Laquan Johnson v. Elaine Terry
Citation119 F.4th 840
Date Filed2024-10-03
Docket23-11394
Cited23 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11394
____________________
LAQUAN JOHNSON,
Plaintiff-Appellant,
versus
ELAINE TERRY,
OFFICER BURGESS,
DR. MARTIN,
DR. WINSTON,
MS. GARCIA, et al.,
Defendants-Appellees,
DARLENE DREW, et al.,
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2 Opinion of the Court 23-11394
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cv-01899-AT
____________________
Before BRANCH, GRANT, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
LaQuan Johnson has filed a petition for rehearing en banc,
which under our rules also functions as a petition for rehearing be-
fore the panel. See 11th Cir. R. 35, I.O.P. 2 (“A petition for rehear-
ing en banc will also be treated as a petition for rehearing before
the original panel.”). At this stage, we as a panel are free to modify
our earlier opinion. See Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216,
1218 (11th Cir. 2017) (“At least until an order granting or denying
the petition for rehearing en banc is issued, a panel retains author-
ity to modify its decision and opinion.”). And that is what we now
do, vacating our earlier opinion, Johnson v. Terry, 112 F.4th 995
(11th Cir. 2024), and issuing this one in its place. The analysis and
result remain the same.
Johnson’s petition for rehearing en banc remains pending.
In light of this revised panel opinion, he is granted 21 days to file a
supplement to that petition, if he chooses to do so. See Fed. R. App.
P. 40(a)(4)(C); see also Meders v. Warden, Ga. Diagnostic Prison, 911
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23-11394 Opinion of the Court 3
F.3d 1335, 1337 (11th Cir. 2019). If he does file a supplemental pe-
tition, the government may not file a response unless the court re-
quests one. See 11th Cir. R. 35-6 (“A response to a petition for en
banc consideration may not be filed unless requested by the
court.”). This is our revised opinion.
Johnson is a federal prisoner who filed a complaint asserting
claims under Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971). He sought money damages from
federal prison officials, doctors, a nurse, and a kitchen supervisor
alleging that they violated his constitutional rights by using exces-
sive force, by failing to protect him from other inmates, and by be-
ing deliberately indifferent to his serious medical needs.
The Supreme Court has decided that “in all but the most
unusual circumstances,” we should not use Bivens to recognize new
constitutional-claim causes of action for damages against federal of-
ficials. See Egbert v. Boule, 596 U.S. 482, 486, 491 (2022). The Court
has instructed us that the reason we aren’t free to use Bivens to
“fashion[] new causes of action,” id. at 490, is that “prescribing a
cause of action is a job for Congress, not the courts,” id. at 486. The
claims Johnson has asserted would require new Bivens causes of ac-
tion, which we are forbidden to create except in the “most unusual
circumstances,” if then. Id. at 486.
I. Facts and Procedural History
LaQuan Johnson is a federal prisoner who was housed at the
United States Penitentiary in Atlanta, Georgia, which we’ll call
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4 Opinion of the Court 23-11394
USP-Atlanta, from September 2015 to April 2019. He was a pretrial
detainee until he was tried and convicted on April 14, 2017. 1
According to USP-Atlanta’s policy while Johnson was
housed there, pretrial detainees and convicted inmates were usu-
ally housed in separate units. In mid-June 2016, while Johnson was
still a pretrial detainee, an inmate he knew as “Phillip” moved into
his cell in the pretrial unit. Phillip was not a pretrial detainee; in-
stead, he was being confined because he had been convicted. John-
son told an officer that as a pretrial detainee, he should not be
housed in the same unit as Phillip, let alone in the same cell. Phillip
was moved out of Johnson’s cell, but soon after, Elaine Terry, a
correctional counselor at USP-Atlanta and one of the defendants,
moved Phillip back into Johnson’s cell in the pretrial unit and
moved Johnson to a different cell in the same unit. Johnson com-
plained to Terry that Phillip was not supposed to be housed in a
pretrial unit, but she ignored his complaint.
A week later, Phillip got into an argument with Lewis
Mobley, a different pretrial detainee housed in the pretrial unit.
1 Johnson appeals the district court’s grant of the defendants’ motion
for summary judgment. Given that, we are required to view the facts as drawn
from the pleadings, affidavits, and depositions, in the light most favorable to
him. E.g., Hardin v. Hayes, 957 F.2d 845, 848 (11th Cir.1992); Stewart v. Baldwin
County Bd. of Educ., 908 F.2d 1499, 1503 (11th Cir.1990). What we state as
“facts” in this opinion may not be the actual facts. They are, however, the
facts for summary judgment purposes. Swint v. City of Wadley, Ala., 51 F.3d
988, 992 (11th Cir. 1995).
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Johnson intervened to try and keep the two from fighting. That
resulted in Phillip hitting Johnson and pushing him into a toilet,
which fractured bones in Johnson’s right hand (the first attack).
Later that day Johnson went to “health services,” which is
the prison’s medical clinic, to get his hand evaluated. He was
treated by a nurse who x-rayed, splinted, and wrapped his hand.
The x-rays indicated that Johnson had fractured a bone in his hand.
Johnson claims that Dr. Darren Martin, who viewed the x-rays, in-
structed someone named Ms. Robinson to tell Johnson his hand
wasn’t broken, and then the medical providers gave him ibuprofen.
All of that happened in mid-to-late June 2016.
Johnson again complained about his hand injury in July 2016
and in October 2017. In July of 2016 he was seen by a nurse practi-
tioner, who offered to x-ray and bandage Johnson’s hand, but he
refused. He was also seen by a nurse practitioner in October 2017
who x-rayed his hand and found that the fracture had healed. Dr.
James Winston reviewed and cosigned both nurse practitioners’
notes from their interaction with Johnson.
In or around October 2016, Johnson informed Warden Dar-
lene Drew that he was being housed with convicted prisoners
when he was a pretrial detainee. Drew did nothing to correct the
problem.
In March 2018 a convicted inmate named Walter Bush at-
tacked Johnson (the second attack). (At this point, Johnson had
been convicted and was no longer a pretrial detainee.) Bush in-
jured Johnson’s right hand during the attack. Johnson went to
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6 Opinion of the Court 23-11394
health services a couple of days later and was seen by a nurse prac-
titioner. The nurse practitioner ordered an x-ray of Johnson’s
hand, found that there were no new fractures, and offered Johnson
pain medication. He declined it, stating that he already had some.
The nurse practitioner told Johnson that a doctor would be con-
tacted to come check on him, but none of the doctors on staff ever
spoke to Johnson about his injury. Dr. Winston reviewed the nurse
practitioner’s notes from the encounter and signed off on the as-
sessment.
In April 2018 Johnson was once again attacked by another
inmate (the third attack). He says that he was watching TV when
a convicted inmate named Cedric Brown punched him in the face
and fractured his jaw. Johnson was seen by a dentist, who then
referred him to an oral surgeon. The oral surgeon operated on
Johnson’s jaw, then wired his mouth closed to help with the heal-
ing process. The surgeon directed that Johnson consume a liquid
diet for six weeks while his mouth was wired shut.
Johnson contends that Carolina Garcia, a kitchen supervisor,
was in charge of giving him his liquid diet, and she provided it as
directed for two weeks; but then she stopped. After not receiving
his liquid diet for two days, Johnson cut the wires out of his mouth
with fingernail clippers so that he could eat. He then began chew-
ing regular food with his fractured jaw. The food got stuck in the
wound in his mouth and began to rot. Once the food rotted, one
of Johnson’s teeth also rotted and needed to be removed.
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A few months later, in August 2018, a group of prisoners
were playing basketball in an outdoor recreation area when the ball
got stuck in the rim. Because Johnson is tall, they asked him if he
could get the ball down. He jumped up and landed on a screw
when he came down; the screw punctured his foot and caused se-
vere bleeding. Johnson went inside to find help and saw Nurse
Terrisha Harris passing out medicine. He asked her for help, but
she refused to treat his foot. He then explained his predicament to
an unidentified officer, who brought him two pairs of socks to help
stop the bleeding.
Two days later, Johnson reported to health services and was
seen by Dr. Winston, the same doctor who had reviewed Johnson’s
medical records after Bush had injured Johnson’s hand. Dr. Win-
ston gave Johnson a tetanus shot and took some x-rays. The radi-
ologist’s report determined that the x-ray showed no acute fracture
or “joint space malalignment,” and that no “foreign body” re-
mained in Johnson’s foot. Dr. Winston told Johnson that he would
follow up with him to see how his foot was healing, but Johnson
never saw him again. Johnson tried reaching out to Dr. Winston
about a follow-up, but he was not able to get in touch with him.
When he was unable to get in touch with Dr. Winston,
Johnson mentioned his injury to Dr. Michael Nwude while the doc-
tor was walking through Johnson’s unit. Dr. Nwude told Johnson
that he would “call [him] up to the health service” so that he could
be provided with arch support for his shoes to help with his foot
injury. But Dr. Nwude did not do that, and the next time Johnson
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8 Opinion of the Court 23-11394
saw Dr. Nwude walking through the unit, the doctor refused to
talk to him. At the time he filed this lawsuit, Johnson still walked
with a limp because of his foot injury.
Johnson attempted to file complaints with the Bureau of
Prisons (BOP) about the attacks he had experienced and the lack of
adequate medical care he had received while at USP-Atlanta. To
resolve inmate complaints that arise at USP-Atlanta and other fed-
eral prisons, the BOP uses a four-level administrative remedy pro-
gram. The purpose of the program “is to allow an inmate to seek
formal review of an issue relating to any aspect of his/her own con-
finement.” 28 C.F.R. § 542.10(a); see also Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 74 (2001) (“[The administrative remedy pro-
gram] provides [a] means through which allegedly unconstitu-
tional actions and policies can be brought to the attention of the
BOP and prevented from recurring.”).
The first step is an “informal resolution” process within in-
dividual institutions. See 28 C.F.R. § 542.13(a). To begin this pro-
cess, a prisoner may present his complaint to prison staff on a griev-
ance form known as a BP-8 form. See id. In addition to (or instead
of) informal resolution, the inmate can submit a formal grievance
on a BP-9 form to staff at the institution where he is located. See id.
§ 542.14(a), (c)(4); see also id. § 542.13(b) (providing that the inmate
is “not required to attempt informal resolution”). If the inmate
feels that submission of a formal grievance at his institution will
compromise his “safety or well-being,” he may bypass that process
and submit his formal request to the regional director. See id. §
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542.14(d)(1). If he is unsatisfied with the warden’s response to his
complaint, he may appeal to the regional director (on a BP-10
form), and then to the office of general counsel (on a BP-11
form). See id. § 542.15(a). Johnson testified in his deposition that
Terry (the correctional counselor) either would refuse to give him
any of the various informal or formal grievance forms when he
asked, or would give Johnson a form but refuse to file it after John-
son had filled it out. He swore in an affidavit that when he was
eventually able to obtain and file grievance forms, he did not re-
ceive any response. Johnson also testified that “if you get no re-
sponse it[’]s like a denial,” so he then appealed those “denials.” But
he says that when he filed an appeal, he would be notified that he
had failed to comply with an earlier step in the four-level program.
Johnson claims that the officers at USP-Atlanta purposefully
sabotaged his grievances, by either: (1) failing to file his initial griev-
ances; (2) failing to return the responses to his grievances so that if
Johnson appealed, he would not know why the grievance was ini-
tially denied; or (3) waiting until his appeal deadline had passed be-
fore sending him rejection notices, which would result in his ap-
peals being untimely.
Johnson filed suit in federal district court, bringing failure to
protect, deliberate indifference, and excessive force claims against
a number of officers, medical staff, and an employee at USP-
Atlanta. The defendants filed a motion to dismiss his complaint for
failure to exhaust his administrative remedies because he did not
comply with the BOP’s administrative remedy program before
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10 Opinion of the Court 23-11394
filing his complaint. The district court denied the motion without
prejudice and provided the parties with a limited discovery period
to determine whether Johnson had exhausted his administrative
remedies. After discovery closed, the defendants renewed their
motion to dismiss. The magistrate judge assigned to the case found
that Johnson was denied access to the administrative remedy pro-
gram at USP-Atlanta and recommended that the court deny the
motion to dismiss. Over the defendants’ objections, the court
adopted that report and recommendation and denied the motion.
After additional discovery the defendants moved for sum-
mary judgment, arguing in part that Johnson’s Bivens claims are not
cognizable. The magistrate judge recommended that the court
grant the defendants’ motions for summary judgment because his
Bivens claims presented a new context and special factors counseled
against extending Bivens to that new context. The district court
agreed and granted the defendants’ motions for summary judg-
ment, concluding that Johnson’s claims did not entitle him to a
Bivens remedy. Johnson appeals that judgment.
II. Bivens Law Through the Years and Today
Claims for money damages against federal officials and em-
ployees who have committed constitutional violations are known
as Bivens claims, after the Supreme Court’s decision in Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
When it enacted 42 U.S.C. § 1983, Congress allowed an in-
jured person to sue for money damages claiming that a state official
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had violated his constitutional rights. Congress has never enacted
a corresponding statute providing a damages remedy to plaintiffs
whose constitutional rights have been violated by a federal official.
See Ziglar v. Abbasi, 582 U.S. 120, 130 (2017). Nevertheless, in Bivens,
the Supreme Court created for the first time an implied private
right of action for damages against federal agents, at least for a vi-
olation of the Fourth Amendment. See 403 U.S. at 397. The Court
concluded that it had the authority to do so because “where feder-
ally protected rights have been invaded, it has been the rule from
the beginning that courts will be alert to adjust their remedies so
as to grant the necessary relief.” Id. at 392 (quotation marks omit-
ted).
In the decade after Bivens, the Court created two more
causes of action for violations of constitutional rights by federal
officials. One was against a Congressman under the Fifth Amend-
ment for sex discrimination after he fired his secretary because she
was a woman; another was against federal prison officials under the
Eighth Amendment for failing to treat an inmate’s asthma, result-
ing in his death. See Davis v. Passman, 442 U.S. 228, 230–31 (1979);
Carlson v. Green, 446 U.S. 14, 16 & n.1, 18 (1980). As in Bivens, the
Supreme Court stated that the purpose behind those decisions was
“to deter individual federal officers from committing constitu-
tional violations.” Malesko, 534 U.S. at 70. But there the Supreme
Court’s creative decision-making that had birthed the Bivens doc-
trine stopped.
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In the 44 years since Carlson, the Supreme Court has over
and over again “refused to extend Bivens to any new context or new
category of defendants.” Ziglar, 582 U.S. at 135 (quotation marks
omitted); see Bush v. Lucas, 462 U.S. 367, 368 (1983) (holding there is
no Bivens action for “federal employees whose First Amendment
rights are violated by their superiors”); Chappell v. Wallace, 462 U.S.
296, 305 (1983) (declining to create Bivens action for enlisted mili-
tary personnel against their superior officers); United States v. Stan-
ley, 483 U.S. 669, 684 (1987) (“We hold that no Bivens remedy is avail-
able for injuries that arise out of or are in the course of activity
incident to [military] service.”) (quotation marks omitted);
Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) (declining to recognize
Bivens action for due process violations resulting from denial of So-
cial Security disability benefits); FDIC v. Meyer, 510 U.S. 471, 473
(1994) (holding there can be no Bivens action against a federal
agency); Malesko, 534 U.S. at 63 (declining to create a Bivens remedy
against “a private corporation operating a halfway house under
contract with the Bureau of Prisons”); Wilkie v. Robbins, 551 U.S.
537, 541 (2007) (declining to recognize Bivens action against “[o]ffi-
cials of the Bureau of Land Management . . . accused of harass-
ment and intimidation aimed at extracting an easement across pri-
vate property”); Hui v. Castaneda, 559 U.S. 799, 801–02 (2010) (disal-
lowing Bivens remedy against U.S. Public Health Service employees
for “constitutional violations arising out of their official duties”);
Minneci v. Pollard, 565 U.S. 118, 131 (2012) (finding no Bivens remedy
when prisoner sued “privately employed personnel working at a
privately operated federal prison” under the Eighth Amendment);
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Ziglar, 582 U.S. at 125, 146 (declining to extend Bivens to conditions-
of-confinement claim against group of executive officials); Hernan-
dez v. Mesa, 589 U.S. 93, 96–97 (2020) (declining to recognize Bivens
remedy for cross-border shooting by border patrol agent); Egbert,
596 U.S. at 486 (declining to allow excessive force and First Amend-
ment retaliation Bivens claims against a U.S. Border Patrol agent to
proceed).
The Supreme Court has explained that its nearly complete
about-face in the Bivens area after Davis and Carlson results from its
having “come to appreciate more fully the tension between judi-
cially created causes of action and the Constitution’s separation of
legislative and judicial power.” Egbert, 596 U.S. at 491 (quotation
marks omitted). The Court understands that “it is a significant step
under separation-of-powers principles for a court to determine that
it has the authority, under the judicial power, to create and enforce
a cause of action for damages against federal officials in order to
remedy a constitutional violation.” Ziglar, 582 U.S. at 133. And
because the power to create causes of action is legislative, “[i]n
most instances . . . the Legislature is in the better position to con-
sider if the public interest would be served by imposing a new sub-
stantive legal liability.” Id. at 135–36 (quotation marks omitted); see
also Egbert, 596 U.S. at 492 (explaining that unless a court exhibits
the “utmost deference to Congress’ preeminent authority in” cre-
ating a cause of action, it “arrogate[s] legislative power”) (alteration
accepted) (quotation marks omitted).
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14 Opinion of the Court 23-11394
Creating causes of action involves complex policy consider-
ations, including “economic and governmental concerns, adminis-
trative costs, and the impact on governmental operations sys-
temwide.” Egbert, 596 U.S at 491 (quotation marks omitted). The
ability of courts to weigh those considerations is “at best, uncer-
tain.” Id. Thus “recognizing a cause of action under Bivens” out-
side of the three contexts already allowed by the Supreme Court
“is a disfavored judicial activity” and should be avoided “in all but
the most unusual circumstances.” Id. at 486, 491 (quotation marks
omitted). Judging from the Court’s decisions in the last four-and-
a-half decades, those “most unusual circumstances” are as rare as
the ivory-billed woodpecker.2
2 So rare is the ivory-billed woodpecker that many experts have come
to believe it is extinct. As one expert wrote in 2017: “The last bird, a female,
was seen in 1944 . . . . Sadly, most ornithologists now think the bird is gone
forever.” Andy Kratter, Ivory-billed Woodpecker, Florida Museum (2017),
https://www.floridamuseum.ufl.edu/100-years/object/ivory-billed-wood-
pecker. In 2021 the Fish and Wildlife Service, which is in charge of such de-
terminations, proposed declaring that the big woodpecker is extinct. See En-
dangered and Threatened Wildlife and Plants; Removal of 23 Extinct Species
from the Lists of Endangered and Threatened Wildlife and Plants, 86 Fed. Reg.
54298-01 (Sept. 30, 2021) (to be codified at 50 C.F.R. 17). But in 2022 the Ser-
vice pulled back from that proposal and extended the period for public com-
ment, recognizing “substantial disagreement among experts regarding the sta-
tus of the species.” Ian Fischer, Service Announces 6-Month Extension on Final
Decision for the Ivory-billed Woodpecker, U.S. Fish & Wildlife Service (July 6,
2022), https://www.fws.gov/press-release/2022-07/service-announces-6-
month-extension-final-decision-ivory-billed-woodpecker. More recently, a re-
search team, after searching over a period of several years in the dense bot-
tomland forests of Louisiana, reported evidence that three of the ivory-bills (as
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23-11394 Opinion of the Court 15
Remarkably, the Supreme Court has even “gone so far as to
observe that if ‘the Court’s three Bivens cases had been decided to-
day,’ it is doubtful that we would have reached the same result.”
Hernandez, 589 U.S. at 101 (cleaned up) (quoting Ziglar, 582 U.S. at
134). And even more pointedly, just two years ago the Court told
us that “we have indicated that if we were called to decide Bivens
today, we would decline to discover any implied causes of action in
the Constitution.” Egbert, 596 U.S. at 502. In other words, today
the Court would decide the Bivens case, as well as its two progeny,
Davis and Carlson, differently. See also Malesko, 534 U.S. at 75 (con-
curring opinion of Scalia, J., joined by Thomas, J.) (“Bivens is a relic
of the heady days in which this Court assumed common-law pow-
ers to create causes of action — decreeing them to be ‘implied’ by
the mere existence of a statutory or constitutional prohibition.”).
The Supreme Court has been clear, however, that it has not
yet overruled the Bivens decision insofar as the decision itself goes.
See Ziglar, 582 U.S. at 134 (“[T]his opinion is not intended to cast
doubt on the continued force, or even the necessity, of Bivens in the
search-and-seizure context . . . .”); see also Egbert, 596 U.S. at 502
ornithologists call them) still exist. Steven C. Latta et al., Multiple lines of evi-
dence suggest the persistence of the Ivory-billed Woodpecker (Campephilus principalis)
in Louisiana, ECOLOGY AND EVOLUTION (May 18, 2023),
https://doi.org/10.1002/ece3.10017. If that’s true, the number of the birds
that exist will exactly match the number of Supreme Court decisions that have
confirmed and applied Bivens in the last forty-three years: three live ivory-
billed woodpeckers and three live Bivens decisions. A coincidence of rarity.
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(“[T]o decide the case before us, we need not reconsider Bivens it-
self.”). But it has also been clear that when courts are thinking
about recognizing a new Bivens claim, the “watchword” is “cau-
tion” –– so much caution that it has not found a new Bivens claim
worth recognizing in 44 years. Egbert, 596 U.S. at 491 (quotation
marks omitted); Malesko, 534 U.S. at 68 (“Since Carlson we have con-
sistently refused to extend Bivens liability to any new context or
new category of defendants.”); see also id. at 74 (“The caution to-
ward extending Bivens remedies into any new context, a caution
consistently and repeatedly recognized for three decades [now
more than four decades], forecloses such an extension here.”)
(bracketed words added).
As Justice Gorsuch aptly put it when calling on the Court to
forthrightly overrule Bivens, what the Court has done is “leave[] a
door ajar and hold[] out the possibility that someone, someday,
might walk through it even as it [has] devise[d] a rule that ensures
no one ever will.” Egbert, 596 U.S. at 504 (Gorsuch, J., concurring)
(quotation marks and ellipsis omitted); see also Hernandez, 589 U.S.
at 118 (Thomas, J., concurring) (“The analysis underlying Bivens
cannot be defended. We have cabined the doctrine’s scope, under-
mined its foundation, and limited its precedential value. It is time
to correct this Court’s error and abandon the doctrine alto-
gether.”).
Taking to heart what the Supreme Court has done to limit
Bivens’ precedential value and drastically restrict its reach, we re-
cently refused to extend Bivens to a Fourth Amendment excessive
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23-11394 Opinion of the Court 17
force claim against United States Marshals and county police offic-
ers conducting a joint state and federal task force to apprehend fu-
gitives. See Robinson v. Sauls, 102 F.4th 1337, 1339, 1347 (11th Cir.
2024).
We are not the only court to have taken to heart what the
Supreme Court has said on this subject. All of our sister circuits
have also stressed the need for caution, hesitancy, and reluctance
when it comes to extending the Bivens decision. See Gonzalez v. Ve-
lez, 864 F.3d 45, 52 (1st Cir. 2017) (“While the boundaries of Bivens-
type liability are hazy, the Supreme Court . . . [has] made plain its
reluctance to extend the Bivens doctrine to new settings.”); Doe v.
Hagenbeck, 870 F.3d 36, 43 (2d Cir. 2017) (acknowledging that “[t]he
Court has . . . made clear that it is reluctant to extend Bivens liability
to any new context or new category of defendants” and that “ex-
panding the Bivens remedy is now a disfavored judicial activity”)
(quotation marks omitted); Xi v. Haugen, 68 F.4th 824, 833 (3d Cir.
2023) (“Most recently, in Egbert . . . , the Court went so far as to
suggest that any extension to a new context may be ultra vires.”);
Dyer v. Smith, 56 F.4th 271, 277 (4th Cir. 2022) (“And this year [in
Egbert], the Supreme Court all but closed the door on Bivens reme-
dies.”); Cantú v. Moody, 933 F.3d 414, 421–22 (5th Cir. 2019) (explain-
ing that the Court has “admonished [courts] to exercise caution in
the disfavored judiciary activity of extending Bivens to any new set
of facts”) (quotation marks omitted); Callahan v. Fed. Bureau of Pris-
ons, 965 F.3d 520, 523 (6th Cir. 2020) (“[The Court] has renounced
the method of Bivens, Davis, and Carlson. When asked ‘who should
decide’ whether a cause of action exists for violations of the
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18 Opinion of the Court 23-11394
Constitution, ‘the answer most often will be Congress.’”) (altera-
tion accepted) (quoting Ziglar, 582 U.S. at 135); Effex Cap., LLC v.
Nat’l Futures Ass’n, 933 F.3d 882, 891 (7th Cir. 2019) (stating that the
Supreme Court has “limited the application” of Bivens and “made
very clear that the expansion of the Bivens remedy to other consti-
tutional provisions is a disfavored judicial activity”) (quotation
marks omitted); Ahmed v. Weyker, 984 F.3d 564, 571 (8th Cir. 2020)
(explaining that its conclusion not to extend Bivens “should [not] be
surprising” because “the Supreme Court has not recognized a new
Bivens action for almost 40 years”) (quotation marks omitted);
Chambers v. Herrera, 78 F.4th 1100, 1105 (9th Cir. 2023) (“Essen-
tially . . . future extensions of Bivens are dead on arrival.”) (quota-
tion marks omitted); Silva v. United States, 45 F.4th 1134, 1136 (10th
Cir. 2022) (“The Supreme Court’s message [in Egbert] could not be
clearer — lower courts expand Bivens claims at their own peril. We
heed the Supreme Court’s warning and decline Plaintiff’s invitation
to curry the Supreme Court’s disfavor by expanding Bivens to cover
[this] claim.”); Loumiet v. United States, 948 F.3d 376, 381 (D.C. Cir.
2020) (recognizing that “expanding the Bivens remedy is now a dis-
favored judicial activity” that requires “caution before extending
Bivens remedies into any new context”) (quotation marks omitted).
Theoretically, we may someday see more Supreme Court
decisions confirming and extending Bivens. Barring that unlikely
event, for the time being the decision will remain on the judiciary’s
equivalent of an endangered species list, just like its natural history
analogue, the ivory-billed woodpecker. Both the decision and the
bird are staring extinction in the face.
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Meanwhile, rarity doesn’t foreclose false sightings. See Fields
v. Fed. Bureau of Prisons, 109 F.4th 264 (4th Cir. 2024). In the recent
Fields case, a divided Fourth Circuit panel extended Bivens to a new
context, allowing a federal prisoner’s claims of excessive force in
violation of the Eighth Amendment to proceed against individual
prison officers. See id. at 267. A vigorous and cogent dissent re-
jected the “wiggle room” the Fields majority “purport[ed] to de-
tect” in the Supreme Court’s repeated warnings that courts should
not extend Bivens. Id. at 276 (Richardson, J., dissenting).
The decision in Fields, a far-afield outlier, may lead to en banc
reconsideration or to the Supreme Court finally rendering Bivens
cases extinct. See id. at 283 (Richardson, J., dissenting) (predicting
it may encourage the Court to finally “shut the Bivens door com-
pletely”). After all, the Supreme Court has stated as clearly as the
English language permits: “[I]f we were called on to decide Bivens
today, we would decline to discover any implied causes of action in
the Constitution.” Egbert, 596 U.S. at 502; see also id.at 502–04 (Gor-
such, J., concurring in the judgment) (urging the Court to overrule
Bivens and “forthrightly return the power to create new causes of
action to the people’s representatives in Congress”). That “called
on to decide Bivens” call may be coming if the panel decision in
Fields manages to duck en banc correction. Id. at 502.
Until then, determining whether a new Bivens claim can be
recognized involves a two-step analysis. Egbert, 596 U.S. at 492. To
begin the analysis, courts first “ask ‘whether the case presents a
new Bivens context — i.e., is it meaningfully different from the
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20 Opinion of the Court 23-11394
three cases in which the Court has implied a damages action.’” Rob-
inson, 102 F.4th at 1342 (quoting Egbert, 592 U.S. at 492). The ques-
tion is not a superficial one; for a case to arise in a previously rec-
ognized Bivens context, it is not enough that the case involves the
same constitutional right and “mechanism of injury.” Ziglar, 582
U.S. at 138–39. “If the case is different in a meaningful way from
previous Bivens cases decided by this Court, then the context is
new.” Id. at 139. And there are a lot of meaningful ways for cases
to differ, as the examples the Court has supplied show:
A case might differ in . . . meaningful way[s] because
of the rank of the officers involved; the constitutional
right at issue; the generality or specificity of the offi-
cial action; the extent of judicial guidance as to how
an officer should respond to the problem or emer-
gency to be confronted; the statutory or other legal
mandate under which the officer was operating; the
risk of disruptive intrusion by the Judiciary into the
functioning of other branches; or the presence of po-
tential special factors that previous Bivens cases did
not consider.
Id. at 139–40.
“[I]f a claim arises in a new context,” the second step in the
analysis will make “a Bivens remedy . . . unavailable if there are spe-
cial factors indicating that 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 (quotation
marks omitted). Central to this special-factors analysis “are sepa-
ration-of-powers principles.” Hernandez, 589 U.S. at 102 (quotation
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23-11394 Opinion of the Court 21
marks omitted). The inquiry focuses on “the risk of interfering
with the authority of the other branches, and . . . ask[s] whether
there are sound reasons to think Congress might doubt the efficacy
or necessity of a damages remedy.” Id. (quotation marks omitted).
That analysis should not be applied at “a narrow level of gen-
erality,” and it “does not invite federal courts to independently as-
sess the costs and benefits of implying a cause of action.” Egbert,
596 U.S. at 496 (cleaned up). Instead, while conducting the special
factors analysis, “a court must ask more broadly if there is any rea-
son to think that judicial intrusion into a given field might be harm-
ful or inappropriate.” Id. (cleaned up). “If there are [any special
factors] — that is, if we have reason to pause before applying Bivens
in a new context or to a new class of defendants — we reject the
request.” Hernandez, 589 U.S. at 102; see also Egbert, 596 U.S. at 496
(explaining that even a “potential” for improper “judicial intrusion”
into the legislative realm is enough to refuse a plaintiff a Bivens rem-
edy) (cleaned up); Robinson, 102 F.4th at 1342–43 (“If there is even
a single reason to pause before applying Bivens to a new context, a
court may not recognize a Bivens remedy.”) (quotation marks omit-
ted).
III. Bivens Should Not Be Extended Here
Johnson asks us to extend Bivens to allow him to bring three
types of Bivens claims: his excessive force claim, his failure to pro-
tect claim, and his deliberate indifference to serious medical needs
claims.
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22 Opinion of the Court 23-11394
But the first of those claims is not properly before us. John-
son did not mention his excessive force claim in any of his briefing
or otherwise make any arguments about it on appeal. So that claim
is abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,
681 (11th Cir. 2014) (concluding that a claim not adequately briefed
was abandoned, explaining: “A party fails to adequately brief a
claim when he does not plainly and prominently raise it, for in-
stance by devoting a discrete section of his argument to those
claims”) (quotation marks omitted). 3 That leaves his failure to pro-
tect claim and his deliberate indifference to serious medical needs
claims.4
3 At oral argument, Johnson contended that he had raised his excessive
force claim in his briefs to this Court by arguing that special factors did not
preclude extending Bivens to all of his claims, including his excessive force one.
But in his briefs Johnson never discussed the excessive force claim specifically
and only referred to his “claims.” Other than that general reference, the ex-
cessive force claim is mentioned just once in his brief, and that was only to
note that Johnson had included the claim in his complaint. Even after the de-
fendants asserted in their response brief that Johnson had abandoned the ex-
cessive force claim by not raising it, he did not address that claim or the aban-
donment issue involving it in his reply brief. So his attempt to revive the claim
at oral argument is unsuccessful. See Sapuppo, 739 F.3d at 681; Holland v. Gee,
677 F.3d 1047, 1066 (11th Cir. 2012) (“[W]e do not consider arguments not
raised in a party’s initial brief and made for the first time at oral argument.”)
(quotation marks omitted); McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1263
(11th Cir. 2004) (“A party is not allowed to raise at oral argument a new issue
for review.”).
4 The defendants argue that Johnson forfeited any challenge to the dis-
trict court’s dismissal of his deliberate indifference claims because his objec-
tions to the magistrate judge’s findings and his briefing of the issue to us are
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23-11394 Opinion of the Court 23
In his complaint, Johnson asserted that those two sets of
claims were being brought under the “Fifth and/or Eighth Amend-
ments.” When Johnson was attacked by Phillip in June 2016, he
was a pretrial detainee. As a result, his failure to protect and delib-
erate indifference claims stemming from that incident arise under
the Due Process Clause of the Fifth Amendment. See Bell v. Wolfish,
441 U.S. 520, 535 (1979). The factual predicates for the remainder
of his failure to protect and deliberate indifference claims occurred
after Johnson was convicted, so those claims arise under the Eighth
Amendment. See Cox v. Nobles, 15 F.4th 1350, 1357 (11th Cir. 2021)
(failure to protect); Farrow v. West, 320 F.3d 1235, 1243 (11th Cir.
2003) (deliberate indifference).
Johnson’s failure to protect claim is against Terry, a correc-
tions counselor, and Warden Drew. He alleges that he informed
the two of them that he was being housed with convicted inmates
in violation of BOP policy, but they did nothing to correct the situ-
ation, which led to Johnson being attacked by convicted inmates
three times: in June 2016, March 2018, and April 2018. 5 Johnson’s
deliberate indifference claims are based on four different incidents,
and they involve five defendants and the treatment they gave or
insufficient. See, e.g., Roy v. Ivy, 53 F.4th 1338, 1351 (11th Cir. 2022); Singh v.
U.S. Att’y Gen., 61 F.3d 1275, 1278 (11th Cir. 2009). We disagree. Johnson’s
objections to the report and recommendation and discussion in his appellate
briefs adequately challenge whether his deliberate indifference claims present
a new context for Bivens claims.
5 Johnson himself was a convicted inmate when the last two attacks
occurred.
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24 Opinion of the Court 23-11394
failed to give him: (1) Winston and Martin’s treatment of the first
injury to Johnson’s hand; (2) Winston’s treatment of the second in-
jury to his hand; (3) Winston and Martin’s treatment of his jaw in-
jury and Garcia’s failure to continue to provide his liquid diet; and
(4) Winston, Martin, Nwude, and Harris’ treatment of his left foot
injury.
We will begin by explaining why Johnson’s failure to protect
claim and his deliberate indifference claims both arise in new con-
texts. Then we will discuss why special factors counsel against rec-
ognizing either set of claims here.
A. Johnson’s failure to protect claim
“presents a new Bivens context”
Instead of arguing that his failure to protect claim does not
present a new Bivens context because it is not meaningfully differ-
ent from Bivens, Davis, or Carlson, Johnson contends that the failure
to protect claim is similar to the Bivens claim in Farmer v. Brennan,
511 U.S. 825 (1994), and for that reason does not present a new
Bivens context.
That argument fails because the Supreme Court has made
clear that Farmer is not one of its decisions creating a Bivens cause
of action. In 2017 the Court stated in Ziglar, that “[t]hese three
cases — Bivens, Davis, and Carlson — represent the only instances in
which the Court has approved of an implied damages remedy un-
der the Constitution itself.” 582 U.S. at 131 (emphasis added). That
those three cases are the only ones in which the Court had ap-
proved of a Bivens remedy as of 2017 means that it did not approve
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23-11394 Opinion of the Court 25
of one in Farmer, which was decided in 1994. If the Court had ac-
tually approved of a Bivens remedy in Farmer, it would have said in
Ziglar that it had approved of a Bivens remedy only four times and
would have included Farmer in its list with the other three deci-
sions. But it didn’t say or do that.
The same is true of what the Court stated and didn’t state
just four years ago in Hernandez, where it referred to Bivens, Davis,
and Carlson as “the Court’s three Bivens cases.” 589 U.S. at 101 (quo-
tation marks omitted). It made similar statements in Egbert in 2022,
Minneci in 2012, and Malesko in 2001. See Egbert, 596 U.S. at 490–91
(“Since [Bivens, Davis, and Carlson], the Court has not implied addi-
tional causes of action under the Constitution.”); Minneci, 565 U.S.
at 124 (“Since Carlson, the Court has had to decide in several differ-
ent instances whether to imply a Bivens action. And in each in-
stance it has decided against the existence of such an action.”);
Malesko, 534 U.S. at 68 (“Since Carlson we have consistently refused
to extend Bivens liability to any new context or new category of
defendants.”). The Court’s conspicuous omission of Farmer from
the list of Bivens decisions it recognized in its Ziglar, Hernandez, Eg-
bert, Minneci, and Malesko opinions rules out Farmer as a Bivens de-
cision. We agree with the Seventh Circuit’s reasoning in Sargeant
v. Barfield that “[n]ot once has the Supreme Court mentioned
Farmer alongside [its three listed Bivens] cases, and we think it
would have if Farmer created a new context or clarified the scope
of an existing one.” 87 F.4th 358, 365 (7th Cir. 2023).
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26 Opinion of the Court 23-11394
Johnson argues that the Supreme Court’s failure to include
Farmer in any of its listings of Bivens decisions is not determinative
because the Court has told us not to “conclude [its] more recent
cases have, by implication, overruled an earlier precedent.” Agos-
tini v. Felton, 521 U.S. 203, 237 (1997). The Court has declared gen-
erally that when a later case suggests that an earlier holding is no
longer applicable, we “should follow the case which directly con-
trols, leaving to this Court the prerogative of overruling its own
decisions.” Id. (quotation marks omitted). Johnson’s argument is
basically that even though the Court has never listed Farmer as one
of its Bivens remedy cases, it has never explicitly overruled Farmer
either, so Farmer established a new context of Bivens remedies to
which we can compare Johnson’s claim.
That argument might be successful but for the insurmount-
able fact that the Court did not hold in Farmer that the Bivens claim
was a cognizable cause of action. It never engaged with or decided
the Bivens issue. At most, it assumed that Bivens could apply but, as
we will explain below, assumptions are not holdings and do not
establish precedents. See infra at 27–29.
In Farmer, a transgender woman who “project[ed] feminine
characteristics” was placed in the general population of the federal
men’s prison where she was housed. 511 U.S. at 829–30. Within
two weeks she was beaten and raped by another inmate in her cell.
Id. at 830. She sued multiple federal prison officials under Bivens
alleging that by placing her in the general population where she
“would be particularly vulnerable to sexual attack” due to her
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23-11394 Opinion of the Court 27
appearance, they acted with deliberate indifference to her safety.
Id. at 829–31. The sole issue before the Supreme Court was how
to define what constitutes deliberate indifference in the Eighth
Amendment context. Id. at 829, 832. The Court’s entire discussion
in Farmer revolved around resolving that one issue. See id. at 835–
47. The Court did not address whether a Bivens cause of action
existed for the prisoner’s claim. See id. at 832–51. It was not an
issue before the Court. See id.
It is no wonder that the Court did not decide the Bivens issue
in Farmer. It was not mentioned by either party at oral argument.
See Transcript of Oral Argument, Farmer, 511 U.S. 825 (No. 92-
7247), 1994 WL 662567. It was not mentioned in either party’s
briefs. See Brief for Petitioner, Farmer, 511 U.S. 825 (No. 92-7247),
1993 WL 625980; Brief for Respondents, Farmer,511 U.S. 825
(No.
92-7247), 1993 WL 657282; Reply Brief for Petitioner, Farmer,511 U.S. 825
(No. 92-7247),1994 WL 190959
. It was not mentioned in
the petition for certiorari. Petition for Writ of Certiorari., Farmer,
511 U.S. 825 (No. 92-7247). And it was not mentioned in the opin-
ion of the Seventh Circuit, whose judgment was being reviewed.
See Farmer v. Brennan, 11 F.3d 668 (Mem.) (7th Cir. 1992). So the
issue of whether a Bivens cause of action existed was about as ab-
sent from the Farmer case as it could have been.
The Supreme Court has long and consistently told us that
issues not raised by the parties and not discussed in opinions are
not holdings. Cooper Indus., Inc., v. Aviall Servs., Inc., 543 U.S. 157,
170 (2004) (“Questions which merely lurk in the record, neither
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28 Opinion of the Court 23-11394
brought to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute precedent.”)
(quotation marks omitted); Brecht v. Abrahamson, 507 U.S. 619, 631
(1993) (holding that the Court is not bound by assumptions in pre-
vious cases); United States v. Verdugo-Urquidez, 494 U.S. 259, 272
(1990) (“The Court often grants certiorari to decide particular legal
issues while assuming without deciding the validity of antecedent
propositions, and such assumptions . . . are not binding in future
cases that directly raise the questions.”) (citations omitted); Edel-
man v. Jordan, 415 U.S. 651, 670 (1974) (concluding that the Court
was not bound by a previous decision because that decision “did
not in its opinion refer to or substantively treat the [relevant] argu-
ment”); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38
(1952) (“The [issue] was not there raised in briefs or argument nor
discussed in the opinion of the Court. Therefore, the case is not a
binding precedent on this point.”); Webster v. Fall, 266 U.S. 507, 511
(1925) (“Questions which merely lurk in the record, neither
brought to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute precedents.”);
The Edward, 14 U.S. (1 Wheat.) 261, 276 (1816) (“[T]he [issue] al-
luded to passed sub silentio, without bringing the point distinctly to
our view, and is, therefore, no precedent.”). To sum up all of those
Supreme Court decisions about what are not holdings: “The Court
often grants certiorari to decide particular legal issues while assum-
ing without deciding the validity of antecedent propositions, and
such assumptions . . . are not binding in future cases that directly
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23-11394 Opinion of the Court 29
raise the questions.” Verdugo-Urquidez, 494 U.S. at 272 (citations
omitted).
We have held the same thing. See, e.g., United States v. Penn,
63 F.4th 1305, 1310 (11th Cir. 2023) (“[A]ssumptions are not hold-
ings. And any ‘answers’ to questions neither presented nor decided
are not precedent.”) (citations and quotation marks omitted); see
also United States v. Hurtado, 89 F.4th 881, 902 n.1 (11th Cir. 2023)
(“[A]ssumptions are not holdings.”) (Carnes, J., concurring) (quo-
tation marks omitted).
Farmer is not the only occasion on which the Supreme Court
has assumed for purposes of argument, either explicitly, or implic-
itly as in Farmer, that a Bivens cause of action was cognizable. See
Wilson v. Layne, 526 U.S. 603, 609, 618 (1999) (implicitly assuming
that a Bivens remedy was available for the plaintiff’s Fourth Amend-
ment claim but holding that the officers were entitled to qualified
immunity); Wood v. Moss, 572 U.S. 744, 757, 764 (2014) (“assum[ing]
without deciding that Bivens extends to [the plaintiffs’] First
Amendment claim[],” but ordering dismissal of the claim on quali-
fied immunity grounds); Reichle v. Howards, 566 U.S. 658, 663 n.4
(2012) (same, except reversing the denial of summary judgment for
the defendants on qualified immunity grounds); Ashcroft v. Iqbal,
556 U.S. 662, 675, 687 (2009) (explicitly assuming without deciding
that a First Amendment claim was actionable under Bivens, but
holding that the plaintiff did not plausibly allege a constitutional
violation); Christopher v. Harbury, 536 U.S. 403, 405, 412 n.6 (2002)
(holding that the complaint failed to state an actionable claim, and
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30 Opinion of the Court 23-11394
noting: “The petitioners did not challenge below the existence of a
cause of action under Bivens . . . , and we express no opinion on the
matter in deciding this case.”). If Johnson were correct most, if not
all, of those cases should be listed with Bivens, Davis, and Carlson as
“Bivens cases.” But they are not and never have been. Not by the
Supreme Court and not by our Court.
Our sister circuits that have addressed whether Farmer cre-
ated or recognized an implied Bivens remedy in that context have
determined that it did not. See Fisher v. Hollingsworth, No. 22-2846,
2024 WL 3820969, at *6 (3d Cir. Aug. 15, 2024) (agreeing with the
other circuits “that plaintiffs cannot invoke Bivens by analogizing
their cases to Farmer” because the Supreme Court hasn’t recog-
nized Farmer as a Bivens action and “[a]lthough it might not have
seemed so before, the Egbert Court has now made it clear that
Bivens, Davis, and Carlson are the only three cases in which the Su-
preme Court has recognized a constitutional damages action
against federal officials”); Tate v. Harmon, 54 F.4th 839, 847 (4th Cir.
2022) (“[W]hile the Court allowed the action [in Farmer] to pro-
ceed, it never addressed whether the claim was properly a Bivens
claim.”); Sargeant, 87 F.4th at 365 (holding that Farmer did not cre-
ate a Bivens remedy because “[t]he Court never held — just as-
sumed — that a Bivens remedy was available to the plaintiff”);
Marquez v. Rodriguez, 81 F.4th 1027, 1030–31 (9th Cir. 2023) (“The
Supreme Court’s Bivens jurisprudence squarely forecloses [the
plaintiff]’s argument that Farmer established a cognizable Bivens
context.”). We agree with the Third, Fourth, Seventh, and Ninth
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23-11394 Opinion of the Court 31
Circuits’ holdings that Farmer did not create a Bivens remedy and
thus cannot serve as a comparator case in the new context inquiry. 6
As we have mentioned, Johnson does not contend that his
failure to protect claim is similar to the claims in Bivens, Davis, or
Carlson. Having put all of his argument eggs in Farmer’s basket,
Johnson loses the first stage-issue of whether his failure to protect
claim presents a new Bivens context. It does.
Instead of turning now to the second-stage issue involving
Johnson’s failure to protect claim, we will defer discussion of that
issue until we decide the first-stage issue involving the deliberate
indifference claims. Doing so will enable us to address the second-
stage issue involving both categories of claims together.
B. Johnson’s deliberate indifference to serious medical
needs claims present a new Bivens context
Johnson contends that his deliberate indifference claims are
sufficiently analogous to Carlson that they do not present a new
Bivens context. We disagree.
6 Johnson also argues that our opinion in Caldwell v. Warden, FCI Tal-
ladega, 748 F.3d 1090 (11th Cir. 2014), recognized a Bivens failure to protect
claim against prison officials. But, as we have already discussed, the only de-
cisions that count in step one of the Bivens analysis are the three that the Su-
preme Court has explicitly listed as counting. See supra at 24–26. And Caldwell,
like Farmer, does not hold that the plaintiff’s failure to protect claim is a recog-
nized Bivens cause of action but instead only assumes that it is, and as we have
explained, we are not bound by assumptions. See supra at 27–29. We also note
that Caldwell predates the Supreme Court’s decision in Egbert.
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32 Opinion of the Court 23-11394
In Carlson a prisoner’s estate sued a group of federal prison
officials for violating the prisoner’s due process, equal protection,
and Eighth Amendment rights. 446 U.S. at 16. The complaint al-
leged that the officials knew that the prisoner had chronic asthma,
that the facility he was housed in had grossly inadequate medical
facilities and staff, and also that the officials:
kept [the prisoner] in that facility against the advice of
doctors, failed to give him competent medical atten-
tion for some eight hours after he had an asthma at-
tack, administered contra-indicated drugs which
made his attack more severe, attempted to use a res-
pirator known to be inoperative which further im-
peded his breathing, and delayed for too long a time
his transfer to an outside hospital.
Id. at 16 n.1. The complaint contended that these failures caused
the prisoner’s death. Id. Applying the relevant standard at the
time, the Court concluded that the estate’s Bivens claims were cog-
nizable because there were no special factors counseling hesitation
by the Court nor any substitute remedy for the estate’s harm. Id.
at 18–23.
In deciding whether Johnson’s deliberate indifference claims
present a new context as compared to the Eighth Amendment
claim in Carlson, we look to Ziglar, 582 U.S. 120, for guidance. In
Ziglar, the Court analyzed whether six prisoners’ claim that a war-
den violated the Fifth Amendment by allowing prison guards to
abuse the men during their detention presented a context different
from Carlson. 582 U.S. at 146–47. The complaint alleged that the
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23-11394 Opinion of the Court 33
instances of abuse constituted excessive force and were “serious vi-
olations of Bureau of Prisons policy.” Id. at 147.
After acknowledging that the claim in Ziglar “ha[d] signifi-
cant parallels to . . . Carlson,” the Court held that recognizing the
prisoners’ Fifth Amendment claim would still constitute an exten-
sion of Bivens. Id. It determined that the claim in Ziglar differed
from the Eighth Amendment claim in Carlson in at least three
meaningful ways: (1) “Carlson was predicated on the Eighth
Amendment and [the claim in Ziglar] is predicated on the Fifth”; (2)
the “judicial guidance” surrounding the standard for the claim in
Ziglar (that the warden allowed guards to abuse detainees) was less
developed than the precedent for the claim in Carlson (that the of-
ficials failed to provide medical treatment to a prisoner); and (3)
Ziglar had “certain features that were not considered in the Court’s
previous Bivens cases,” such as “the existence of alternative reme-
dies” and “legislative action suggesting that Congress does not
want a damages remedy.” Id. at 147–49. In its conclusion, the
Ziglar Court again recognized that Carlson and Ziglar were similar
but ultimately held that “[g]iven this Court’s expressed caution
about extending the Bivens remedy, . . . the new-context inquiry is
easily satisfied.” Id. at 149.
As the Supreme Court did with the claim in Ziglar, we
acknowledge that Johnson’s deliberate indifference to serious med-
ical needs claims have “significant parallels” to Carlson’s Eighth
Amendment claim. But also as the Supreme Court did with the
claim in Ziglar, we conclude that Johnson’s claims present a new
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34 Opinion of the Court 23-11394
context. First, Johnson’s claim based on the medical care he re-
ceived after being attacked by Phillip is predicated on a different
constitutional right than the one in Carlson (Fifth Amendment in-
stead of Eighth Amendment). That alone is enough for the claim
to present a new context. See id. at 148 (“[A] case can present a new
context for Bivens purposes if it implicates a different constitutional
right . . . .”). And that is so even though the same analysis applies
to deliberate indifference claims under both amendments. See
Hamm v. DeKalb Cnty., 774 F.2d 1567, 1574 (11th Cir. 1985).
While Johnson’s other deliberate indifference claims arise
under the Eighth Amendment as the claim did in Carlson, that is
not enough to prevent the context of those claims from being a
new one for Bivens purposes. See Hernandez, 589 U.S. at 103 (“A
claim may arise in a new context even if it is based on the same
constitutional provision as a claim in a case in which a damages
remedy was previously recognized.”).
As the Court found in Ziglar, we find that the context of
these claims is different from the context of the claim in Carlson
because there the Court did not consider whether there were alter-
native remedies under the current alternative remedy analysis. See
Ziglar, 582 U.S. at 148 (“This case also has certain features that were
not considered in [Carlson] and that might discourage a court from
authorizing a Bivens remedy” such as “the existence of alternative
remedies”); Egbert, 596 U.S. at 492 (“[W]e have explained that a
new context arises when there are ‘potential special factors that
previous Bivens cases did not consider.’”) (quoting Ziglar, 582 U.S.
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23-11394 Opinion of the Court 35
at 140). In Carlson, the Court asked whether there were “alterna-
tive remed[ies] which [Congress] explicitly declared to be a substi-
tute for recovery directly under the Constitution and viewed as
equally effective,” and it found that the Federal Tort Claims Act did
not meet that standard. Carlson, 446 U.S. at 18–19.
Now as part of the special factors analysis that we consider,
see infra at 37–43, we ask whether any alternative remedy exists that
Congress or the Executive believed to be sufficient to remedy the
type of harm Johnson allegedly suffered. Egbert, 596 U.S. at 498
(explaining that the existence of any “remedial process” that Con-
gress or the Executive “finds sufficient” prohibits the creation of a
Bivens remedy). The fact that Carlson did not consider the existence
of alternative remedies under the framework explained in Egbert
renders Johnson’s claim different from the one in Carlson. See
Ziglar, 582 U.S. at 148; see also Egbert, 596 U.S. at 500–01 (distin-
guishing Davis from the claim in Egbert because Davis “predates our
current approach to implied causes of action and diverges from the
prevailing framework,” and explaining that “a plaintiff cannot jus-
tify a Bivens extension based on ‘parallel circumstances’ with Bivens,
[Davis], or Carlson unless he also satisfies the ‘analytic framework’
prescribed by the last four decades of intervening case law”) (quot-
ing Ziglar, 582 U.S. at 139).
As we will discuss in more detail later, alternative remedies
existed for prisoners in Johnson’s position besides bringing a Bivens
action, namely submission of a grievance form though the BOP ad-
ministrative remedy program. See infra at 37–43; Malesko, 534 U.S.
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36 Opinion of the Court 23-11394
at 74 (explaining that the BOP administrative remedy program is a
“means through which allegedly unconstitutional actions and pol-
icies can be brought to the attention of the BOP and prevented
from recurring”). Because an alternative remedy existed to remedy
the type of harm Johnson allegedly suffered, and because the Carl-
son Court did not consider the existence of such remedies under
the Supreme Court’s current analytical framework, Johnson’s case
is different from Carlson.
Also relevant is the fact that the injury in this case is different
from the one in Carlson. There the prisoner died from an asthma
attack when officials failed to provide the medical care required to
treat it. Here Johnson suffered severe but ultimately non-lethal
physical injuries to his body that were eventually treated by the de-
fendants. The severity, type, and treatment of Johnson’s injuries
differ significantly from those of the prisoner in Carlson.
Johnson lists some similarities between his deliberate indif-
ference claim and the one in Carlson that he believes should be
enough to satisfy the new context inquiry. He contends that both
claims involve prison officials, medical officers in the prison, and
the deprivation of “medically necessary assistance,” including the
treatment prescribed by a doctor. To that extent, the claims in the
two cases are similar on their face. But the first-stage new context
inquiry requires more than “superficial similarities.” Egbert, 596
U.S. at 495; see Ziglar, 582 U.S. at 147–49 (holding that a claim that
presented “significant parallels” to Carlson still presented a new
context).
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23-11394 Opinion of the Court 37
We look at whether the two cases have any relevant differ-
ences, not whether they are mostly the same. As the Court decided
in Ziglar, “[i]f the case is different in a meaningful way from previ-
ous Bivens cases decided by this Court, then the context is new.”
582 U.S. at 139. And even small differences can “easily satisf[y]” the
new context inquiry so long as they are meaningful. See id. at 149.
This case is different from Carlson in several meaningful ways. As
we have noted, one of Johnson’s claims involved a different consti-
tutional claim than in Carlson. And the Court in Carlson did not
apply the current alternative remedies analysis to the claim there.
The severity, type, and treatment of Johnson’s injuries were differ-
ent from those of the plaintiff in Carlson. Those differences make
this a new context under the first-stage inquiry.
C. Special factors argue against extending
Bivens to this new context
Because Johnson’s failure to protect and his deliberate indif-
ference to serious medical needs claims arise in a new context, the
next step –– stage two –– is determining whether there are any spe-
cial factors that would cause us to hesitate before extending Bivens
to those new contexts. “If there is even a single reason to pause
before applying Bivens in a new context, a court may not recognize
a Bivens remedy. Egbert, 596 U.S. at 492 (quotation marks omitted).
One notable special factor is the existence of an alternative
remedial structure to remedy the harm the plaintiff has allegedly
faced. “[I]f Congress already has provided, or has authorized the
Executive to provide, an alternative remedial structure” to address
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38 Opinion of the Court 23-11394
a plaintiff’s allegations, there is no need for an additional Bivens
remedy. Id. at 493 (quotation marks omitted). In other words, if
there is “any alternative, existing process for protecting the injured
party’s interest,” Ziglar, 582 U.S. at 137 (cleaned up) (emphasis
added), the purpose of creating Bivens actions has already been re-
alized by another means, Egbert, 596 U.S. at 498. Courts are not to
“second-guess that calibration by superimposing a Bivens remedy.”
Id.
Congress, through the Executive Branch, has authorized an
alternative remedy that applies here: the BOP’s administrative
remedy program. The Supreme Court has pointed that out. See
Malesko, 534 U.S. at 74 (finding that the BOP’s administrative rem-
edy program was an appropriate alternative remedy to a Bivens
claim). It’s not our place to “second-guess that calibration.” Egbert,
596 U.S. at 498.
Johnson contends that the BOP’s administrative remedy
program should not be considered a sufficient alternative remedy
for him, and hence not a special factor, because the district court
found that he was denied access to the program. But whether the
plaintiff himself was denied access to an alternative remedy is not
the question. The question is “whether the Government has put
in place safeguards to prevent constitutional violations from recur-
ring.” Egbert, 596 U.S. at 498 (alteration accepted) (quotation marks
omitted); see id. at 493 (“Importantly, the relevant question is not .
. . whether the court should provide for a wrong that would other-
wise go unredressed . . . .”) (quotation marks omitted); see also id.
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23-11394 Opinion of the Court 39
at 497 (declining to create a Bivens remedy because “Congress has
provided alternative remedies for aggrieved parties in [the plaintiff]’s
position”) (emphasis added). The alternative remedy question is a
general one, not a specific one; a macro focus, not a micro focus.
That means it does not matter whether we think the admin-
istrative remedy program adequately addressed Johnson’s com-
plaints. It doesn’t matter because the Supreme Court has held that:
“the question whether a given remedy is adequate is a legislative
determination that must be left to Congress, not the federal
courts.” Id. at 498; see also id. at 493 (explaining that it “does [not]
matter that existing remedies do not provide complete relief”)
(quotation marks omitted). The only consideration is whether
there is a remedial process in place that is intended to redress the
kind of harm faced by those like the plaintiff. And there is one here.
The BOP’s administrative remedy program.
Egbert makes clear that an alternative remedy need not satis-
factorily address every plaintiff’s complaints to be sufficient. In that
case the plaintiff argued that the Border Patrol’s grievance process
was not an adequate alternative remedy because, while he was able
to file a claim that was investigated by Border Patrol, he was not
able to participate in the proceedings after his complaint was filed,
nor was there a right to judicial review of an adverse decision. Id.
at 489–90, 497. The Supreme Court rejected that argument, ex-
plaining that it had “never held that a Bivens alternative must afford
rights to participation or appeal.” Id. at 497–98. Because “Bivens is
concerned solely with deterring the unconstitutional acts of
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40 Opinion of the Court 23-11394
individual officers,” the purpose of the alternative remedy special
factor analysis is to avoid encroaching on a process or remedy that
Congress or the Executive has put in place. Id. at 498 (quotation
marks omitted). “So long as Congress or the Executive has created
a remedial process that it finds sufficient to secure an adequate level
of deterrence, the courts cannot second-guess that calibration by
superimposing a Bivens remedy.” Id.
Because the Court has told us that the ultimate question is
whether Congress or the Executive created an alternative remedy,
we can’t look at the adequacy or efficacy of the alternative remedy
in general or in relation to a specific plaintiff. The inquiry can be
criticized as toe-deep, superficial, and cursory, but if Congress or
the Executive has acted, we are to presume that they deemed their
action sufficient to achieve its purpose, and that bars creation of a
Bivens cause of action.
Here, Congress through the Executive Branch put the BOP
administrative remedy program in place to address prisoner griev-
ances, including those involving alleged constitutional violations.
See 28 C.F.R. § 542.10(a) (“The purpose of the Administrative Rem-
edy Program is to allow an inmate to seek formal review of an issue
relating to any aspect of his/her own confinement.”); see also
Malesko, 534 U.S. at 74. In doing so, Congress through the Execu-
tive Branch found that remedial process to be appropriate and ad-
equate. We cannot second-guess that judgment and superimpose
a Bivens remedy on top of the administrative remedy, which would
allow prisoners to bypass the grievance process. See Egbert, 596 U.S.
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23-11394 Opinion of the Court 41
at 497–98. Although Johnson believes he was, in essence, not al-
lowed to access the grievance procedure, that is not enough to dis-
qualify it as a special factor and authorize the creation of a new
Bivens remedy. 7
7 Johnson also asserts that because the Court in Egbert and Hernandez
pointed out that the plaintiffs in those cases were actually able to take ad-
vantage of the relevant grievance procedure, those decisions establish that an
alternative remedial process cannot be a relevant special factor unless it is ac-
tually available to the plaintiff himself. See Hernandez, 589 U.S. at 104–06 (ex-
plaining that because the Executive Branch has already determined that there
was no misconduct and because the case implicated foreign relations, there
was no need for the judicial branch to create a cause of action); Egbert, 596 U.S.
at 497 (“As noted, [the plaintiff] took advantage of this grievance procedure,
prompting a year-long internal investigation into [the defendant’s] conduct.”);
see also id. (“In Hernandez, we declined to authorize a Bivens remedy, in part,
because the Executive Branch already had investigated alleged misconduct by
the defendant Border Patrol agent.”). Although the alternative remedies in
Hernandez and Egbert were actually available to the plaintiffs in those cases, the
Supreme Court in Egbert made clear that is not a requirement. See supra at 38–
39; Egbert, 596 U.S. at 493, 497–98.
True, those clear statements in Egbert are dicta. But, as we stated in
Schwab about some other dicta: “[T]here is dicta and then there is dicta, and
then there is Supreme Court dicta. This is not subordinate clause, negative
pregnant, devoid-of-analysis, throw-away kind of dicta. It is well thought out,
thoroughly reasoned, and carefully articulated analysis by the Supreme
Court . . . .” Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006); see also Pe-
terson v. BMI Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997) (“[D]icta from
the Supreme Court is not something to be lightly cast aside.”); United States v.
City of Hialeah, 140 F.3d 968, 974 (11th Cir. 1998) (“Even though that statement
by the Supreme Court . . . was dictum, it is of considerable persuasive value,
especially because it interprets the Court’s own precedent.”).
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42 Opinion of the Court 23-11394
The Supreme Court has instructed us that the existence of a
grievance procedure is a special factor that by itself is enough to
rule out inferring a Bivens cause of action. This is what the Court
said about that in Egbert, its latest decision on the subject:
Finally, our cases hold that a court may not fashion a
Bivens remedy if Congress already has provided, or
has authorized the Executive to provide, an alterna-
tive remedial structure. If there are alternative reme-
dial structures in place, that alone, like any special fac-
tor, is reason enough to limit the power of the Judici-
ary to infer a new Bivens cause of action. Importantly,
the relevant question is not whether a Bivens action
would disrupt a remedial scheme, or whether the
court should provide for a wrong that would other-
wise go unredressed. Nor does it matter that existing
remedies do not provide complete relief. Rather, the
court must ask only whether it, rather than the polit-
ical branches, is better equipped to decide whether
existing remedies should be augmented by the crea-
tion of a new judicial remedy. [T]he question is who
should decide.
596 U.S. at 493 (cleaned up); see also id. at 492 (“If there is even a
single reason to pause before applying Bivens in a new context, a
court may not recognize a Bivens remedy.”) (quotation marks omit-
ted).
As we have noted, Congress already has provided, or has au-
thorized the Executive to provide, an alternative remedial struc-
ture in the form of a grievance procedure for use by federal prison
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23-11394 Opinion of the Court 43
inmates. And it is in place. That by itself is “a single reason to pause
before applying Bivens” in the new context of this case, and the Su-
preme Court has instructed us that means we may not recognize a
Bivens remedy in a case like this one. Egbert, 596 U.S. at 492 (quo-
tation marks omitted). We cannot extend Bivens here because do-
ing so would “arrogate legislative power” and allow federal prison-
ers to bypass the grievance process put in place by Congress
through the Executive Branch. See Egbert, 596 U.S. at 492 (altera-
tion accepted) (quotation marks omitted).
IV. Conclusion
We follow the Supreme Court’s instructions and will not
venture beyond the boundaries it has staked out. We will not infer
any new Bivens causes of action in this case.
AFFIRMED.