable cause to recommend that

a suspect be arrested.” Buckley, 509 U.S. at 273 (emphases added).22 Healy’s four actions were

completely divorced from “the judicial phase of the criminal process.” See Imbler, 424 U.S. at

430. In short, “[p]rosecutors who supervise and participate in unconstitutional police

interrogations of a criminal suspect are not entitled to absolute immunity.” Wendrow v. Mich.

Dep’t of Human Servs., 534 F. App’x 516, 527 (6th Cir. 2013); see also Fields v. Wharrie,

740 F.3d 1107, 1113 (7th Cir. 2014) (refusing to “bless [the] breathtaking injustice” of a

“[p]rosecutor, acting pre-prosecution as an investigator, [who] fabricates evidence and introduces

the fabricated evidence at trial”).23

22Watkins points out that Healy was deposed in Watkins’s lawsuit against the State of Michigan, which is

currently making its way through state court. Watkins highlights the transcript of the relevant part of Healy’s

deposition, in which Healy admits that the purpose of an investigative interview—such as the interview of

Herndon—“is to get information from a prisoner.” Appellee’s Br. at 37. This statement of Healy could be

interpreted as Healy’s conceding that his interrogating Herndon was the performance of investigative functions. Of

course, for a Rule 12(b)(6) appeal, this court is limited to the facts stated in the complaint. But this admission

indicates that Watkins has met his burden under Iqbal and Twombly of plausibly alleging that Healy was acting in

his investigative role.

23Healy cites several cases about prosecutorial immunity that are readily distinguishable.

The case that most supports Healy’s position is our unpublished case, Beckett v. Ford, 384 F. App’x 435

(6th Cir. 2010). In Beckett, we determined that a prosecutor who “pressured, threatened, and enticed witnesses to lie

at Beckett’s trial” was performing advocacy functions and was entitled to absolute immunity. Id. at 451. But

Beckett’s and Watkins’s complaints are noticeably dissimilar. “[D]espite pointing to the fact that [the prosecutor]

did some investigating, Beckett does not allege that [the prosecutor] engaged in any wrongdoing as part of that

investigating. Instead, Beckett argues that [the prosecutor] acted improperly while preparing [the witness] to

testify.” Id. at 441 n.3 (emphases added). Beckett’s complaint alleged that the prosecutor threatened the witness

when “he reviewed with [the witness] what [the witness] would say on the stand.” Id. at 451 (emphasis added).

Here, Watkins does not allege that Healy was preparing Herndon’s testimony for trial in the immediate lead-up to

trial; Watkins alleges that Healy pressured Herndon to testify to secure an unconstitutional conviction before any

probable cause existed, any warrant was sought, and any grand jury was convened. Further, Watkins plausibly

alleges that Healy threatened Herndon during an interrogation in order to falsify a taped statement that would serve

as the sole basis for an arrest warrant; this falls squarely into the investigative stage of this case.

For the same reasons, this case is also distinguishable from Spurlock v. Thompson, 330 F.3d 791 (6th Cir.

2003). In Spurlock, we granted absolute immunity to a prosecutor who allegedly had two witnesses testify falsely at

a defendant’s second criminal trial. See id. at 795. But in Spurlock, the supposed coercion took place long after the

investigative stage, because probable cause had been established and an entire first trial had already transpired. See

No. 20-1074 Watkins v. Healy Page 16

Healy argues that a prosecutor ceases to be an investigator and starts acting like an

advocate when the “prosecutor speak[s] with an accomplice/witness after that individual had

already implicated someone in a murder to a detective.” Appellant’s Br. at 46. Here, contends

Healy, Herndon had already implicated Watkins before Healy and Schwartz apparently

threatened Herndon. Id. But erecting Healy’s suggested barrier between investigation and

advocacy would impermissibly contradict the Supreme Court. In Buckley, the Court concluded

that “[a] prosecutor neither is, nor should consider himself to be, an advocate before he has

probable cause to have anyone arrested.” Buckley, 509 U.S. at 274. “Of course,” the Court

continued, “a determination of probable cause does not guarantee a prosecutor absolute

immunity from liability for all actions taken afterwards. Even after that determination, . . . a

prosecutor may engage in ‘police investigative work’ that is entitled to only qualified immunity.”

Id. at 274 n.5.

In other words, the Buckley Court made clear that a prosecutor acts only as an

investigator and not an advocate before probable cause surfaces and may act as either

investigator or advocate after probable cause arises. Because an individual who implicates

someone in a murder does not necessarily generate probable cause, Healy’s suggested bright-line

rule would radically dislocate the Court’s thoughtful consideration of when investigation may

cease and advocacy might begin. Instead, a straightforward application of Buckley is merited.

Here, Watkins plausibly alleges that Herndon’s taped statement, which Healy allegedly helped

procure, was the sole basis for Schwartz’s application for an arrest warrant. Thus, Watkins

alleges that Healy was functioning as an investigator, and not as an advocate.

Even if Herndon’s two initial statements—which implicated Watkins—generated

probable cause before Schwartz tape-recorded Herndon, Buckley dictates that this would not

automatically transform Healy from investigator to advocate. Wendrow v. Michigan Department

of Human Services is illustrative. In Wendrow, we denied absolute immunity to two prosecutors

who interviewed a suspect before the suspect’s parent was arrested. 534 F. App’x at 527. Even

id. The events in Spurlock occurred in the heart of a period where the prosecutor was acting solely as an advocate,

not an investigator. Further, as in Beckett, the Spurlock prosecutor supposedly pressured the witnesses in the

process of preparing the witnesses’ statements at the second trial. See id. Again, Healy’s alleged coercion of

Herndon took place in the context of interrogation—a purely investigative function—and Healy supposedly acted to

create the sole basis of probable cause; thus, probable cause did not yet exist.

No. 20-1074 Watkins v. Healy Page 17

though the interview “took place after probable cause to arrest [the parent] was established and

in preparation for court proceedings[,]” we rejected the prosecutors’ position “that they were

merely interviewing witnesses as part of their preparation for trial” and that “gathering new

information does not transform their function into that of investigation.” Id. Consistent with

Buckley, we once again reject any bright-line rules that would suggest that a prosecutor

automatically passes from the realm of investigation to the world of advocacy as soon as a

witness implicates someone or when probable cause arises.24

3. Retroactivity

Healy falls back on an equity-laden retroactivity argument. He urges that we apply only

Imbler, a 1976 decision, and not Buckley, a 1993 decision. See Appellant’s Br. at 43. Healy

protests that “Healy’s actions in connection with the prosecution of Watkins in 1975 and 1976

were protected by immunity at the time he performed his duties” and that “[i]t is unfair to

evaluate his actions in light of precedent established 17–18 years after he took them.” Id.

According to Healy, “the standards of prosecutorial immunity in effect in 1975–76 should apply

and would have immunized him from Watkins’[s] § 1983 claims.” Id. at 39.

Healy’s backward-looking approach flies in the face of the Supreme Court’s retroactivity

rule for civil cases. In Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993), the

Supreme Court addressed the “precise extent to which the presumptively retroactive effect of this

Court’s decisions may be altered in civil cases.” Id. at 96. Citing its earlier plurality decision in

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), the Court held that:

When this Court applies a rule of federal law to the parties before it, that rule is

the controlling interpretation of federal law and must be given full retroactive

24None of the cases that Healy cites support his suggested demarcation. In Ireland v. Tunis, 113 F.3d 1435

(6th Cir. 1997), we explained only that “[a] prosecutor’s decision to file a criminal complaint and seek an arrest

warrant and the presentation of these materials to a judicial officer fall squarely within the aegis of absolute

prosecutorial immunity[,]” id. at 1446. Ireland did not speak to whether investigatory functions ceased when a

witness implicated someone. So too does Healy embellish the implications of Red Zone 12 LLC v. City of

Columbus, 758 F. App’x 508 (6th Cir. 2019). In Red Zone, the allegations about the prosecutor’s “conduct all center

around his initiation and prosecution of the . . . suit.” Id. at 514. Any boundary that could be gleaned from Ireland

or Red Zone relates to the prosecutor’s decision to initiate a suit and not the moment that a witness implicates a

suspect or when probable cause emerges.

No. 20-1074 Watkins v. Healy Page 18

effect in all cases still open on direct review and as to all events, regardless of

whether such events predate or postdate our announcement of the rule.

Harper, 509 U.S. at 97–98.

Applying Beam and Harper to Buckley is straightforward. Absolute immunity is a

federal rule, see Buckley, 509 U.S. at 270 (describing the “rule of absolute immunity”), that the

Court has applied to the parties before it without reservation, see, e.g., id. at 275. Thus, Buckley

and its progeny apply with full retroactive force to the events underlying Watkins’s claims. Our

understanding of Harper is confirmed by Supreme Court and courts of appeals decisions that

apply Buckley to events that long predated the filing of a § 1983 suit. See, e.g., Kalina, 522 U.S.

at 120, 126 (applying Buckley even though underlying events occurred in 1992); Collyer v.

Darling, 98 F.3d 211, 216, 221 (6th Cir. 1996) (citing Buckley even though underlying events

took place between 1982–1985 and suit was filed in 1992); Giuffre v. Bissell, 31 F.3d 1241,

1244, 1254 (3d Cir. 1994) (applying Buckley even though underlying events took place in 1991

and § 1983 suit was filed in 1992); Fields, 740 F.3d at 1110–11 (applying Buckley even though

underlying events occurred in 1985); see also Reynoldsville Casket Co. v. Hyde, 514 U.S. 749,

752 (1995) (describing Harper’s holding as “when (1) the Court decides a case and applies the

(new) legal rule of that case to the parties before it, then (2) it and other courts must treat that

same (new) legal rule as ‘retroactive,’ applying it, for example, to all pending cases, whether or

not those cases involve predecision events”) (emphasis added).

By beseeching us to consider whether it is “fair” to hold him to modern standards of

prosecutorial immunity, Healy asks us to flout the Court’s “ban against selective application of

new rules.” Harper, 509 U.S. at 97 (internal quotation marks omitted). We have “no more

constitutional authority in civil cases than in criminal cases to disregard current law,” and “[i]n

both civil and criminal cases, we can scarcely permit the substantive law to shift and spring

according to the particular equities of individual parties’ claims of actual reliance on an old rule

and of harm from a retroactive application of the new rule.” Id. (alterations and internal

quotation marks omitted); see also Pollard v. State Farm Fire & Cas. Nat’l Union Fire Ins. Co.,

122 F. App’x 837, 842 (6th Cir. 2005) (rejecting argument that litigants’ reliance interests on old

No. 20-1074 Watkins v. Healy Page 19

precedent should prevent court from applying new Supreme Court decision retroactively

pursuant to Harper).

Even if we were to consider Healy’s equitable contentions, “the standards of

prosecutorial immunity in effect in 1975–76” in no way aid Healy’s appeal. Appellant’s Br. at

39. The law that existed in the Sixth Circuit during this period was identical to Buckley. In

Imbler, the Court acknowledged that several courts of appeals had “h[e]ld that a prosecutor

engaged in certain investigative activities enjoys, not the absolute immunity associated with the

judicial process, but only a good-faith defense comparable to the policeman’s.” Imbler, 424 U.S.

at 430 & n.31 (collecting cases). The Court concluded that it “ha[d] no occasion to consider”

these courts of appeals’ decisions. Id. at 430. Relevant here is our decision Hilliard v. Williams,

465 F.2d 1212 (6th Cir. 1972) [hereinafter Hilliard I], which Justice White examined in his

Imbler concurrence, Imbler, 424 U.S. at 443 (White, J., concurring). The Hilliard I court held

that a prosecutor’s “deliberate suppression” of exculpatory evidence was “beyond the scope of

duties constituting an integral part of the judicial process.” Hilliard I, 465 F.2d at 1218 (internal

quotation marks omitted). This is essentially Buckley’s holding. Thus, even without Buckley,

Healy’s actions would not benefit from absolute immunity in light of Hilliard I.

Healy correctly points out that we later vacated Hilliard I in light of Imbler in Hilliard v.

Williams, 540 F.2d 220 (6th Cir. 1976) (per curiam) [hereinafter Hilliard II]. But Healy cannot

overcome his own logic. Hilliard I was decided on July 31, 1972; Healy allegedly fabricated or

conspired to fabricate evidence in October 1975; Imbler was decided on March 2, 1976; Watkins

was convicted on March 16, 1976; and Hilliard II was issued on August 2, 1976. In October

1975—when Healy supposedly fabricated evidence—the law was plainly Hilliard I. On March

16, 1976, the law was still Hilliard I because Imbler specified that the Court was not overruling

courts of appeals’ decisions, like Hilliard I, that refused to accord absolute immunity to

prosecutors performing functions outside the scope of advocacy. Imbler, 424 U.S. at 430.

Because Hilliard I was the law in the Sixth Circuit from July 31, 1972 to August 16, 1976,

Healy’s argument defeats itself.

No. 20-1074 Watkins v. Healy Page 20

C. Qualified Immunity

Pursuant to the Imbler and Buckley line of cases, Healy is at most entitled to qualified

immunity for his alleged actions. But Healy failed to raise a qualified-immunity argument to the

district court or in his brief before us; he has thus forfeited the issue at this stage of the case.

In his Rule 12(b)(6) motion, Healy cursorily references qualified immunity under a

section titled “Absolute Immunity Bars the Fourth Amendment Claims[.]” R. 34 (Mot. Dismiss

at 24–25) (Page ID #7763–64). Under this heading, Healy supplies one paragraph that describes

the qualified immunity two-prong test without any application to the present case. Another

section header reads “Absolute and/or Qualified Immunity Bars the Due Process Claim[,]” but

the sole paragraph that follows pertains only to absolute immunity. Id. at 35–36 (Page ID

#7774–75). The district court found:

Healy cites boilerplate law related to the doctrine of qualified immunity. But the

arguments that Healy makes under this section of his motion relate solely to

absolute immunity, not qualified immunity. Healy has not developed any

argument in his pending motion to dismiss that he is entitled to qualified

immunity, and he has not provided the Court any basis to conclude that he is

entitled to qualified immunity. To the extent that Healy believes that he may be

entitled to qualified immunity, he may raise that argument on summary judgment.

Watkins, 2019 WL 3777631, at *9 n.8. In a footnote in his motion for reconsideration, Healy

mentioned qualified immunity just one time: “The reason why APA Healy framed this in the

amended motion to dismiss as ‘absolute and/or qualified immunity’ is because it is not clear how

the two doctrines interact when there is an argument that an individual would not have been on

notice whether absolute immunity would apply to particular conduct.” R. 49 (Mot. Reconsider at

12 n.5) (Page ID #10098). Based on this footnote, the district court—in its opinion denying

reconsideration—found that Healy “appears to contend, in other words, that he is entitled to

qualified immunity[.]” Watkins, 429 F. Supp. 3d at 440. The court still rejected qualified

immunity as a basis to dismiss Watkins’s suit. Id. 440–41.

On appeal, Healy’s brief includes sparse references to the policies behind qualified

immunity in a section titled “Applying Later Standards of Prosecutorial Immunity Is Unfair To a

Prosecutor Who Would Have Relied on Its Protections in Performing His or Her Duties[,]” in

No. 20-1074 Watkins v. Healy Page 21

which Healy argues that “nothing in Imbler or in any binding precedent in this Circuit would

have put APA Healy on notice that he was ‘abandoning’ his role as a ‘prosecutor’ by speaking

with the primary witness/accomplice who had already implicated a suspect (twice) in a

contemplated murder prosecution.” Appellant’s Br. at 43–45. Nowhere in this section, or

elsewhere in his brief, does Healy articulate the qualified-immunity rules or otherwise argue that

qualified immunity applies to his actions in 1975 and 1976. At most, Healy references the

“purpose of qualified immunity” to support his “fairness” argument. Id. at 44. In his brief,

Healy does not dispute the district court’s finding that qualified immunity does not bar Watkins’s

suit.

By failing properly to assert qualified immunity in his Rule 12(b)(6) motion to dismiss,

Healy has forfeited this issue.25 See 600 Marshall Ent. Concepts, LLC v. City of Memphis,

705 F.3d 576, 585 (6th Cir. 2013) (“[T]he failure to present an issue to the district court forfeits

the right to have the argument addressed on appeal.”) (citation omitted); United States v. White,

920 F.3d 1109, 1122–23 n.4 (6th Cir. 2019) (Clay, J., concurring in part) (“[A] defendant forfeits

an argument by, for instance, failing to make it before the district court, failing to make it in its

opening appellate brief, or identifying it without pressing it.” (citations omitted)), cert. denied,

140 S. Ct. 2667 (2020). Healy’s mentioning qualified immunity in a footnote in his motion to

reconsider is insufficient. See Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477 F.3d 383,

395 (6th Cir. 2007). Even if we were to disregard the district court’s finding that Healy’s Rule

12(b)(6) motion failed to raise a qualified-immunity argument, Healy forfeited the issue on

appeal via his perfunctory mentions of qualified immunity in his brief. See Turner v. City of

Taylor, 412 F.3d 629, 639 (6th Cir. 2005); Langley v. DaimlerChrysler Corp., 502 F.3d 475, 483

(6th Cir. 2007).26

25Some of our precedents interchange the terms “waiver” and “forfeiture.” Although related, the concepts

are distinct. “Waiver is affirmative and intentional, whereas forfeiture is a more passive failure to make the timely

assertion of a right.” Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019) (alterations and internal quotation

marks omitted). Because Healy failed to raise a qualified-immunity argument to the district court and, at most,

identified without pressing the issue in his brief, forfeiture is the correct term here. See id.

26At oral argument, we asked Healy’s counsel whether Healy had forfeited the issue of qualified immunity.

Healy’s counsel submitted that Healy had sufficiently addressed the issue of qualified immunity in his favorable-

termination arguments. We disagree. In his motion to dismiss, Healy submits “[i]n the [a]lternative” that “to

No. 20-1074 Watkins v. Healy Page 22

The rule that we “would typically consider” an issue omitted from a brief to be waived or

forfeited is “not jurisdictional, and [we] may choose to entertain arguments not raised by the

parties when the failure to do so would constitute a miscarriage of justice.” Dorris v. Absher,

179 F.3d 420, 425 (6th Cir. 1999). But no miscarriage of justice would occur by applying

forfeiture principles and declining to reach the question of qualified immunity given the current

posture of this case:

[I]t is generally inappropriate for a district court to grant a 12(b)(6) motion to

dismiss on the basis of qualified immunity. Although an officer’s entitlement to

qualified immunity is a threshold question to be resolved at the earliest possible

point, that point is usually summary judgment and not dismissal under Rule 12. It

is often perilous to resolve a Rule 12(b)(6) motion on qualified immunity grounds

because development of the factual record is frequently necessary to decide

whether the official’s actions violated clearly established law.

Hart, 973 F.3d at 635 (citations, alterations, and quotation marks omitted). In sum, Healy has

forfeited the issue of qualified immunity at this stage of the proceedings. Should Healy raise

qualified immunity in a motion for summary judgment, as the district court suggests, that would

be the more appropriate time for this court to address that issue.

III. CONCLUSION

In sum, Healy is not entitled to absolute immunity for Watkins’s claims of constitutional

and common law malicious prosecution and falsification of evidence, and Healy has forfeited the

issue of qualified immunity at this stage of the litigation. We affirm the denial of absolute

immunity to Healy and remand for further proceedings consistent with this opinion.

establish a malicious prosecution claim under § 1983, a plaintiff must show that the proceedings ‘terminated in his

favor.’” R. 34 (Mot. Dismiss at 34) (Page ID #7773). There is no mention of qualified immunity. Healy’s brief

states that “[f]or each of his federal claims, Watkins has the burden under § 1983 to demonstrate that the criminal

proceedings ‘terminated in his favor’ to establish a Constitutional violation to overcome any qualified immunity that

would attach.” Appellant’s Br. at 49. Besides putting the words “qualified immunity” in this sentence, Healy does

not otherwise contend that he is entitled to qualified immunity in his favorable-termination arguments or in any

other part of his brief. For the same reasons that we articulate supra, this bare mention of “qualified immunity”

constitutes forfeiture.