Derek Thomas v. Jacqueline Carmichael

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2552
D EREK T HOMAS ,
Plaintiff-Appellant,
v.
J ACQUELINE C ARMICHAEL , 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.
____________________
A RGUED MAY 28, 2025 — D ECIDED J ANUARY 23, 2026
____________________
Before R IPPLE , 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

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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

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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,

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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

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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

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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 Norris1 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.

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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.

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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.

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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.

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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

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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).

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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.

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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

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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.”

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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).

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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

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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.

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18 No. 23-2552
III. Conclusion
For the foregoing reasons, we AFFIRM.

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No. 23-2552 19
R IPPLE , 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).

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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.

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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

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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.”).

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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).

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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.

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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).

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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”).

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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”).

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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

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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.”).

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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.

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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.

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