Derek Thomas v. Jacqueline Carmichael, et al.

Summary

The Seventh Circuit affirmed summary judgment for federal prison officials in Derek Thomas’s Eighth Amendment action arising from alleged failure to protect him from a cellmate and deliberate indifference to his medical needs. The court held that the failure-to-protect claim was not cognizable under Bivens under binding circuit precedent. It further held that Thomas forfeited his opposition to qualified immunity by failing to raise it in the district court and that the circumstances did not warrant plain-error review.

Holdings

1. Thomas's failure-to-protect claim cannot proceed under Bivens because it presents a new Bivens context and separation-of-powers concerns and special factors, including the Prison Litigation Reform Act and the prison grievance system, counsel against creating a new damages remedy.
2. Thomas forfeited his opposition to defendants' qualified-immunity defense by failing to address it in response to the motion for summary judgment, and the court would not consider the forfeited argument for the first time on appeal.

Questions Presented

1. Whether Thomas's Eighth Amendment failure-to-protect claim presents a new Bivens context for which the federal courts may not imply a damages remedy.
2. Whether Thomas could oppose defendants' qualified-immunity defense for the first time on appeal after failing to address qualified immunity in the district court.
3. Whether plain-error review was warranted based on the breakdown of Thomas's relationship with recruited counsel and the magistrate judge's comments concerning counsel's summary-judgment response.

Disposition

affirmed