Laquan Johnson v. Elaine Terry

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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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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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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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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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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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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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23-11394 Opinion of the Court 19

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.