Derek Thomas v. Jacqueline Carmichael

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-2552

DEREK THOMAS,

Plaintiff-Appellant,

v.

JACQUELINE CARMICHAEL, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 2:21-cv-00160 — James R. Sweeney II, Chief Judge.

____________________

ARGUED MAY 28, 2025 — DECIDED JANUARY 23, 2026

____________________

Before RIPPLE, ST. EVE, and KOLAR, Circuit Judges.

KOLAR, Circuit Judge. Derek Thomas served part of his

criminal sentence at the Federal Correctional Complex (FCC)

in Terre Haute, Indiana. He alleges that, while housed there,

he was attacked by his cellmate repeatedly and suffered seri-

ous injuries. He now brings claims against several prison of-

ficials from FCC Terre Haute under Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

(1971). He says two of these officials violated the Eighth

2 No. 23-2552

Amendment by failing to protect him from his cellmate. And

he says all defendants violated the Eighth Amendment by act-

ing with deliberate indifference to his serious medical needs.

The district court granted defendants summary judgment,

and Thomas now appeals.

The facts of this case are disturbing. We take Thomas at

his word—and the evidence certainly seems to suggest—that

he was brutally attacked. And perhaps corrections officials

could have done more to protect Thomas. But we are not

asked to decide whether an attack occurred or whether cor-

rections officials could have done more to prevent an attack.

With a few nuances more fully discussed below, we are pri-

marily confronted with two questions: (1) does Thomas pre-

sent a claim previously recognized under Bivens or the very

few cases to expand Bivens; and (2) can Thomas defeat the de-

fendants’ qualified-immunity defense even though he did not

point to any clearly established law in the district court? Prec-

edent precludes us from answering these questions in

Thomas’s favor. Thus, we affirm the district court’s judgment.

I. Background

We present the facts and draw all reasonable inferences in

Thomas’s favor, as he is the non-movant. Taylor v. Schwarzhu-

ber, 132 F.4th 480, 486 (7th Cir. 2025).

A. Underlying Facts

In 2014, Thomas was sentenced to fifteen years in prison

after pleading guilty to production of child pornography. Af-

ter he was sentenced, he moved among various prisons until,

three years into his sentence, he was transferred to FCC Terre

Haute. This prison has two facilities. One is the Federal

No. 23-2552 3

Correctional Institute (FCI) Terre Haute; the other is the

United States Penitentiary (USP) Terre Haute.

Officials originally placed Thomas in the general popula-

tion of the FCI. The day he was placed in general population,

inmates there asked about his conviction. When Thomas con-

fessed he was a sex offender, the inmates told him to check

into protective custody immediately or be killed. Thomas did

so and was sent to the Special Housing Unit (SHU) within the

FCI.

Even while in the SHU, though, inmates sought to harm

Thomas by tainting his food with pebbles, staples, chicken

bones, and shards of glass. Thomas told Dr. Jacqueline Car-

michael, a psychologist at FCC Terre Haute (and a defendant

here), that he could not eat his food because it was consist-

ently tainted. A day after he said this, staff transferred

Thomas to another SHU, this one within the USP.

About two weeks after he was transferred, Thomas was

placed in a cell with a man whose initials are G.L. Things be-

came violent once G.L. learned that Thomas was a sex of-

fender. Within thirty minutes of their meeting, G.L. beat

Thomas unconscious and threatened to kill him if he reported

the beating. Thomas tried to covertly tell staff about this beat-

ing by slipping a note under his cell door as G.L. slept. The

note went unanswered, though Dr. Erin Conner, a psycholo-

gist in the SHU at the USP (and a defendant here), later told

Thomas she saw the note.

A week after this first beating, Thomas told his correc-

tional counselor, Tracy Joslyn (also a defendant here), about

the attack. She reportedly replied: “you don’t get to pick who

you cell with. You’re going back[.]” In the following days,

4 No. 23-2552

G.L. beat Thomas multiple times and knocked out two of his

teeth.

Around two weeks after Thomas told Counselor Joslyn

about G.L.’s violence, Thomas and G.L. were transferred to-

gether to the SHU in the FCI. They remained cellmates. A few

days after this transfer, G.L. choked Thomas unconscious.

Thomas then wrote to Dr. Carmichael directly—again slip-

ping a note under his cell door while G.L. slept—that G.L. was

beating him. Dr. Carmichael later admitted receiving this let-

ter. During Dr. Carmichael’s rounds the following week,

Thomas covertly showed her his bruises. He mouthed “help

me” and, pointing to G.L., said “beating me[.]” In response,

Dr. Carmichael held up a clipboard that read “do you need

[Special Investigative Services] to pull you out?” to which

Thomas said “yes[.]”

But Thomas was not removed from his cell and alleges

that, later that day, G.L. beat him, choked him unconscious,

and then raped him. In a later interview with officials,

Thomas described waking up on his bunk—after G.L. choked

him—with his pants down, ointment on his anus, and pain in

his rectum. From this, Thomas said, he “deduce[d] that [he]

had been raped.” During Dr. Carmichael’s rounds the next

week, Thomas told her G.L. had raped him. Dr. Carmichael

told Thomas she understood and that she was forwarding his

earlier note to her boss. Later that day, Thomas was removed

from his cell and placed in a new cell.

The day after he was removed from his cell, Thomas

posted a request for medical attention on his cell door using a

standard form. In it he said he had “injuries and blood in [his]

stools.” That same day he also wrote to Dr. Carmichael asking

to speak with her because he was not sleeping and was “still

No. 23-2552 5

in shock.” Two days after sending her this note, he sent her

another.

The next week, Thomas told Counselor Joslyn he had been

raped and asked for medical and psychological treatment. He

also asked for a grievance form to complain that he had not

yet been seen by any medical staff. A week after this conver-

sation, Counselor Joslyn gave him a grievance form.

After receiving a report that Thomas was suicidal, Dr. Car-

michael met with Thomas and conducted a suicide risk as-

sessment. Thomas testified he told Dr. Carmichael about the

rape, but her report does not reflect this information. Her re-

port states Thomas denied suicidality, and that she concluded

Thomas was a “low” acute suicide risk.

The same month Dr. Carmichael assessed Thomas,

Thomas filed a grievance about the rape, which prompted Dr.

Conner and Special Investigative Services Lieutenant Jamie

Baker (a defendant in this case) to interview him. The same

day he was interviewed, Thomas saw Nurse Matthew

Worthington (another defendant), who explained that he

could not collect any evidence of the rape given how much

time had passed. Though Thomas showed Nurse Worthing-

ton his broken teeth and bruises, Thomas claims Nurse

Worthington did not physically examine him.

After Thomas disclosed the rape in a letter to outside enti-

ties, he underwent another evaluation by Nurse Corey

Pointer (another defendant) as part of the protocol mandated

by the Prison Rape Elimination Act. Thomas testified that

Nurse Pointer’s evaluation was “humiliating,” because he

was ordered to disrobe in front of correctional officers who

then laughed at him. Thomas also said that he asked Nurse

6 No. 23-2552

Pointer to refer him to a dentist and to physicians who could

treat his abdominal and shoulder injuries but that Nurse

Pointer did not do so. Nurse Pointer’s report states he did not

find any injuries during his exam.

Shortly thereafter, in February 2018, Thomas was trans-

ferred to a different federal correctional complex.

B. Procedural History

Thomas filed a pro se complaint in federal district court.

He alleged he suffered physical and psychological pain be-

cause of his treatment at FCC Terre Haute, including lost

teeth, pain in his shoulder and abdomen, aggravation of a

preexisting hernia, and post-traumatic stress disorder.

The district court screened Thomas’s amended complaint

and permitted him to proceed with his claim that Dr. Carmi-

chael and Counselor Joslyn failed to protect him in violation

of the Eighth Amendment. The court also allowed him to pro-

ceed with his claim that Drs. Carmichael and Conner, Coun-

selor Joslyn, Lieutenant Baker, and Nurses Pointer, Worthing-

ton, and Karl Norris 1 were deliberately indifferent to his seri-

ous medical needs in violation of the Eighth Amendment. Af-

ter denying Thomas’s request to recruit counsel, the district

court reconsidered and recruited counsel for him.

The defendants moved for summary judgment in March

2023, arguing (among other things) that qualified immunity

barred Thomas’s deliberate-indifference claim. At this point

1 Thomas names Nurse Norris as a defendant but does not discuss

him further on appeal. He thus fails to present an argument that Nurse

Norris was personally involved in his delayed treatment, see Est. of Miller

by Chassie v. Marberry, 847 F.3d 425, 428 (7th Cir. 2017), so we do not con-

sider this claim further.

No. 23-2552 7

Thomas’s relationship with recruited counsel deteriorated.

After the district court denied counsel’s first motion to with-

draw, counsel filed a response to the defendants’ motion for

summary judgment, though this response did not address

qualified immunity. Thomas, in a letter to the court, took issue

with other aspects of his counsel’s response, “disavow[ed]” it,

and sought more time to review it with counsel. In response,

the magistrate judge directed that, were Thomas to proceed

without counsel, he would need to file his own response

within seventeen days of the magistrate judge’s order. In ad-

dressing Thomas’s specific complaints, the magistrate judge

commented counsel’s response was “competent,” though the

court expressed “nothing as to the merits” of the response.

Thomas later “verified that he wishe[d] to proceed with re-

cruited counsel’s response” to summary judgment.

Ultimately, the district court granted defendants

summary judgment. The court concluded that Thomas could

not bring his failure-to-protect claim at all. The claim, the

court held, presented a new Bivens context and special factors

counseled against the judicial creation of a new damages

remedy. As for Thomas’s deliberate-indifference claim, the

court concluded defendants were entitled to qualified

immunity. By failing to address qualified immunity in

opposing summary judgment, the district court said, Thomas

had not met his burden of defeating the defense.

Alternatively, the court said it would dismiss this claim even

were it to consider it. Like his failure-to-protect claim, the

court determined Thomas’s deliberate-indifference claim

presented a new Bivens context for which a new remedy was

not warranted.

8 No. 23-2552

Thomas, pro se, filed a timely notice of appeal. After re-

viewing the appeal, we recruited counsel for him and set the

case for oral argument. 2

II. Discussion

We review a district court’s grant of summary judgment

de novo, viewing all facts and drawing all reasonable infer-

ences in the light most favorable to Thomas. See Taylor, 132

F.4th at 486. Summary judgment is proper if “there is no gen-

uine dispute as to any material fact” and the moving party “is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

We proceed in two steps. First, we address whether

Thomas can bring his failure-to-protect claim under Bivens.

We conclude he cannot. Second, we address whether Thomas

may oppose the defendants’ qualified-immunity defense on

appeal after failing to oppose qualified immunity before the

district court. We conclude he may not. Thus, we affirm the

district court’s judgment in favor of defendants.

A. Failure to Protect

Thomas alleges that Dr. Carmichael and Counselor Joslyn

violated the Eighth Amendment by failing to protect him

from G.L. Whether he can proceed on this claim turns on

whether permitting his claim would create a new private

right of action under Bivens. But we recently declined to per-

mit a Bivens claim like Thomas’s because it would impermis-

sibly expand Bivens. Thus, binding precedent compels us to

affirm the district court’s judgment dismissing this claim.

2 We thank recruited counsel for their able written and oral advocacy.

No. 23-2552 9

In Bivens, the Supreme Court inferred a private right of ac-

tion to sue federal officials under the Fourth Amendment. It

permitted a plaintiff, who alleged agents from the Federal Bu-

reau of Narcotics violated his rights under the Fourth Amend-

ment, to sue the agents for damages. Bivens, 403 U.S. at 397.

The Supreme Court later expanded Bivens to include two

other private rights of action against federal authorities.

In Davis v. Passman, the Court implied a claim, based on the

Fifth Amendment, against a congressman who allegedly dis-

criminated against a staffer because of her sex. 442 U.S. 228

(1979). Then in Carlson v. Green, the Court implied a claim,

based on the Eighth Amendment, against prison officials who

allegedly provided a plaintiff inadequate medical care. 446

U.S. 14 (1980).

The Court, however, has not expanded Bivens since Carl-

son. Egbert v. Boule, 596 U.S. 482, 491 (2022). “For the past 45

years,” the Court recently observed, it “has consistently de-

clined to extend Bivens to new contexts.” Goldey v. Fields, 606

U.S. 942, 945 (2025) (per curiam). The Court’s most recent de-

cisions effectively limit any effort to expand Bivens beyond its

present scope. “At bottom,” the Court has said, “creating a

cause of action is a legislative endeavor[,]” not one for courts.

Egbert, 596 U.S. at 491. Put differently, recognizing a new

cause of action under Bivens is now “a disfavored judicial ac-

tivity.” Id. (quoting Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)).

Nonetheless, to determine whether to permit a claim un-

der Bivens, we engage in a two-step analysis. At bottom, both

steps “often resolve to a single question: whether there is any

reason to think that Congress might be better equipped to cre-

ate a damages remedy.” Id. at 492.

10 No. 23-2552

At step one, we ask whether a plaintiff presents a new

claim under Bivens—one that is “different in a meaningful

way from” Bivens, Davis, or Carlson. Ziglar, 582 U.S. at 139–40;

see Egbert, 596 U.S. at 492–93. A meaningful difference might

include “the rank of the officers involved[,]” “the constitu-

tional right at issue[,]” or “the risk of disruptive intrusion by

the Judiciary into the functioning of other branches[,]” among

other things. Ziglar, 582 U.S. at 140. If we determine the claim

is the same as Bivens, Davis, or Carlson, it may go forward and

we need not reach step two. Id.

But if a plaintiff instead presents “a new Bivens context,”

at the second step we must determine whether “the Judiciary

is at least arguably less equipped than Congress to ‘weigh the

costs and benefits of allowing a damages action to proceed.’”

Egbert, 596 U.S. at 492 (quoting Ziglar, 582 U.S. at 136, 139). To

do so we ask whether there are any “special factors counsel-

ing hesitation in the absence of affirmative action by Con-

gress.” Ziglar, 582 U.S. at 135 (quoting Carlson, 446 U.S. at 18).

At step one, Thomas argues his failure-to-protect claim

does not present a new Bivens context. In support, he com-

pares his claim to the ones in Farmer v. Brennan, 511 U.S. 825,

830 (1994), and Carlson, 446 U.S. at 14. But our circuit has al-

ready decided that claims like Thomas’s are foreclosed by Su-

preme Court precedent. Sargeant v. Barfield, 87 F.4th 358 (7th

Cir. 2023).

In Sargeant, the plaintiff brought an action under Bivens al-

leging that a prison official failed to protect him by placing

him “in cells with prisoners that [the official] knew were vio-

lent.” Id. at 361. The plaintiff in Sargeant argued the Supreme

Court’s decision in Farmer—addressing a claim that prison of-

ficials violated the Eighth Amendment by failing to protect a

No. 23-2552 11

plaintiff from other inmates—showed that Bivens covered his

claim. Id. We disagreed. We noted the Court in Farmer merely

assumed, but did not decide, that the plaintiff had a Bivens

remedy for her failure-to-protect claim. Accordingly, we con-

cluded, Farmer did not establish a new Bivens context. Id. at

365. “Not once has the Supreme Court mentioned Farmer” in

subsequent cases reciting available Bivens claims, we ob-

served. Id. And, we added, “it would have if Farmer created a

new context or clarified the scope of an existing one.” Id. “A

silent assumption in an opinion cannot generate binding prec-

edent.” Id. Thus, to the extent Thomas relies on Farmer to ar-

gue we should permit his Bivens failure-to-protect claim

against Dr. Carmichael and Counselor Joslyn, Sargeant fore-

closes this argument. 3

Sargeant also forecloses Thomas’s reliance on Carlson. Af-

ter rejecting the plaintiff’s reliance on Farmer in Sargeant, we

held that his claim differed in a meaningful way from Carlson.

Id. at 366–67. We explained that a claim involving an inmate

being housed with violent prisoners “arose in a different

prison setting” from Carlson, where the inmate received insuf-

ficient medical treatment following an asthma attack. Id. at

366. Plaintiff’s failure-to-protect claim, we said, would “invar-

iably implicate housing policies, which factor in a sensitive

mixture of things we are ill-positioned to assess—a prison’s

determinations about safety, discipline, and resources.” Id. at

3 Sargeant is consistent with the decisions reached by our sister cir-

cuits. See Fisher v. Hollingsworth, 115 F.4th 197, 206 (3d Cir. 2024) (declining

to extend a Bivens remedy to the failure-to-protect context); Bulger v. Hur-

witz, 62 F.4th 127, 139–42 (4th Cir. 2023) (same); Chambers v. Herrera, 78

F.4th 1100, 1105–07 (9th Cir. 2023) (same); Johnson v. Terry, 119 F.4th 840,

856, 862 (11th Cir. 2024) (same).

12 No. 23-2552

367. Such failure-to-protect claims, we observed, “would in-

terfere with a vastly different part of prison operations—

housing assignments instead of medical care”—and would

thus “threaten[] to intrude in ways Carlson did not contem-

plate.” Id. Putting these differences aside, we also explained

that Congress’s creation of an alternative remedial scheme in

the Prison Litigation Reform Act suggested that the judiciary

was comparatively less equipped to recognize a new damages

remedy. Id. at 367–68.

Thomas attempts to distinguish his case from Sargeant. He

asserts that because he has already been transferred to a new

facility and the defendants are not responsible for housing de-

cisions, his claim “would not impact prison housing poli-

cies[.]” But we do not understand the Supreme Court’s prec-

edent to require, or even permit, such granular distinctions.

Allowing inmates to pursue damages under Bivens for failure-

to-protect claims implicates prison housing policies, regard-

less of whether a particular plaintiff has since been transferred

to a new facility. Moreover, the special factors that counseled

hesitation in Sargeant apply with equal force here: the Prison

Litigation Reform Act and prison grievance system provide

inmates like Thomas with an alternative remedial path.

Thus, like the plaintiff’s claim in Sargeant, Thomas’s

failure-to-protect claim “cannot go forward” under present

Supreme Court precedent “because it presents separation-of-

powers concerns and special factors not accounted for by any

of the Supreme Court’s three Bivens precedents.” Sargeant, 87

F.4th at 369.

No. 23-2552 13

B. Deliberate Indifference

We turn next to Thomas’s deliberate-indifference claim.

He alleges all defendants were deliberately indifferent to his

serious medical needs in violation of the Eighth Amendment.

Because we agree with the district court that Thomas failed to

show defendants are not entitled to qualified immunity, we

affirm. Since we affirm on this basis, we do not address

whether Thomas’s claim presents a new Bivens context.

In suing a government official for a constitutional viola-

tion, a plaintiff must overcome qualified immunity, which

shields a government official from liability unless she violates

clearly established law. Tousis v. Billiot, 84 F.4th 692, 697 (7th

Cir. 2023). “Qualified immunity is an affirmative defense, but

once the defendant raises it, the burden shifts to the plaintiff

to defeat it.” Taylor v. City of Milford, 10 F.4th 800, 806 (7th Cir.

2021) (cleaned up). To determine whether qualified immunity

attaches, we ask: (1) “whether the facts, taken in the light most

favorable to the party asserting the injury show that the [offi-

cial’s] conduct violated a constitutional right,” and

(2) “whether the right at issue was ‘clearly established’ at the

time of the [official’s] alleged misconduct.” Tousis, 84 F.4th at

697 (cleaned up). If the answer under either prong is “no,”

immunity attaches and bars a plaintiff’s claim. Qualified im-

munity is a question of law, Smith v. Finkley, 10 F.4th 725, 734

(7th Cir. 2021), though whether it applies is fact intensive, An-

derson v. Creighton, 483 U.S. 635, 641 (1987); Mabes v. Thompson,

136 F.4th 697, 713 (7th Cir. 2025).

In moving for summary judgment below, defendants

invoked qualified immunity from plaintiff’s deliberate-

indifference claim. At this point, “the burden shift[ed] to the

plaintiff to defeat it.” City of Milford, 10 F.4th at 806 (citation

14 No. 23-2552

omitted). But in his response opposing summary judgment,

Thomas did not address qualified immunity. The district

court held that, by failing to address qualified immunity,

Thomas necessarily failed to meet his “burden of defeating

it.”

Thomas acknowledges that his omission below means he

either waived or forfeited this argument for appeal, though

he urges us to address his argument anyway. We “generally

do not consider issues raised for the first time on appeal.”

Henry v. Hulett, 969 F.3d 769, 786 (7th Cir. 2020) (en banc). An

argument not raised below is either “waived or forfeited[.]”

Seats v. Nurse, 152 F.4th 874, 881 (7th Cir. 2025). Waiver is the

“intentional relinquishment or abandonment of a known

right,” whereas “forfeiture is the mere failure to raise a timely

argument, due to either inadvertence, neglect, or oversight.”

Henry, 969 F.3d at 786 (citation omitted).

As we recently explained, “our ability to overlook waiver

in civil cases” is “severely constricted.” Appvion, Inc. Retire-

ment Savings & Employee Stock Ownership Plan v. Buth, 99 F.4th

928, 954 (7th Cir. 2024). And though we can review a forfeited

argument in a civil appeal for plain error, we do so only when

“a party can demonstrate that: ‘(1) exceptional circumstances

exist; (2) substantial rights are affected; and (3) a miscarriage

of justice will occur if plain error review is not ap-

plied.’” Henry, 969 F.3d at 786 (citation omitted). We have sole

discretion to decide which rare case meets this standard. Id.

Since we decided Henry, we have reviewed forfeited argu-

ments in civil appeals only a handful of times. See, e.g., Hacker

v. Dart, 62 F.4th 1073, 1080–83 (7th Cir. 2023); Bourgeois v. Wat-

son, 977 F.3d 620, 631 (7th Cir. 2020). And we have declined to

apply plain-error review “in too many civil cases to count.”

No. 23-2552 15

Bronson v. Ann & Robert H. Lurie Children's Hosp. of Chicago, 69

F.4th 437, 452 (7th Cir. 2023).

Thomas argues that, even if he waived his opposition to

qualified immunity—even if he knowingly relinquished his

argument below—we should review the argument on appeal.

But in Henry, we held defendants waived their qualified im-

munity defense and thus declined to address the merits of the

defense on appeal. 969 F.3d at 786. We need not spend much

time on waiver, however, because Thomas has clearly for-

feited his argument.

And this is not one of those few cases where we will re-

view a forfeited argument for plain error. As noted above, we

may review a forfeited argument in a civil case only rarely,

and do so only if, among other things, we determine “excep-

tional circumstances exist[.]” Id. (citation omitted). Thomas

argues exceptional circumstances exist here because of his dif-

ficulties below with his counsel during summary-judgment

proceedings. As our dissenting colleague explains, Thomas

faced a difficult choice on a tight deadline. But Thomas has

cited no case, and we have found none, finding exceptional

circumstances based on the facts leading to the forfeiture. Ra-

ther, whether exceptional circumstances exist generally gets

at broader, systemic concerns. We have said that “these cir-

cumstances include when a forfeited ground is ‘founded on

concerns broader than those of the parties,’” such as comity,

federalism interests, and the conservation of judicial re-

sources. Bourgeois, 977 F.3d at 631 (citation omitted). An ex-

ample is “a statutory-construction question that has the po-

tential to affect large numbers of people beyond the parties

[in a given] case.” CNH Indus. America LLC v. Jones Lang

LaSalle Americas, Inc., 882 F.3d 692, 705 (7th Cir. 2018).

16 No. 23-2552

Thomas’s forfeited argument does not present concerns

beyond his case, like a far-reaching question of law, comity,

or federalism. It, like most qualified-immunity analyses, is a

fact-specific inquiry that would not “resolve issues of great

significance for other parties.” Hacker, 62 F.4th at 1082. We do

not dispute that this case is of the utmost importance to

Thomas. And we have considered the unfortunate circum-

stances here: that Thomas’s recruited counsel, with whom he

clashed, did not address qualified immunity; and that the

magistrate judge, in addressing different complaints Thomas

had with his counsel’s summary-judgment response, com-

mented favorably on the response. But we cannot conclude

exceptional circumstances exist here given that Thomas, like

all civil litigants, has no right to counsel in a civil case. See

Turner v. Rogers, 564 U.S. 431, 441 (2011). And because

Thomas cannot show exceptional circumstances are present

here, we cannot apply plain-error review to his forfeited ar-

gument.

To be sure, this is a harsh result for Thomas. But we ob-

serve our rules of appellate preservation strictly to be fair to

all litigants, present and future. We do not address late-stage

arguments so that “the opposing party is not prejudiced by

being denied sufficient notice to respond to an argument.”

Henry, 969 F.3d at 785 (quoting Hernandez v. Cook County Sher-

iff’s Off., 634 F.3d 906, 913 (7th Cir. 2011)). Reviewing

Thomas’s argument despite his forfeiture would undoubt-

edly prejudice the defendants here.

Considering Thomas’s argument would short-circuit our

established process to litigate qualified immunity. Once the

defense of qualified immunity is raised, a defendant is enti-

tled to dismissal unless a plaintiff comes forward with facts

No. 23-2552 17

showing a constitutional violation and law showing his right

was “clearly established” at the time of the alleged violation.

Siddique v. Laliberte, 972 F.3d 898, 902–03 (7th Cir. 2020). As we

have explained: “The plaintiff bears the burden of demonstrat-

ing that a right was clearly established at the time the alleged

violation occurred.” Green v. Newport, 868 F.3d 629, 633 (7th

Cir. 2017) (emphasis added). And though qualified immunity

is a question of law whether it applies is fact bound. Anderson,

483 U.S. at 641; Mabes, 136 F.4th at 713. Allowing a plaintiff to

attempt to meet his burden for the first time on appeal risks

inviting factual questions that a defendant may not have had

the opportunity to litigate below. Cf. Allen v. City of Chicago,

865 F.3d 936, 944 (7th Cir. 2017). And we appreciate the dis-

sent’s view that the context surrounding Thomas’s forfeiture

counsels for an exercise of our discretion to consider his argu-

ment. But excusing Thomas’s forfeiture based on the break-

down of his relationship with his counsel would deny his op-

ponents a key procedural protection. Addressing Thomas’s

argument now would deprive defendants of the procedural

protections our qualified-immunity precedent affords them.

In the interest of “maintain[ing] the efficiency, fairness,

and integrity of the judicial system for all parties,” we must

uphold our general rule of not considering arguments raised

for the first time on appeal. Boyers v. Texaco Ref. & Mktg., Inc.,

848 F.2d 809, 812 (7th Cir. 1988). For, especially in questions

that are fact bound, “[t]o reverse the district court on grounds

not presented to it would undermine the essential function of

the district court.” See id. Because Thomas failed to meet his

burden to defeat qualified immunity, we affirm summary

judgment on Thomas’s deliberate-indifference claim.

18 No. 23-2552

III. Conclusion

For the foregoing reasons, we AFFIRM.

No. 23-2552 19

RIPPLE, Circuit Judge, dissenting in part. I respectfully dis-

sent from the panel majority’s decision to affirm the grant of

qualified immunity to Nurses Pointer and Worthington.

A.

In his response to the defendants’ motion for summary

judgment, Mr. Thomas failed to respond to the defendants’

assertion that they were entitled to qualified immunity. Such

an omission generally renders any opposition to qualified im-

munity waived or forfeited. 1 However, we have discretion to

resolve issues raised for the first time on appeal. Singleton v.

Wulff, 428 U.S. 106, 121 (1976). 2 In this case, the particular cir-

cumstances before us warrant a favorable exercise of that dis-

cretion.

Context matters. The defendants moved for summary

judgment on March 16, 2023, raising a defense of qualified im-

munity against Mr. Thomas’s deliberate indifference claim.

Mr. Thomas’s relationship with appointed counsel deterio-

rated as the deadline for filing his summary judgment re-

sponse neared. After the district court denied counsel’s first

motion to withdraw, counsel filed a response to the defend-

ants’ motion for summary judgment that did not address di-

rectly the defendants’ qualified immunity defense. Although

1 See Nichols v. Michigan City Plant Plan. Dep’t, 755 F.3d 594, 600 (7th Cir.

2014) (“The non-moving party waives any arguments that were not raised

in its response to the moving party’s motion for summary judgment.”);

Hacker v. Dart, 62 F.4th 1073, 1080 (7th Cir. 2023) (“Ordinarily, we will not

consider arguments forfeited by a civil litigant.”).

2 See also Sebesta v. Davis, 878 F.3d 226, 234 (7th Cir. 2017) (reaching the

merits rather than resting on forfeiture, even though the plaintiff never

addressed the defendants’ qualified immunity defense in the district

court).

20 No. 23-2552

he did not address that omission, Mr. Thomas took issue with

other aspects of counsel’s filing and “disavow[ed]” it, seeking

more time to review it with counsel. 3 In response, the magis-

trate judge issued an order directing that, were Mr. Thomas

to proceed pro se and disavow reliance on his counsel’s op-

position to summary judgment, he would have sixteen days

to file his own pro se response to the motion for summary

judgment. Notably, in the text of the order, the magistrate

judge also wrote that counsel’s filing was “competent and ad-

vocate[d] for Mr. Thomas in an appropriate manner.” 4

Mr. Thomas therefore found himself faced with a difficult

decision. He had to prepare, in a matter of days, his own re-

sponse, or he had to proceed with the existing response pre-

pared by counsel, a response that the magistrate judge explic-

itly had deemed “competent.” 5 Mr. Thomas reasonably chose

the latter path. The majority’s opinion does not reckon with

the influence that a magistrate judge’s guidance would have

on a pro se litigant, characterizing it instead as a matter of a

“difficult choice on a tight deadline.” Thomas, Slip Op. at 15.

Although the magistrate judge purported to “express[] noth-

ing as to the merits,” 6 her comments, when read in context,

could well have led Mr. Thomas to believe that counsel’s re-

sponse was adequate to protect his rights with respect to qual-

ified immunity. Under these circumstances, I would reach the

merits of the qualified immunity claim. The “efficiency, fair-

ness, and integrity of the judicial system for all parties”

3 R.291 at 4.

4 R.295 at 1 (emphasis added).

5 R.295 at 1.

6 Id.

No. 23-2552 21

requires no less. Thomas, Slip Op. at 17 (cleaned up). The panel

majority’s insistence that “exceptional circumstances” gener-

ally is limited to cases presenting broad systemic concerns

simply cannot be squared with this standard.

B.

Because I would reach the merits of the qualified immun-

ity defense, I must first examine whether Mr. Thomas’s delib-

erate indifference claim can survive in light of the Supreme

Court’s recent clarification of the boundaries of the Bivens

doctrine. It is a question that need not detain us long. The

basic viability of Mr. Thomas’s deliberate indifference claim

may be resolved at the first step of the methodology pre-

scribed by the Supreme Court. In Carlson, the Supreme Court

recognized an implied damages remedy for an inmate who

had received constitutionally inadequate medical care. Carl-

son v. Green, 446 U.S. 14, 18–19 (1980). First in Brooks v. Rich-

ardson, 131 F.4th 613 (7th Cir. 2025), and later in Watkins v.

Mohan, 144 F.4th 926 (7th Cir. 2025), we confirmed that “Carl-

son remains good law” and allows federal prisoners to bring

Bivens claims when prison officials act with deliberate indif-

ference to their serious medical needs. Watkins, 144 F.4th at

931; Brooks, 131 F.4th at 615. Accordingly, our precedent es-

tablishes that Mr. Thomas’s case does not arise in a new con-

text but rather exists within the confines of Carlson. 7 I would

adhere to that precedent today.

7 The district court based its determination that Mr. Thomas’s claim arose

in a new Bivens context on the fact that his medical situation was not

emergent and did not prove fatal. The district court’s summary judgment

order, issued in 2023, predated Watkins, where we clarified that non-

emergent medical situations fall within the purview of Carlson. Watkins v.

Mohan, 144 F.4th 926, 936 (7th Cir. 2025) (“Carlson thus also dealt with

22 No. 23-2552

Next, I must examine whether any of the defendants may

benefit from the protection of the qualified immunity defense.

Qualified immunity protects public officials “from liability

for reasonable mistakes made while performing their public

duties.” Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013).

“The doctrine ‘balances two important interests—the need to

hold public officials accountable when they exercise power ir-

responsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties rea-

sonably.’” Sabo v. Erickson, 128 F.4th 836, 843 (7th Cir. 2025)

(en banc) (quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009)).

To prevail on a deliberate indifference claim, a plaintiff

must prove (1) that he had an objectively serious medical con-

dition (2) to which the individual defendant was deliberately

indifferent. Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir.

2016) (en banc). To defeat a qualified immunity defense, in

addition to showing that the defendant official was deliber-

ately indifferent to the plaintiff’s serious medical need, the

plaintiff must establish that the right was clearly established

at the time of the challenged conduct. Sabo, 128 F.4th at 843;

Orlowski v. Milwaukee County, 872 F.3d 417, 421 (7th Cir. 2017).

A “right is clearly established when the law is sufficiently

clear that every reasonable official would understand that

what he is doing is unlawful.” Sabo, 128 F.4th at 843–44 (cita-

tion modified) (quoting District of Columbia v. Wesby, 583 U.S.

management of a chronic, non-emergent medical condition requiring

continuous, periodic treatment over many months.”); see also Brooks v.

Richardson, 131 F.4th 613, 615 (7th Cir. 2025) (“As for the duration of the

poor care or the gravity of the condition: these seem more pertinent to the

merits than to determining the scope of the holding in Carlson.”).

No. 23-2552 23

48, 63 (2018)). 8 Accordingly, qualified immunity shields the

defendant official from liability unless he had notice that he

was violating the plaintiff’s clearly established right.

I therefore must examine the record to determine whether

any of the defendants were deliberately indifferent to

Mr. Thomas’s serious medical needs. See Petties, 836 F.3d at

728; see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A prison

official acts with deliberate indifference “when he knows of a

substantial risk of harm to an inmate and either acts or fails to

act in disregard of that risk.” Arnett v. Webster, 658 F.3d 742,

751 (7th Cir. 2011); accord Farmer v. Brennan, 511 U.S. 825, 837

(1994). Inexplicably delaying an inmate’s treatment when the

delay exacerbates the inmate’s injury or prolongs unneces-

sarily his pain can constitute deliberate indifference. Petties,

836 F.3d at 730–31. 9 An inmate may also establish deliberate

indifference by demonstrating that prison officials persisted

with an ineffective course of treatment. Riley v. Waterman, 126

F.4th 1287, 1296 (7th Cir. 2025). 10

8 Accord Campbell v. Kallas, 936 F.3d 536, 545 (7th Cir. 2019) (explaining that

“[t]he principle of fair notice pervades the doctrine”).

9 See also Goodloe v. Sood, 947 F.3d 1026, 1032 (7th Cir. 2020) (determining

that a three-month delay in arranging for an inmate to see a specialist sup-

ported the inmate’s claim of deliberate indifference); Perez v. Fenoglio, 792

F.3d 768, 778–79 (7th Cir. 2015) (concluding that an inmate’s “ten-month

delay” in receiving “meaningful treatment” stated a claim for deliberate

indifference).

10 See also Greeno v. Daley, 414 F.3d 645, 654–55 (7th Cir. 2005) (determining

that a jury could find deliberate indifference where the medical defend-

ants ignored an inmate’s requests for treatment, declined to conduct nec-

essary testing, and administered ineffective medication).

24 No. 23-2552

“Qualified immunity is an individual defense available to

each individual defendant in his individual capacity.” Est. of

Williams by Rose v. Cline, 902 F.3d 643, 651 (7th Cir. 2018)

(quoting Bakalis v. Golembeski, 35 F.3d 318, 326–27 (7th Cir.

1994)). I therefore must examine the record as it pertains to

each defendant. See, e.g., Petties, 836 F.3d at 731–33 (evaluating

separately the actions of individual defendants to determine

whether each was deliberately indifferent). Moreover, I must

undertake this scrutiny at a sufficient level of particularity to

make a meaningful evaluation of each defendant’s right to the

qualified immunity defense. Ashcroft v. al-Kidd, 563 U.S. 731,

742 (2011) (reiterating that clearly established law should not

be defined “at a high level of generality”); see also Campbell v.

Kallas, 936 F.3d 536, 546 (7th Cir. 2019) (rejecting as “far too

general” the framing of an inmate’s Eighth Amendment

rights for purposes of the clearly established inquiry and ex-

plaining that “broad principles” must have “been applied in

a factual context specific enough to provide fair notice to the

defendants that their conduct was unconstitutional”).

1.

With these principles in mind, I turn first to Mr. Thomas’s

deliberate indifference claims against Nurses Pointer and

Worthington. 11 In asserting the defense of qualified immun-

ity, these defendant nurses emphasize the limited scope of

their practice. They maintain that they “do not diagnose con-

ditions, refer inmates to specialists, or provide any psycholog-

ical or dental care.” 12 This description of their practice

11 Mr. Thomas’s allegations with respect to these individuals are set forth

in the statement of facts.

12 Appellees’ Br. 54.

No. 23-2552 25

limitations cannot serve as an entirely firm foundation for a

qualified immunity defense. 13 For example, in Berry v. Peter-

man, 604 F.3d 435 (7th Cir. 2010), an inmate suffered a severe

toothache, but medical staff did not refer him to a dentist for

two months. Id. at 437. We determined that, even though the

defendant nurse could not have referred the inmate to a den-

tist without further approval, the nurse nevertheless may

have been deliberately indifferent because he could have con-

tacted his supervisors “to voice any concerns” that he had

with the doctor’s lack of treatment. Id. at 443.

In keeping with Berry, a jury could find that Nurse Pointer

was deliberately indifferent to Mr. Thomas’s serious medical

needs because he failed to forward any of Mr. Thomas’s treat-

ment requests to the appropriate prison providers, delaying

Mr. Thomas’s access to medical and dental care. Moreover,

Nurse Worthington conducted a cursory examination of

Mr. Thomas, failing to physically examine him even after see-

ing his broken teeth and bruised ribcage. Whether Nurse

Worthington demonstrated deliberate indifference by failing

to conduct a comprehensive medical examination when con-

fronted with Mr. Thomas’s injuries requires further explora-

tion at trial. See Greeno v. Daley, 414 F.3d 645, 655 (7th Cir.

2005) (noting that the defendants’ failure to conduct proper

testing supported an inmate’s deliberate indifference claim).

Finally, it was clearly established that medical staff, in-

cluding nurses, cannot ignore requests for or delay an

13 See Perez, 792 F.3d at 780 (concluding that an inmate stated a deliberate

indifference claim against a nurse who had not provided him pain medi-

cation or stitched his sizeable wound due to the limited scope of her prac-

tice because the nurse could have contacted her supervisors to ensure that

he received adequate care).

26 No. 23-2552

inmate’s access to treatment. See Berry, 604 F.3d at 443; Perez

v. Fenoglio, 792 F.3d 768, 780 (7th Cir. 2015). Nurses Pointer

and Worthington had sufficient notice that they could not ig-

nore Mr. Thomas’s requests for or delay his access to treat-

ment. Therefore, they are not entitled to qualified immunity.

2.

I now turn to Mr. Thomas’s allegations against the staff

psychologists, Drs. Carmichael and Conner. I first examine

whether the summary judgment record would support a jury

determination that Dr. Carmichael was deliberately indiffer-

ent to Mr. Thomas’s serious medical needs. Certainly, a prison

psychologist can violate the Eighth Amendment by withhold-

ing timely psychological care. 14 I need not decide in this case

whether all psychological interventions fall within the ambit

of Carlson; it is sufficient to note that the mental health care at

issue here was necessitated by physical injury occurring be-

cause of sexual violence within the prison. It was as much

“medical care” as suturing and bandaging a wound.

Assuming, as I must at this stage in the proceedings, that

Dr. Carmichael received the notes Mr. Thomas submitted to

her about G.L.’s assault and the resulting psychological harm

he suffered, her failure to respond must be evaluated by the

jury. In late November, Mr. Thomas communicated to her

that he had been sexually assaulted and specifically requested

to speak with her because he was “in shock” and thought he

14 See Blackmon v. Sutton, 734 F.3d 1237, 1245–46 (10th Cir. 2013) (explain-

ing that officials at a juvenile detention facility were not entitled to quali-

fied immunity when they were “well aware of Mr. Blackmon’s grave men-

tal health problems” and “delayed or denied him access to mental health

care”).

No. 23-2552 27

was “going crazy.” 15 There is no indication that she met with

him or provided any form of treatment until nearly a month

later. And their December encounter only occurred because

Mr. Thomas had reported to a third party that he was experi-

encing suicidal ideations. A jury should evaluate whether

these delays in treatment constituted deliberate indifference

to Mr. Thomas’s serious medical needs on Dr. Carmichael’s

part.

I turn now to whether the psychologists were deliberately

indifferent to Mr. Thomas’s concerns related to his physical

health. “[A] prison official’s decision to ignore a request for

medical assistance” demonstrates deliberate indifference,

though “an inmate is not required to show that he was liter-

ally ignored by prison staff.” Petties, 836 F.3d at 729. Although

tasked primarily with providing mental health care, psy-

chologists can be liable for insufficient physical health care “if

[they] acquiesce[] in the failure to provide necessary medical

treatment.” Mitchell v. Kallas, 895 F.3d 492, 498 (7th Cir.

2018). 16

In Mitchell, we determined that a prison psychologist was

not deliberately indifferent for her role in the prison’s pre-

venting a transgender inmate from accessing hormone ther-

apy. Id. at 499. We reached this conclusion because the psy-

chologist could not have expedited the inmate’s request nor

influenced the arbiters’ final decision on whether to provide

the requested treatment. Id. By contrast, on this record,

15 R.274-1 at 72.

16 See also Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1137 (10th

Cir. 2023) (explaining that a prison official can be liable for “den[ying] ac-

cess to someone capable of evaluating the inmate’s need for treatment”).

28 No. 23-2552

Drs. Carmichael and Conner could have expedited the provi-

sion of appropriate treatment for Mr. Thomas by referring his

requests to be medically evaluated to the appropriate mem-

bers of his care team. Even if they could not provide the ap-

propriate care necessary to treat Mr. Thomas following G.L.’s

assault, their decisions to ignore his requests for health care

evince acquiescence to the lack of treatment Mr. Thomas re-

ceived and therefore constitute deliberate indifference.

Although there is sufficient evidence for a jury to conclude

that Drs. Carmichael and Conner violated Mr. Thomas’s

rights under the Eighth Amendment, I cannot say that the law

was clearly established at the time the events took place. It is

true that “[p]rison officials have been on notice for years that

leaving serious medical conditions … untreated can amount

to unconstitutional deliberate indifference.” Id. And the seri-

ous nature of Mr. Thomas’s post-traumatic stress disorder is

not disputed here. With regard to Dr. Carmichael, however,

it was not clearly established that she could run afoul of

Mr. Thomas’s Eighth Amendment rights by delaying for one

month her provision of psychological treatment. Nor were

Drs. Carmichael and Conner on notice that, as psychologists,

their failures to refer Mr. Thomas’s concerns related to his

physical health were a violation of their constitutional duties.

Therefore, Drs. Carmichael and Conner are entitled to quali-

fied immunity.

3.

Lastly, I turn now to the non-medical defendants in

Mr. Thomas’s case, Lieutenant Baker and Counselor Joslyn.

Although “[n]on-medical defendants cannot simply ignore an

inmate’s plight,” they are entitled to “rely on the expertise of

No. 23-2552 29

medical personnel.” Arnett, 658 F.3d at 755. 17 In Arnett, a case

manager referred an inmate to medical staff when the inmate

requested a specific medication. Id. We concluded that the in-

mate failed to state a claim of deliberate indifference against

the non-medical official. Id. at 756. As we explained, “Arnett

doesn’t allege that Parker condoned or approved the medical

staff’s alleged refusal to provide him medical care, impeded

their ability to provide effective treatment, or was in a posi-

tion to take corrective action.” Id.

Applying these principles to Lieutenant Baker, I must con-

clude that the record will not support a finding that he was

deliberately indifferent to Mr. Thomas’s serious medical

needs. Lieutenant Baker interviewed Mr. Thomas about the

sexual assault allegations that Mr. Thomas had submitted in

a grievance. Following protocol, Lieutenant Baker then had

Nurse Worthington medically assess Mr. Thomas for injuries.

As a non-medical official, Lieutenant Baker was not deliber-

ately indifferent by relying on the expertise of medical per-

sonnel who he knew had evaluated Mr. Thomas.

Counselor Joslyn presents a different situation. A prison

official’s “intentionally denying or delaying access to medical

care” evinces deliberate indifference. Estelle, 429 U.S. at 104–

05; accord Petties, 836 F.3d at 729 (explaining that prison offi-

cials are deliberately indifferent when they “ignore a request

17 Accord Greeno, 414 F.3d at 655–56; see also Spruill v. Gillis, 372 F.3d 218,

236 (3d Cir. 2004) (“If a prisoner is under the care of medical experts … a

non-medical prison official will generally be justified in believing that the

prisoner is in capable hands. This follows naturally from the division of

labor within a prison.”).

30 No. 23-2552

for medical assistance”). 18 Mr. Thomas told Counselor Joslyn

that he had been sexually assaulted. “Because medical and

psychology services weren’t responding to [his] requests for

assistance,” 19 Mr. Thomas requested Counselor Joslyn’s assis-

tance in obtaining medical care and access to psychological

services. The record reflects that the only responsive action

Counselor Joslyn took was to provide him with a grievance

form the following week. A jury could find that, given her re-

sponsibilities for Mr. Thomas’s well-being and given that she

was aware that medical staff were ignoring Mr. Thomas’s re-

quests for care, Counselor Joslyn’s own inaction in response

to his requests constitutes deliberate indifference. However, I

must conclude that there was an absence of case law at a suf-

ficient level of specificity to place Counselor Joslyn on notice

that her failure to notify cognizant medical personnel consti-

tuted deliberate indifference. See Campbell, 936 F.3d at 546.

In sum, I would reach the merits of the defendants’ asser-

tion of qualified immunity. I would further hold that Nurses

Worthington and Pointer are not entitled to qualified immun-

ity for their alleged deliberate indifference to Mr. Thomas’s

serious medical needs. However, because clearly established

law would not have notified Dr. Carmichael, Dr. Conner, or

18 Cf. Greeno, 414 F.3d at 656 (determining that a non-medical official who

“investigated” an inmate’s complaints and “referred them to the medical

providers who could be expected to address Greeno’s concerns” was not

deliberately indifferent but positing that “[p]erhaps it would be a different

matter if Miller had ignored Greeno’s complaints entirely”); Board v. Farn-

ham, 394 F.3d 469, 485 (7th Cir. 2005) (affirming that two guards who re-

fused a detainee his inhaler when he was having difficulty breathing were

not entitled to qualified immunity).

19 R.274-1 at 77.

No. 23-2552 31

Counselor Joslyn that their inaction constituted deliberate in-

difference, they are entitled to qualified immunity. Lieutenant

Baker, who relied on and deferred to medical providers who

he knew evaluated Mr. Thomas, is also protected by qualified

immunity. Therefore, I would affirm in part the judgment of

the district court and reverse and remand in part.