Wendy Cockrun v. Berrien Cnty., Mich.

RECOMMENDED FOR PUBLICATION

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

File Name: 24a0110p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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WENDY COCKRUN,

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Plaintiff-Appellee, │

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v. > No. 23-1291

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BERRIEN COUNTY, MICHIGAN, et al., │

Defendants, │

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CELENA HERBERT, Sergeant; HANNAH NOFS, Deputy; │

MIRANDA BAILEY, Deputy; ABIGAIL PIFER, Deputy; │

SABRINA LARATTA; KRISTINA HENDERSON, Deputy; │

BRITTANY ZABEL, Deputy; ANDREA LENEWAY, │

Deputy; CAROL VAUGHN, Deputy; COREY BURKS, │

Lieutenant, in their individual and official capacities, │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:21-cv-00070—Janet T. Neff, District Judge.

Argued: January 31, 2024

Decided and Filed: April 26, 2024*

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

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COUNSEL

ARGUED: James T. McGovern, STRAUB SEAMAN & ALLEN, P.C., St. Joseph, Michigan,

for Appellants. Shawn C. Cabot, CHRISTOPHER TRAINOR & ASSOCIATES, White Lake,

Michigan, for Appellee. ON BRIEF: James T. McGovern, STRAUB SEAMAN & ALLEN,

*This decision was originally filed as an unpublished opinion on April 26, 2024. The court has now

designated the opinion for publication.

No. 23-1291 Cockrun v. Berrien Cnty., Mich., et al. Page 2

P.C., St. Joseph, Michigan, for Appellants. Jonathan A. Abent, CHRISTOPHER TRAINOR &

ASSOCIATES, White Lake, Michigan, for Appellee.

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OPINION

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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.

I.

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

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

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

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

and in violation of her First Amendment rights, Officers placed her in administrative segregation.

She also alleged that Officers violated her Fourteenth Amendment due process interest in

personal security and asserted a Monell claim against the county. In their answer, Officers

denied all allegations. They also noted that Cockrun’s claims may be barred, in whole or in part,

by qualified immunity.

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

summary judgment included the following three mentions of qualified immunity:

No. 23-1291 Cockrun v. Berrien Cnty., Mich., et al. Page 3

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

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

omitted).1 The district court pointed out that Officers “failed to cite the legal standard for

qualified immunity and did not address the elements of qualified immunity as they relate to

each” Officer’s actions. It declined to “‘put flesh on [the] bones’ of Defendants’ merely skeletal

assertion of qualified immunity.” Id. at 996.

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

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

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

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

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

remained.

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

Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17, 20 n.1 (2017) (“The terms waiver and forfeiture—though

often used interchangeably by jurists and litigants—are not synonymous. Forfeiture is the failure to make the timely

assertion of a right; waiver is the intentional relinquishment or abandonment of a known right.”) (alterations,

internal quotations, and citations omitted).

No. 23-1291 Cockrun v. Berrien Cnty., Mich., et al. Page 4

Officers’ instant interlocutory appeal followed.

II.

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

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

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

538, 542 (6th Cir. 2012). Cockrun argues that we do not have jurisdiction over Officers’

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

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

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

2006) (quoting Berryman v. Rieger, 150 F.3d 561, 563 (6th Cir. 1998)).

III.

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

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

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

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

before the district court.

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

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

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

Sandridge, 385 F.3d 1032, 1035-36 (6th Cir. 2004) (“It is not sufficient for a party to mention a

possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”)

(internal quotations and citation omitted). And to raise qualified immunity, the “[d]efendants

bear the initial burden of coming forward with facts to suggest that they were acting within the

scope of their discretionary authority.” Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095

(6th Cir. 1992). We have previously instructed district courts to “withhold judgment on issues

not fully developed by the briefs or in the record. Issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.” Sandridge,

385 F.3d at 1035 (quoting Popovich v. Cuyahoga Cnty. Ct. of Common Pleas, 276 F.3d 808, 823

No. 23-1291 Cockrun v. Berrien Cnty., Mich., et al. Page 5

(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.

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

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

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

they cited only the first prong of the test: whether their alleged conduct violated a constitutional

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

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

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

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

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

defendant] has forfeited this issue.” Id. at 667 (emphasis added); see also Ashford v. Univ. of

Mich., 89 F.4th 960, 975 (6th Cir. 2024) (holding that defendants, who “made little effort to

connect the facts in the record to [the] two-pronged test for qualified immunity,” forfeited their

qualified immunity argument given their “scant treatment” of the issue); Pritchard v. Hamilton

Twp. Bd. of Trs., 424 F. App’x 492, 503 (6th Cir. 2011) (holding that the defendants forfeited

qualified immunity when they “adverted to [it] in a perfunctory manner, unaccompanied by some

effort at developed argumentation”) (internal quotations and citation omitted).

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

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

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

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

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

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

The alleged forfeiture came when defendants declined to explicitly invoke qualified immunity in

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

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

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

No. 23-1291 Cockrun v. Berrien Cnty., Mich., et al. Page 6

Officers’ failure to articulate the qualified immunity argument in their motion for summary

judgment meant that Cockrun was unable to fully respond to the argument, and the district court

would have been forced to “put flesh” on the argument’s bones to determine its merits.2 See

Sandridge, 385 F.3d at 1036 (internal quotations and citation omitted); see also Wheatt v. City of

E. Cleveland, 741 F. App’x 302, 305 (6th Cir. 2018) (“Consequently, they never challenged the

plaintiffs to respond to a qualified-immunity claim; they did not compel the district court to

decide the merits of a qualified-immunity dispute; and they did not preserve any substantive

qualified-immunity question or error for appeal. That is forfeiture.”).

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

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

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

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

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

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

exercising that discretion.

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

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

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

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

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

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

IV.

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

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

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

immunity. But when Cockrun responded to Officers’ motion for summary judgment, she was responding to what

she thought Officers’ argument might be—she had no way of responding to the actual argument, because Officers

did not make any argument. In any event, Cockrun should not be penalized for presenting a thorough

counterargument to what she guessed Officers’ argument to be.

No. 23-1291 Cockrun v. Berrien Cnty., Mich., et al. Page 7

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

the appeal is nothing more than whether the evidence could support a finding that particular

conduct occurred,” as it is here, “there is no appellate jurisdiction because that question is

inseparable from the merits of the plaintiff's claim.” Berryman v. Rieger, 150 F.3d 561, 563 (6th

Cir. 1998) (internal quotations and citation omitted); see also Harrison v. Ash, 539 F.3d 510, 517

(6th Cir. 2008) (“Thus, to the extent that the denial of qualified immunity is based on a factual

dispute, such a denial falls outside of the narrow jurisdiction of this Court.”); Gregory, 444 F.3d

at 743 (“To be clear, an appellant’s contention that the district court erred in finding a genuine

issue of fact for trial is not the type of legal question which we may entertain on an interlocutory

basis.”).

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

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

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

No. 23-1291 Cockrun v. Berrien Cnty., Mich., et al. Page 8

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

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

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

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

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

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

concludes that reasonable jurors could find that [Officers] were aware that Plaintiff faced a

substantial risk of serious harm and disregarded that risk by failing to take reasonable measures

to abate it.” Despite Officers’ suggestion, the decision could not be characterized as raising

questions of law. Moldowan, 578 F.3d at 371.

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

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

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

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

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

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

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

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

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

DiLuzio v. Vill. of Yorkville is instructive:

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

plaintiff’s allegations (and the district court’s acceptance) of what actually occurred or why an

action was taken or omitted, who did it, or nothing more than whether the evidence could support

a jury’s finding that particular conduct occurred.

796 F.3d 604, 609 (6th Cir. 2015) (cleaned up).