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Failure to Timely Assert Affirmative Defense in Responsive Pleading Constitutes Waiver

The Sixth Circuit Court of Appeals held on April 8, 2015 that an Ohio federal district court did not abuse its discretion by finding prison officials had waived their qualified immunity defense in a prisoner’s civil rights action.

The lawsuit was filed by John Henricks, incarcerated at Ohio’s Pickaway Correctional Institution, and included claims against Dr. Ida Gonzalez and guard Michael Maynard.

Henricks began to experience symptoms of acute appendicitis on August 19, 2006. Gonzalez ordered him to be taken to a hospital. At the emergency room, Maynard refused to heed the doctor’s request for the removal of Henricks’ handcuffs and other restraints.

A 45-minute argument ensued before Maynard finally removed the restraints and Henricks was taken in for emergency surgery. The surgery, which Henricks alleged was made more extensive by Maynard’s delay in removing the restraints, caused nerve damage to Henricks’ right leg.

The claims against Gonzalez arose from her “consistent refusal to prescribe a medication called Neurontin for the pain caused by the nerve damage, in spite of the view of several other doctors, including specialists, that Neurontin was necessary to treat Henricks’ pain.” Instead she prescribed Motrin, which was not effective and caused him to suffer “unreduced pain resulting from his nerve damage during much of 2007.”

In response to Henricks’ pro se complaint, Gonzalez and Maynard filed a motion to dismiss invoking qualified immunity. Their motion was denied, with the court finding that Henricks had stated a colorable claim without addressing the qualified immunity issue. The defendants did not pursue their qualified immunity defense and did not file an answer to the complaint, but litigated Henricks’ discovery requests as the case progressed.

After the close of discovery, Gonzalez and Maynard moved for summary judgment in May 2013. They asserted they were entitled to judgment as a matter of law, and invoked the defenses of qualified immunity and failure to exhaust administrative remedies as to Gonzalez. The district court denied the motion and held those defenses were waived, as they had not been raised in a responsive pleading. The defendants appealed.

The Sixth Circuit held the only issue it had jurisdiction over in the interlocutory appeal was waiver of the affirmative defense of qualified immunity by failing to assert it in a responsive pleading.

The appellate court noted it was well settled that “a failure to plead an affirmative defense ... results in a waiver of that defense.” Gonzalez and Maynard provided “no reasonable explanation for their failure to plead qualified immunity and were very tardy in raising the defense.” Their lack of diligence rendered it “permissible for the district court to refuse to inconvenience itself and Henricks and further delay trial to make up for the defendants’ errors.”

Failure to assert the defense earlier could have led Henricks to fairly conclude the defendants did not intend to assert a qualified immunity defense. Under the facts of this case, the Court of Appeals held Henricks would be sufficiently prejudiced if the defendants’ tardiness was excused. The district court’s order was affirmed, and the case remains pending on remand. See: Henricks v. Pickaway Correctional Institution, 782 F.3d 744 (6th Cir. 2015).

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Related legal case

Henricks v. Pickaway Correctional Institution