Petition for Writ of Certiorari — LaQuan Stederick Johnson, Petitioner v. Elaine Terry, et al.
Supreme Court briefMay 13, 2025
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NO. ______
In the
Supreme Court of the United States
________________
LAQUAN STEDERICK JOHNSON,
v.
Petitioner,
ELAINE TERRY, OFFICER BURGESS, DR. MARTIN,
DR. WINSTON, NURSE GARCIA, DR. NWUDE, MS.
HARRIS, LIEUTENANT AVERY, OFFICER HOBBS,
OFFICER MACKINBERG, OFFICER WILLIS, OFFICER
FAYAD, and DARLENE DREW,
________________
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the
Eleventh Circuit
________________
PETITION FOR WRIT OF CERTIORARI
________________
J. Matthew Brigman
Logan R. Hobson
Joseph B. Hendricks
KING & SPALDING LLP
1180 Peachtree St. NE
Suite 1600
Atlanta, Ga 30309
Amy R. Upshaw
Counsel of Record
KING & SPALDING LLP
1700 Pennsylvania Ave. NW
Washington, DC 20006
(202) 737-0500
aupshaw@kslaw.com
Counsel for Petitioner
May 13, 2025
QUESTION PRESENTED
An individual may be entitled to pursue a Bivens
remedy against a federal official who violated his
constitutional rights, unless there are special factors
indicating that such a remedy would interfere with the
authority of other branches of government. Egbert v.
Boule, 596 U.S. 482, 492 (2022). Where a prisoner has
“full access to remedial mechanisms established by
the [Bureau of Prisons], including suits in federal
court for injunctive relief and grievances filed through
the BOP’s Administrative Remedy Program,” the
special-factors test is satisfied, foreclosing a Bivens
remedy. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74
(2001). But where a plaintiff “lack[s] any alternative
remedy for harms caused by an individual officer’s
unconstitutional conduct,” a Bivens remedy is
appropriate. Id. at 70. Here, the Eleventh Circuit held
that the mere existence of the BOP’s Administrative
Remedy Program satisfied the special-factors test,
even though “plaintiff himself was denied access” to
that program. App.37.
The question presented is
Does the existence of the BOP’s Administrative
Remedy Program foreclose a Bivens action where
prison officials prevent the inmate from accessing that
program, as the Eleventh Circuit held below, or does
barring a prisoner from accessing that alternative
remedy allow a prisoner to pursue a Bivens claim, as
the Fourth Circuit held in Fields v. Federal Bureau of
Prisons, 109 F.4th 264 (4th Cir. 2024)?
ii
PARTIES TO THE PROCEEDING *
Petitioner LaQuan Johnson was plaintiff in
district court and appellant in the court of appeals in
No. 23-11394.
Respondents Elaine Terry, Officer Burgess, Dr.
Martin, Dr. Winston, Nurse Garcia, Dr. Nwude, Ms.
Harris, Lieutenant Avery, Officer Hobbs, Officer
Mackinberg, Officer Willis, Officer Fayad, and
Darlene Drew were defendants in the district court
and appellees in the court of appeals in No. 23-11394.
Parties listed as terminated in the district court include
Defendants D.J. Harmon, BOP, John Does, Jane Does, Dr.
Peterson, Officer Johnson, Warden Harmon.
*
iii
RELATED PROCEEDINGS
The following proceedings are directly related to
this petition under Rule 14.1(b)(iii):
United States Court of Appeals for the Eleventh
Circuit:
Johnson v. Terry, No. 23-11394 (Feb. 20, 2025)
United States District Court for the Northern District
of Georgia:
Johnson v. Terry, No. 1:18-cv-01899-AT (Mar. 23,
2023)
iv
TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES .................................... viii
PETITION FOR WRIT OF CERTIORARI ................ 1
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
CONSTITUTIONAL
AND
STATUTORY
PROVISIONS INVOLVED...................................... 2
INTRODUCTION ....................................................... 2
STATEMENT OF THE CASE ................................... 4
A. Legal Background ........................................ 4
B. Facts and Procedural History ...................... 6
REASONS FOR GRANTING THE PETITION....... 10
I.
The Eleventh Circuit’s Decision Creates a
Circuit Split ....................................................... 10
II. The Eleventh Circuit’s Approach Is Incorrect .. 12
A. The Eleventh Circuit Misapplied Egbert... 12
B. The
Eleventh
Circuit’s
Approach
Infringes on Congress’s Policy-Making
Responsibility and Threatens the
Separation of Powers.................................. 15
C. The Eleventh Circuit’s Approach Does
Not Take Adequate Account of This
Court’s Emphasis on Deterrence ............... 16
v
III. This Case Is an Ideal Vehicle for Resolving an
Important Legal Issue ....................................... 17
CONCLUSION ......................................................... 19
APPENDIX
Appendix A
Corrected Opinion of the United
States Court of Appeals for the
Eleventh Circuit, Johnson v. Terry,
No. 23-11394 (Oct. 3, 2024) ................. App-1
Appendix B
Vacated Opinion of the United
States Court of Appeals for the
Eleventh Circuit, Johnson v. Terry,
No. 23-11394 (Aug. 12, 2024) ............ App-43
Appendix C
Judgment of the United States
District Court for the Northern
District of Georgia, Johnson v. Terry,
No. 1:18-cv-01899-AT (Mar. 23,
2023).................................................... App-84
Appendix D
Order of the United States Court of
Appeals for the Eleventh Circuit
Denying the Petition for Rehearing
En Banc, Johnson v. Terry, No. 2311394 (Feb. 12, 2025) ......................... App-86
vi
Appendix E
Order of the United States District
Court for the Northern District of
Georgia
Adopting
Magistrate
Judge’s
Final
Report
&
Recommendation,
Granting
Summary Judgment, and Closing
Case, Johnson v. Terry, No. 1:18-cv01899-AT (Mar. 22, 2023) .................. App-88
United States District Court for the
Northern
District
of
Georgia
Magistrate Judge’s Final Report &
Recommendation
on
Summary
Judgment, Johnson v. Terry, No.
1:18-cv-01899-AT (Jan. 30, 2023) .... App-102
Order of the United States District
Court for the Northern District of
Georgia
Adopting
Magistrate
Judge’s
Non-Final
Report
&
Recommendation
and
Denying
Motion to Dismiss, Johnson v. Terry,
No. 1:18-cv-01899-AT
(Aug.
16,
2021).................................................. App-163
United States District Court for the
Northern
District
of
Georgia
Magistrate
Judge’s
Non-Final
Report & Recommendation and
Denying Motion to Dismiss, Johnson
v. Terry, No. 1:18-cv-01899-AT (June
24, 2021)............................................ App-189
vii
Appendix F
Relevant Constitutional Provisions
U.S. Const. amend. V .................... App-221
U.S. Const. amend. VIII ................ App-221
viii
TABLE OF AUTHORITIES
Cases
Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).................................................. 3
Carrin v. Smiledge,
--- F. Supp. 3d ---,
2025 WL 1199445 (N.D. Fla. Mar. 26, 2025) .......... 9
Corr. Servs. Corp. v. Malesko,
534 U.S. 61 (2001).................................... 4, 6, 13, 16
Egbert v. Boule,
596 U.S. 482 (2022).............................. 3, 5, 6, 12, 13
Fields v. Fed. Bureau of Prisons,
109 F.4th 264 (4th Cir. 2024) .................... 10, 11, 12
Hernandez v. Mesa,
589 U.S. 93 (2020)............................................ 13, 15
Jacobs v. Alam,
915 F.3d 1028 (6th Cir. 2019).................................. 5
Little v. Jones,
607 F.3d 1245 (10th Cir. 2010).............................. 14
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ................................... 2
Miller v. Norris,
247 F.3d 736 (8th Cir. 2001).................................. 14
Ross v. Blake,
578 U.S. 632 (2016)................................................ 14
Victoria v. Withers,
No. 5:24-CV-358-TJC-PRL,
2025 WL 417560 (M.D. Fla. Feb. 6, 2025) .............. 9
ix
Ziglar v. Abbasi,
582 U.S. 120 (2017).......................................... 3, 5, 6
Constitutional Provisions
U.S. Const. amend. V ............................................. 2, 6
U.S. Const. amend. VIII ................................... 2, 6, 10
Statutes & Regulations
28 U.S.C. § 1254(1) ..................................................... 1
28 U.S.C. § 1915A(b) ................................................ 10
42 U.S.C. § 1997e(a) ................................................. 14
28 C.F.R. § 542.10................................................. 6, 16
Other Authorities
Merriam-Webster (2025),
https://www.merriamwebster.com/dictionary/alternative....................... 14
Petition for Writ of Certiorari,
Egbert v. Boule, 596 U.S. 482 (2022)
(No. 21-147), 2021 WL 3409109 .............................. 5
Statistics, BOP.gov (May 8, 2025),
https://www.bop.gov/about/statistics/popula
tion_statistics.jsp#:~:text=156%2C254%20
Total%20Federal%20Inmates%20*%20143
%2C675%20federal,federal%20inmates%20
in%20other%20types%20of%20facilities .............. 18
PETITION FOR WRIT OF CERTIORARI
Petitioner LaQuan Johnson (“Petitioner” or
“Mr. Johnson”) respectfully petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Eleventh Circuit.
OPINIONS BELOW
The initial opinion of the United States Court of
Appeals for the Eleventh Circuit is published at 112
F.4th 995 (11th Cir. 2024) and reproduced at App.43–
83. The subsequent, corrected decision is published at
119 F.4th 840 (11th Cir. 2024) and reproduced at
App.1–42. The decisions of the United States District
Court of the Northern District of Georgia are
unpublished. The March 23, 2023 judgment is
reproduced at App.84–85. The March 22, 2023
summary judgment opinion is available at 2023 WL
3215366 and reproduced at App.88–101. The August
16, 2021 order denying Defendants’ motion to dismiss
is available at 2021 WL 11718228 and reproduced at
App.163–188.
JURISDICTION
The Eleventh Circuit issued its opinion on August
12, 2024. A timely petition for rehearing led the court
to issue a substitute opinion on October 3, 2024, but
the petition for panel and en banc rehearing was
ultimately denied on February 12, 2025. App.86–87.
The opinion was entered as the judgment of the
Eleventh Circuit on February 20, 2025. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment to the United States
Constitution, reproduced at App.221, provides as
follows:
No person shall be held to answer for a
capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand
Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual
service in time of War or public danger; nor
shall any person be subject for the same
offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without
due process of law; nor shall private property
be taken for public use, without just
compensation.
The Eighth Amendment to the United States
Constitution, reproduced at App.221, provides as
follows:
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted.
INTRODUCTION
A foundational principle dating back to the
English common law is “that every right, when
withheld, must have a remedy, and every injury its
proper redress.” Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 163 (1803) (quotation marks omitted)
3
(citing Blackstone’s Commentaries). The Founding
Fathers held some rights so dear that they enshrined
them into the Constitution. But the federal courts of
appeals are intractably divided over whether it is
appropriate to deny any remedy to individuals when a
federal official violates those rights. The decision
below expressly acknowledged this circuit split in
holding that a damages remedy is unavailable, even
where government officials affirmatively prevent an
individual from accessing any other remedy. That
holding erodes this Nation’s most cherished rights,
gives government officials carte blanche to ignore the
Constitution, and leaves the vindication of
constitutional rights to geographic happenstance. This
Court’s review on this issue of serious importance is
needed.
In Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), this
Court recognized that an individual may, in certain
circumstances, recover damages from a federal officer
who has violated his constitutional rights. To
determine whether such a remedy is available in a
new context, the Court considers whether “there are
‘special 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 v. Boule, 596 U.S. 482, 492 (2022)
(quoting Ziglar v. Abbasi, 582 U.S. 120, 136 (2017)).
What counts as a “special factor” has led to a sharp
disagreement in the courts of appeal. The Eleventh
Circuit held that the existence of an alternative
remedial process alone qualifies as a “special factor,”
even if that process is impossible to access. In reaching
that holding, the court acknowledged that it was
4
departing from the Fourth Circuit, which has held
that the same alternative remedial process is a
“special factor” only when it is available to access. Left
undisturbed, this split will remain unresolved and
give rise to further confusion in the district courts.
The split results in grave inequities in the
protection of constitutional rights. Today, prisoners
who suffer the same violation of the same
constitutional right receive markedly different
remedies depending on the circuit in which their
prison sits. Not only that, but prisoners will also now
face vastly different conditions because of this legal
divide. As this Court has recognized, “[t]he purpose of
Bivens is to deter individual federal officers from
committing constitutional violations.” Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 70 (2001). For prisons
in the Fourth Circuit, this deterrent effect remains in
full force. But for prisons in the Eleventh Circuit,
prison officials who have acted unlawfully now have a
map to avoid any repercussions—just prevent
prisoners from accessing the administrative remedy
program in the first instance.
In short, this case involves a clear and
acknowledged circuit conflict on a vitally important
question of remedies for the violation of constitutional
rights. The petition should be granted.
STATEMENT OF THE CASE
A. Legal Background
The Court in Bivens held that an individual may
recover damages where a federal officer has violated
his constitutional rights. Although remedies initially
exploded under Bivens, this Court has trimmed
5
Bivens’s “outer reaches” in recent years while taking
“great care” to confirm that the “core of Bivens”
remains intact. Jacobs v. Alam, 915 F.3d 1028, 1037
(6th Cir. 2019) (citing Abbasi, 582 U.S. at 133–34).
Although there have been calls for the Court to
overturn Bivens entirely, see, e.g., Petition for Writ of
Certiorari at i, Egbert, 596 U.S. 482 (No. 21-147), 2021
WL 3409109, the Court has declined the invitation.
Instead, it has made clear that it is not “dispens[ing]
with Bivens altogether.” Egbert, 596 U.S. at 491.
To determine whether a damages remedy under
Bivens is appropriate, the Court has articulated a twopart test. Abbasi, 582 U.S. at 138; Egbert, 596 U.S. at
492. First, the Court determines “whether the case
presents ‘a new Bivens context’—i.e., is it
‘meaningful[ly]’ different from the three cases in
which the Court has implied a damages action.”
Egbert, 596 U.S. at 492 (alteration in Egbert) (quoting
Abbasi, 582 U.S. at 139). “Second, if a claim arises in
a new context, a Bivens remedy is unavailable if there
are ‘special 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.’” Id. (quoting Abbasi, 582 U.S. at 136). While
the Court has not expressly defined “special factors,”
it has stated that “the ‘inquiry must concentrate on
whether the Judiciary is well suited, absent
congressional action or instruction, to consider and
weigh the costs and benefits of allowing a damages
action to proceed.’” Id. at 513 (Sotomayor, J.,
concurring in part) (quoting Abbasi, 582 U.S. at 136).
Such special factors can include whether the remedy
touches on matters in which the Executive Branch
exercises considerable deference, as in national
6
security. Abbasi, 582 U.S. at 142. And special factors
also include whether “alternative methods of relief are
available.” Id. at 137, 145.
In the context of litigation by prisoners, the
Bureau of Prisons has established an Administrative
Remedy Program or “ARP.” See 28 C.F.R. § 542.10.
The purpose of this program “is to allow an inmate to
seek formal review of an issue relating to any aspect
of his/her own confinement.” Id. “[F]ull access to
[these] remedial mechanisms established by the BOP”
is a special factor that counsels against a Bivens
remedy. Malesko, 534 U.S. at 74; see Egbert, 596 U.S.
at 497 (“In Malesko, we explained that Bivens relief
was unavailable because federal prisoners could,
among other options, file grievances through an
‘Administrative Remedy Program.’”).
B. Facts and Procedural History
LaQuan Johnson was incarcerated at USPAtlanta from September 2015 to April 2019.
Mr. Johnson repeatedly attempted to seek relief for
harms he suffered in prison through the BOP’s ARP.
But prison officials repeatedly blocked him from doing
so. Following years of abuse and neglect, which
resulted in severe injuries, including a shattered jaw,
Mr. Johnson filed his Bivens claims in the U.S. District
Court for the Northern District of Georgia. App.9. The
operative complaint alleged, among other things,
failure-to-protect claims and medical indifference
claims. App.21–23. Because the events in question
took place before and after Mr. Johnson’s conviction in
April 2017, Mr. Johnson sought relief under both the
Fifth and Eighth Amendments of the U.S.
Constitution. App.21–23.
7
Defendants moved to dismiss Mr. Johnson’s
complaint for failure to exhaust his administrative
remedies under the Prison Litigation Reform Act of
1995 (“PLRA”). App.164. The district court denied
Defendants’ motion without prejudice and ordered the
parties to conduct targeted discovery on the
exhaustion issue. App.165. After discovery closed,
Defendants renewed their motion to dismiss. App.165.
The Magistrate found that Mr. Johnson was denied
access to the administrative remedy program at USPAtlanta and recommended that the district court deny
Defendants’ motion to dismiss. Specifically, the
Magistrate found, based on the evidence presented,
that Mr. Johnson had sufficiently established that
(1) he “never received the Handbook containing the
particulars of the [ARP]”; (2) “he was refused
grievance forms or those forms were not turned in”;
(3) “he often did not receive any responses to his
grievances or he received denials after the deadline for
appeal, so that he could not correct the technical errors
on which the denials were based”; (4) “the counselor
and officers upon whom Plaintiff was to rely to provide
him with forms and/or forward his remedy requests
were not trained in connection with the ARP and were
not familiar with the ARP’s requirements”; and most
troublingly (5) “when Plaintiff did attempt to file
remedy requests he was assaulted, placed in the
[special housing unit], placed in shackles, his cell
ransacked, and threatened and intimidated.” App.215.
Over Defendants’ objections, the district court
adopted the Magistrate’s R&R, citing the Magistrate’s
specific findings above, and denied Defendants’
motion. App.186–187. The district court explicitly
noted that Mr. Johnson “presented an abundance of
8
record evidence . . . that the generally available
remedies were not available to him because the
administrative review process was both a ‘dead end’
and because prison administrators thwarted his
attempts to grieve in a number of ways.” App.179. The
district court further observed that Plaintiff had
encountered “consistent and multi-front blocking of
the ARP.” App.179.
Defendants later moved for summary judgment,
arguing in part that Mr. Johnson’s Bivens claims were
not cognizable. Dkt.109. Shortly thereafter, the
Supreme Court issued its Egbert decision. Following
the close of summary judgment briefing, the district
court requested additional argument specific to Egbert
and its potential impact on Mr. Johnson’s claims.
Dkt.194. The Magistrate recommended that the
district court grant Defendants’ motions for summary
judgment because each of Johnson’s Bivens claims
presented a new context, and because special factors
(i.e., the ARP) counseled against recognizing such
claims. App.114–124. The district court reluctantly
agreed and granted the Defendants’ motions for
summary judgment, concluding that Mr. Johnson’s
claims did not entitle him to a Bivens remedy.
App.101.
The Eleventh Circuit affirmed the district court’s
decision on August 12, 2024. App.83. Relevant here,
the panel found that the mere existence of the BOP’s
administrative remedy program—even if totally
unavailable to Mr. Johnson—was a “special factor”
that counseled against recognition of Mr. Johnson’s
Bivens claims. App.78–83. While the panel
acknowledged the district court’s finding that the
9
administrative remedy program was completely
unavailable to Mr. Johnson due to Defendants’
intentional interference, it nonetheless concluded that
actual access “is not the question.” App.78. What
matters instead, according to the panel, is whether the
program exists in the abstract. See App.81 (“Although
Johnson believes he was, in essence, not allowed to
access the grievance procedure, that is not enough to
disqualify it as a special factor and authorize the
creation of a new Bivens remedy.”).
Mr. Johnson filed a petition for rehearing en banc
on September 3, 2024. Among the questions presented
was “whether the BOP’s administrative remedy
process can preclude recognizing a Bivens claim when
that process is completely unavailable to Plaintiff.”
COA.Dkt.46 at iv. While the panel corrected its initial
opinion to remove improper references to the
Fourteenth Amendment, the Eleventh Circuit denied
the petition. Thus, in the Eleventh Circuit, no Bivens
remedy will be available to federal prisoners who
suffer the deprivation of their constitutional rights,
even if they have no access to any other alternative
remedy. See Carrin v. Smiledge, --- F. Supp. 3d ---,
2025 WL 1199445, at *4 (N.D. Fla. Mar. 26, 2025)
(“Though the Eleventh Circuit acknowledged that
prison officials may have prevented the plaintiff from
accessing the BOP ARP, it nonetheless held that this
was ‘not enough to disqualify [the BOP ARP] as a
special factor.’” (quoting App.40)), appeal docketed,
No. 25-11330 (11th Cir. Apr. 22, 2025); Victoria v.
Withers, No. 5:24-CV-358-TJC-PRL, 2025 WL 417560,
at *3 (M.D. Fla. Feb. 6, 2025) (“As noted by the
Eleventh Circuit, ‘Congress already has provided, or
has authorized the Executive to provide, an
10
alternative remedial structure in the form of a
grievance procedure for use by federal inmates. And it
is in place. That by itself is a single reason to pause
before applying Bivens in [a] new context[.]’” (quoting
App.42)).
REASONS FOR GRANTING THE PETITION
I.
The Eleventh Circuit’s Decision Creates a
Circuit Split.
The United States Courts of Appeals have
answered the question presented in conflicting ways.
Addressing materially similar facts, the Fourth
Circuit held that a Bivens claim remains available
where a prison official bars the plaintiff from accessing
any alternative remedy. In Fields v. Federal Bureau of
Prisons, a prisoner filed a Bivens claims, claiming he
was the victim of excessive force, in violation of the
Eighth Amendment. 109 F.4th 264, 268 (4th Cir.
2024). The plaintiff specifically alleged that various
officers physically assaulted him while he was
restrained in an observation cell. Id. The plaintiff
further alleged that he attempted to utilize the BOP’s
administrative grievance procedure, but staff denied
him access to the requisite forms. Id. After his
unsuccessful attempts to avail himself of the BOP’s
program, plaintiff filed a pro se case. Id. The U.S.
District Court for the Western District Virginia
dismissed plaintiff’s claims under the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(b).
Id. Plaintiff appealed.
The Fourth Circuit reversed, holding that
“alternative remedies” are a “special factor” only when
an individual has access to those remedies. Although
11
alternative remedies can preclude a Bivens remedy
when they are available, that precedent did not apply
where a plaintiff “lacked access to alternative
remedies because prison officials deliberately
thwarted his access to them.” Fields, 109 F.4th at 274.
The relevant inquiry, explained the court, “is whether
the ARP is operational, such that it can provide any
remedy to any prisoner at all.” Id. The panel further
found that, because it was the rogue officers who
thwarted plaintiff’s access to alternative remedies, the
separation-of-powers concerns did not weigh against
the Bivens remedy. The Court was not “secondguess[ing the] calibration” effected by the coordinate
branches because that calibration has already been
disrupted. Id. (quotation marks omitted). Accordingly,
“[i]n such a case, where an inmate brings a claim
against individual, front-line officers who personally
subjected the plaintiff to excessive force in clear
violation of prison policy, and where rogue officers
subsequently thwarted the inmate’s access to
alternative remedies, no special factors counsel
against providing a judicial remedy.” Id. at 272.
Judge Richardson dissented, adopting an analysis
more in line with the Eleventh Circuit. Id. at 276.
According to the dissent, in relevant part, the mere
existence of an alternative remedial scheme should
have been enough to deny a Bivens remedy. Id. at 280.
Although “‘Fields lacked access to alternative
remedies because prison officials deliberately
thwarted his access to them,’” the dissent called it
“myopic[]” to focus on the availability of alternative
remedies. Id.
12
Fields and Johnson are uniquely similar cases
that reached diametrically opposite results. The
differing results cannot be explained by different facts.
If anything, Mr. Johnson’s case presents a stronger
case factually. While Fields’s claim that he was
thwarted from accessing the BOP’s administrative
grievance procedure was only an allegation, Fields,
109 F.4th at 272, Mr. Johnson’s was a finding of fact
by the district court after benefit of discovery,
App.167–168. The differing results can only be
explained by the differing interpretations of this
Court’s precedent. And only this Court can resolve
that clear divide.
II. The Eleventh
Incorrect.
Circuit’s
Approach
Is
A. The Eleventh Circuit Misapplied Egbert.
The Eleventh Circuit’s decision is not only in
tension with Fourth Circuit precedent but also with
this Court’s precedent. Although the Eleventh Circuit
cited Egbert in reaching its decision, that decision cuts
the other way. In Egbert, the Court held that a
plaintiff bed-and-breakfast operator could not bring
Bivens claims against a United States Border Patrol
agent for excessive force under the Fourth
Amendment and for retaliation under the First
Amendment. 596 U.S. at 502. The Court applied the
two-part analysis from Abbasi regarding when courts
may imply a Bivens remedy. Id. at 494–501. At step
two, the Court rejected plaintiff’s argument that the
Border Patrol’s grievance process was inadequate
because, under the existing framework, he had “no
right to judicial review of an adverse determination.”
Id. at 497. Emphasizing that petitioner “took
13
advantage of [the] grievance procedure, prompting a
year-long internal investigation,” the Court found that
the grievance process “secured adequate deterrence
and afforded [petitioner] an alternative remedy.” Id.
at 497–98. The Court therefore refused to “secondguess”
the
Border
Patrol’s
procedure
by
“superimposing a Bivens remedy.” Id. at 498.
But here, unlike the plaintiff in Egbert, Mr.
Johnson is not challenging the appellate court’s
alternative remedial structure analysis based on the
“adequacy or efficacy” of the ARP. App.39. When
operated as Congress and the Executive intend, the
ARP can provide adequate relief to federal inmates.
Mr. Johnson readily concedes that point. Indeed, Mr.
Johnson sought relief under the ARP before turning to
federal court as a last resort after he was blocked by
prison officials from accessing the program.
Mr. Johnson is instead seeking relief in court
because the ARP was illusory—he could not access
that alternative remedy at all. The district court
determined exactly this, finding that prison officials at
USP-Atlanta actively prevented Mr. Johnson from
accessing the ARP. App.167–169. This situation
presents a very different scenario from the one
considered in Egbert—and the Bivens decisions which
preceded it—because they all relied on the availability
of alternative procedures. See Hernandez v. Mesa, 589
U.S. 93, 105–06 (2020) (declining to authorize a Bivens
remedy, in part, because the Executive Branch
already had investigated alleged misconduct by the
defendant Border Patrol agent); Malesko, 534 U.S. at
74 (explaining that plaintiff’s lack of alternative tort
remedies was due to “strategic choice” and providing
14
that plaintiff also had “full access” to the BOP’s
Administrative Remedy Program).
Availability of an alternative remedy matters. In
a similar context, this Court has explained that
prisoners cannot be bound by administrative remedy
regimes where prisoners cannot access those
remedies. The PLRA prohibits inmates from bringing
a legal challenge without first exhausting “such
administrative remedies as . . . available.” 42 U.S.C.
§ 1997e(a). This Court has found that an
administrative remedy is unavailable “when prison
administrators thwart inmates from taking advantage
of a grievance process through machination,
misrepresentation, or intimidation.” Ross v. Blake,
578 U.S. 632, 644 (2016); see also Little v. Jones, 607
F.3d 1245, 1250 (10th Cir. 2010) (“Where prison
officials prevent, thwart, or hinder a prisoner’s efforts
to avail himself of an administrative remedy, they
render that remedy ‘unavailable’ and a court will
excuse the prisoner’s failure to exhaust.”); Miller v.
Norris, 247 F.3d 736, 740 (8th Cir. 2001) (“We believe
that a remedy that prison officials prevent a prisoner
from ‘utiliz[ing]’ is not an ‘available’ remedy . . . .”).
If a remedy is not “available” to a prisoner, then it
is no alternative at all. “Alternative,” when used as an
adjective, means “offering or expressing a choice.”
Merriam-Webster (2025). Here, Mr. Johnson had no
other remedial offering or choice—he had no
alternative. His only recourse was the Bivens action
he filed.
Even the panel acknowledged that “the
alternative remedies in Hernandez and Egbert were
actually available to the plaintiffs in those cases,”
15
distinguishing them from the case at hand. App.40
n.7. Instead of following Hernandez and Egbert to
determine whether any alternative remedy was
available, the panel simply labeled the Court’s
language as dicta. Id. That approach was wrong. As a
matter of first principles, and as a matter of precedent,
the Eleventh Circuit should have looked to whether
the alternative remedy was actually available to Mr.
Johnson. This Court should grant review and correct
the Eleventh Circuit’s error.
B. The
Eleventh
Circuit’s
Approach
Infringes on Congress’s Policy-Making
Responsibility and Threatens the
Separation of Powers.
Separation-of-powers concerns likewise weigh
against the Eleventh Circuit’s approach. The Eleventh
Circuit justified its decision, in part, by its obligation
to defer to the legislative branch on policy matters.
App.20 (“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.’” (quoting Hernandez, 589 U.S. at
102)).” In reality, however, the Eleventh Circuit’s
decision disrupts the delicate policy decision that
Congress and the Executive set forth. The political
branches chose to allow inmates to pursue remedies
for the violation of rights that occur during federal
confinement. Under the Eleventh Circuit’s approach,
that policy choice has been wholly disregarded.
The Eleventh Circuit’s decision to allow prison
officials to disrupt the ARP and Bivens claims by
preventing prisoners from accessing any alternative
16
remedy fundamentally redesigns the BOP’s remedial
framework. The BOP’s chosen remedial process is a
four-level program to “allow an inmate to seek formal
review of an issue relating to any aspect of his/her own
confinement.” 28 C.F.R. § 542.10(a); see also App.6–7.
The Eleventh Circuit, while saying that it does not
want to second-guess that remedial design, has
effectively changed the system to allow prison
personnel to play a gatekeeping role and determine
whether they should even allow prisoners to access the
grievance process in the first instance. App.37–38
(“[W]hether the plaintiff himself was denied access to
an alternative remedy is not the question. . . . The only
consideration is whether there is a remedial process in
place . . . .”). But that process is not one that Congress
or the Executive Branch adopted.
The Eleventh Circuit’s decision to deny Mr.
Johnson any remedy precisely because the Executive
Branch afforded a remedy turns separation-of-powers
on its head. The alternative remedy put in place by the
Executive does not allow prison officials to deny
prisoners access to remedies, as the officials did here.
So, while it is important for courts to defer to the
remedial schemes crafted by the political branches,
here, neither Congress nor the Executive thought the
process afforded to Mr. Johnson was “appropriate and
adequate.” App.40.
C. The Eleventh Circuit’s Approach Does
Not Take Adequate Account of This
Court’s Emphasis on Deterrence.
The Eleventh Circuit further went astray by
failing to meaningfully consider deterrence, which is
at the heart of the Bivens inquiry. See Malesko, 534
17
U.S. at 70 (“The purpose of Bivens is to deter
individual
federal
officers
from
committing
constitutional violations.”). Far from deterring prison
officials from committing constitutional violations, the
Eleventh Circuit’s opinion gives prison officials a
roadmap on how to mistreat inmates without any
potential repercussion—just bar them from accessing
administrative remedy procedures.
By deciding to ignore all factual context whenever
a remedial process exists in the abstract, the Eleventh
Circuit’s opinion empowers prison officials to cut off a
prisoner’s access to the remedial processes intended to
deter those very officials from improper actions.
Prison officials will feel emboldened to do what the
officials here did to Mr. Johnson—block prisoners
from using the BOP’s remedial process to insulate
themselves from the consequences of their own, prior
misconduct. Absent a Bivens action, prisoners in these
conditions will have no remedy and prison officials
who engage in grave misconduct will face no
consequence.
III. This Case Is an Ideal Vehicle for Resolving
an Important Legal Issue.
This petition allows the Court to cleanly address
a clear circuit split on an important question of law.
The Eleventh Circuit acknowledged that the Fourth
Circuit’s decision in Fields cut the other way but
ignored it as “a far-afield outlier.” App.18. The
difference between the outcomes of these two decisions
is based purely on law; there is no relevant factual
distinction. Nor is there any dispute about the facts
here—the district court found, and the Eleventh
Circuit acknowledged, that prison officials denied
18
Mr. Johnson access to any alternative remedy. App.40
n.7, App.93–94.
The importance of this issue cannot be overstated.
There are nearly 150,000 federal prisoners in the
United States. 1 Whether those individuals will have
any recourse when their constitutional rights have
been violated is a serious—and sometimes life-ordeath—matter. This Court should not stand by. The
Eleventh Circuit should not be permitted to deny Mr.
Johnson a remedy for the violation of his rights, when
the Executive, Congress, and this Court are all in
accord that a remedy is needed.
1 Statistics, BOP.gov (May 8, 2025), https://www.bop.gov/about/
statistics/population_statistics.jsp#:~:text=156%2C254%20Total
%20Federal%20Inmates%20*%20143%2C675%20federal,federal
%20inmates%20in%20other%20types%20of%20facilities.
19
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
J. Matthew Brigman
Amy R. Upshaw
Logan R. Hobson
Counsel of Record
Joseph B. Hendricks
KING & SPALDING LLP
KING & SPALDING LLP 1700 Pennsylvania Ave. NW
1180 Peachtree St. NE
Washington, DC 20006
Suite 1600
(202) 737-0500
Atlanta, Ga 30309
aupshaw@kslaw.com
Counsel for Petitioner
May 13, 2025
APPENDIX
TABLE OF APPENDICES
Appendix A
Corrected Opinion of the United States
Court of Appeals for the Eleventh Circuit,
Johnson v. Terry, No. 23-11394 (Oct. 3,
2024) ............................................................ App-1
Appendix B
Vacated Opinion of the United States
Court of Appeals for the Eleventh Circuit,
Johnson v. Terry, No. 23-11394 (Aug. 12,
2024) .......................................................... App-43
Appendix C
Judgment of the United States District
Court for the Northern District of
Georgia, Johnson v. Terry, No. 1:18-cv01899-AT (Mar. 23, 2023) ......................... App-84
Appendix D
Order of the United States Court of
Appeals for the Eleventh Circuit Denying
the Petition for Rehearing En Banc,
Johnson v. Terry, No. 23-11394 (Feb. 12,
2025)........................................................... App-86
Appendix E
Order of the United States District Court
for the Northern District of Georgia
Adopting Magistrate Judge’s Final
Report & Recommendation, Granting
Summary Judgment, and Closing Case,
Johnson v. Terry, No. 1:18-cv-01899-AT
(Mar. 22, 2023)........................................... App-88
ii
United States District Court for the
Northern District of Georgia Magistrate
Judge’s Final Report & Recommendation
on Summary Judgment, Johnson v.
Terry, No. 1:18-cv-01899-AT (Jan. 30,
2023)......................................................... App-102
Order of the United States District Court
for the Northern District of Georgia
Adopting Magistrate Judge’s Non-Final
Report & Recommendation and Denying
Motion to Dismiss, Johnson v. Terry,
No. 1:18-cv-01899-AT (Aug. 16, 2021) .... App-163
United States District Court for the
Northern District of Georgia Magistrate
Judge’s
Non-Final
Report
&
Recommendation and Denying Motion to
Dismiss, Johnson v. Terry, No. 1:18-cv01899-AT (June 24, 2021) ....................... App-189
Appendix F
Relevant Constitutional Provisions
U.S. Const. amend. V ........................ App-221
U.S. Const. amend. VIII ................... App-221
App-1
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________
No. 23-11394
________________
LAQUAN JOHNSON,
Plaintiff-Appellant,
v.
ELAINE TERRY, OFFICER BURGESS,
DR. MARTIN, DR. WINSTON, MS. GARCIA, et al.,
Defendants-Appellees,
DARLENE DREW, et al.,
Defendants.
________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cv-01899-AT
________________
[PUBLISH]
Filed October 3, 2024
Document No. 50
________________
[CORRECTED] OPINION
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
App-2
petition for rehearing before the panel. See 11th Cir.
R. 35, I.O.P. 2 (“A petition for rehearing 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
authority 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
F.3d 1335, 1337 (11th Cir. 2019). If he does file a
supplemental petition, the government may not file a
response unless the court requests 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 excessive force, by
failing to protect him from other inmates, and by being
deliberately indifferent to his serious medical needs.
App-3
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 officials. 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 action, 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 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 usually housed in separate units. In
mid-June 2016, while Johnson was still a pretrial
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).
App-4
detainee, an inmate he knew as “Phillip” moved into
his cell in the pretrial unit. Phillip was not a pretrial
detainee; instead, he was being confined because he
had been convicted. Johnson 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
complained 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. 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, instructed 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
App-5
was seen by a nurse practitioner, 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 Darlene 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 attacked Johnson (the second attack). (At this
point, Johnson had been convicted and was no longer
a pretrial detainee.) Bush injured Johnson’s right
hand during the attack. Johnson went to health
services a couple of days later and was seen by a nurse
practitioner. 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
contacted 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 assessment.
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
App-6
with the healing 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
chewing 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.
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 severe 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. Winston gave
Johnson a tetanus shot and took some x-rays. The
radiologist’s report determined that the x-ray showed
no acute fracture or “joint space malalignment,” and
that no “foreign body” remained in Johnson’s foot. Dr.
App-7
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 doctor 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 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
federal prisons, the BOP uses a four-level
administrative remedy program. 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
confinement.” 28 C.F.R. § 542.10(a); see also Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (“[The
administrative remedy program] provides [a] means
through which allegedly unconstitutional 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 individual institutions. See 28 C.F.R.
App-8
§ 542.13(a). To begin this process, a prisoner may
present his complaint to prison staff on a grievance
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. § 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 Johnson had filled it
out. He swore in an affidavit that when he was
eventually able to obtain and file grievance forms, he
did not receive any response. Johnson also testified
that “if you get no response 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 grievances; (2) failing to
return the responses to his grievances so that if
Johnson appealed, he would not know why the
App-9
grievance was initially denied; or (3) waiting until his
appeal deadline had passed before sending him
rejection notices, which would result in his appeals
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 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 program 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 summary 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 judgment,
App-10
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 employees 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 injured person to sue for money damages
claiming that a state official 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 violation of the Fourth
Amendment. See 403 U.S. at 397. The Court concluded
that it had the authority to do so because “where
federally 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 omitted).
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 Amendment for sex
discrimination after he fired his secretary because she
was a woman; another was against federal prison
App-11
officials under the Eighth Amendment for failing to
treat an inmate’s asthma, resulting 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 constitutional violations.”
Malesko, 534 U.S. at 70. But there the Supreme
Court’s creative decision-making that had birthed the
Bivens doctrine stopped.
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 military
personnel against their superior officers); United
States v. Stanley, 483 U.S. 669, 684 (1987) (“We hold
that no Bivens remedy is available 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 Social 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
App-12
action against “[o]fficials of the Bureau of Land
Management . . . accused of harassment and
intimidation aimed at extracting an easement across
private property”); Hui v. Castaneda, 559 U.S. 799,
801–02 (2010) (disallowing 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); Ziglar, 582 U.S. at 125, 146 (declining
to extend Bivens to conditions-of-confinement claim
against group of executive officials); Hernandez 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 Amendment
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 judicially 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-ofpowers 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
App-13
instances . . . the Legislature is in the better position
to consider if the public interest would be served by
imposing a new substantive 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” creating a cause of action, it “arrogate[s] legislative
power”) (alteration accepted) (quotation marks
omitted).
Creating causes of action involves complex policy
considerations,
including
“economic
and
governmental concerns, administrative costs, and the
impact on governmental operations systemwide.”
Egbert, 596 U.S at 491 (quotation marks omitted). The
ability of courts to weigh those considerations is “at
best, uncertain.” Id. Thus “recognizing a cause of
action under Bivens” outside 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 ivorybilled 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-woodpecker. In 2021 the Fish and Wildlife Service, which is in charge
of such determinations, proposed declaring that the big
woodpecker is extinct. See Endangered and Threatened Wildlife
and Plants; Removal of 23 Extinct Species from the Lists of
App-14
Remarkably, the Supreme Court has even “gone
so far as to observe that if ‘the Court’s three Bivens
cases had been decided today,’ 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 (concurring opinion of
Scalia, J., joined by Thomas, J.) (“Bivens is a relic of
the heady days in which this Court assumed commonEndangered 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 Service pulled back from that proposal and extended the
period for public comment, recognizing “substantial
disagreement among experts regarding the status 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/202207/service-announces-6-month-extension-final-decision-ivorybilled1-woodpecker. More recently, a research team, after
searching over a period of several years in the dense bottomland
forests of Louisiana, reported evidence that three of the ivorybills (as ornithologists call them) still exist. Steven C. Latta et al.,
Multiple lines of evidence suggest the persistence of the Ivorybilled 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.
App-15
law powers 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 (“[T]o decide the case before us, we need
not reconsider Bivens itself.”). But it has also been
clear that when courts are thinking about recognizing
a new Bivens claim, the “watchword” is “caution” –– 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 consistently refused to extend
Bivens liability to any new context or new category of
defendants.”); see also id. at 74 (“The caution toward
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,
App-16
undermined its foundation, and limited its
precedential value. It is time to correct this Court’s
error and abandon the doctrine altogether.”).
Taking to heart what the Supreme Court has done
to limit Bivens’ precedential value and drastically
restrict its reach, we recently refused to extend Bivens
to a Fourth Amendment excessive force claim against
United States Marshals and county police officers
conducting a joint state and federal task force to
apprehend fugitives. 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. Velez,
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 “expanding 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 remedies.”); Cantú v. Moody, 933 F.3d 414,
421–22 (5th Cir. 2019) (explaining that the Court has
App-17
“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 Prisons, 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 Constitution, ‘the answer most often
will be Congress.’”) (alteration 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 constitutional
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) (“Essentially . . . future extensions of
Bivens are dead on arrival.”) (quotation 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
disfavored judicial activity” that requires “caution
App-18
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.
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 rejected the “wiggle
room” the Fields majority “purport[ed] to detect” 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
completely”). 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 (Gorsuch, J., concurring in the judgment)
(urging the Court to overrule Bivens and “forthrightly
App-19
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
three cases in which the Court has implied a damages
action.’” Robinson, 102 F.4th at 1342 (quoting Egbert,
592 U.S. at 492). The question is not a superficial one;
for a case to arise in a previously recognized 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 official action;
the extent of judicial guidance as to how an
officer should respond to the problem or
emergency 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 potential special
App-20
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 special 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 specialfactors analysis “are separation-of-powers principles.”
Hernandez, 589 U.S. at 102 (quotation 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 generality,” and it “does not invite federal
courts to independently assess 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 reason to think that judicial intrusion into
a given field might be harmful 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 remedy) (cleaned up); Robinson, 102 F.4th at
App-21
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
omitted).
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 protect claim, and his deliberate
indifference to serious medical needs claims.
But the first of those claims is not properly before
us. Johnson 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
instance by devoting a discrete section of his argument
to those claims”) (quotation marks omitted). 3 That
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 excessive 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 defendants asserted in
their response brief that Johnson had abandoned the excessive
force claim by not raising it, he did not address that claim or the
abandonment 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
App-22
leaves his failure to protect claim and his deliberate
indifference to serious medical needs claims. 4
In his complaint, Johnson asserted that those two
sets of claims were being brought under the “Fifth
and/or Eighth Amendments.” When Johnson was
attacked by Phillip in June 2016, he was a pretrial
detainee. As a result, his failure to protect and
deliberate 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 corrections counselor, and Warden Drew. He alleges
that he informed the two of them that he was being
(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 district court’s dismissal of his deliberate indifference claims
because his objections to the magistrate judge’s findings and his
briefing of the issue to us are 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.
App-23
housed with convicted inmates in violation of BOP
policy, but they did nothing to correct the situation,
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 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 injury to his hand; (3) Winston and
Martin’s treatment of his jaw injury 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 contexts. Then we will discuss why
special factors counsel against recognizing 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 different 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.
5 Johnson himself was a convicted inmate when the last two
attacks occurred.
App-24
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 under the Constitution itself.” 582 U.S. at 131
(emphasis added). That those three cases are the only
ones in which the Court had approved of a Bivens
remedy as of 2017 means that it did not approve of one
in Farmer, which was decided in 1994. If the Court
had actually 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
decisions. 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 (quotation 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 additional causes
of action under the Constitution.”); Minneci, 565 U.S.
at 124 (“Since Carlson, the Court has had to decide in
several different instances whether to imply a Bivens
action. And in each instance 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, Egbert, Minneci, and
App-25
Malesko opinions rules out Farmer as a Bivens
decision. 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).
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.”
Agostini v. Felton, 521 U.S. 203, 237 (1997). The Court
has declared generally that when a later case suggests
that an earlier holding is no longer applicable, we
“should follow the case which directly controls, 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
insurmountable 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
App-26
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 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. 927247). And it was not mentioned in the opinion 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 absent from the Farmer case as
it could have been.
App-27
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
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 previous 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); Edelman 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] argument”); 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] alluded 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
App-28
holdings: “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.” 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 holdings. 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) (quotation marks
omitted).
Farmer is not the only occasion on which the
Supreme Court has assumed for purposes of
argument, either explicitly, or implicitly 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 Amendment 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 qualified
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
App-29
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 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 created 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 recognized 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 Supreme 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 proceed, it never addressed whether the
claim was properly a Bivens claim.”); Sargeant, 87
F.4th at 365 (holding that Farmer did not create a
Bivens remedy because “[t]he Court never held — just
assumed — 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
App-30
jurisprudence squarely forecloses [the plaintiff]’s
argument that Farmer established a cognizable
Bivens context.”). We agree with the Third, Fourth,
Seventh, and Ninth 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 firststage issue involving the deliberate indifference
claims. Doing so will enable us to address the secondstage issue involving both categories of claims
together.
6 Johnson also argues that our opinion in Caldwell v. Warden,
FCI Talladega, 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 decisions that count in step one
of the Bivens analysis are the three that the Supreme 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 recognized 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.
App-31
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.
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 alleged 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 attention for some eight hours after
he had an asthma attack, administered
contra-indicated drugs which made his attack
more severe, attempted to use a respirator
known to be inoperative which further
impeded 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 cognizable
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
App-32
Ziglar, 582 U.S. 120, for guidance. In Ziglar, the Court
analyzed whether six prisoners’ claim that a warden
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 instances of
abuse constituted excessive force and were “serious
violations of Bureau of Prisons policy.” Id. at 147.
After acknowledging that the claim in Ziglar
“ha[d] significant parallels to . . . Carlson,” the Court
held that recognizing the prisoners’ Fifth Amendment
claim would still constitute an extension 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 officials 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 remedies” 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.
App-33
As the Supreme Court did with the claim in
Ziglar, we acknowledge that Johnson’s deliberate
indifference to serious medical 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 context. First, Johnson’s claim based on
the medical care he received after being attacked by
Phillip is predicated on a different constitutional right
than the one in Carlson (Fifth Amendment instead 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 alternative remedies
under the current alternative remedy analysis. See
Ziglar, 582 U.S. at 148 (“This case also has certain
App-34
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. at 140).
In Carlson, the Court asked whether there were
“alternative remed[ies] which [Congress] explicitly
declared to be a substitute 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 Congress 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 (distinguishing 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 justify a Bivens
extension based on ‘parallel circumstances’ with
Bivens, [Davis], or Carlson unless he also satisfies the
‘analytic framework’ prescribed by the last four
App-35
decades of intervening case law”) (quoting 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 administrative
remedy program. See infra at 37–43; Malesko, 534
U.S. at 74 (explaining that the BOP administrative
remedy program is a “means through which allegedly
unconstitutional actions and policies 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 Carlson 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 defendants. 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 indifference 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
App-36
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).
We look at whether the two cases have any
relevant differences, not whether they are mostly the
same. As the Court decided in Ziglar, “[i]f the case is
different in a meaningful way from previous 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
constitutional 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
different from those of the plaintiff in Carlson. Those
differences make this a new context under the firststage inquiry.
C. Special factors argue against
extending Bivens to this new context
Because Johnson’s failure to protect and his
deliberate indifference to serious medical needs claims
arise in a new context, the next step –– stage two –– is
determining whether there are any special 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
App-37
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 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 realized by another means,
Egbert, 596 U.S. at 498. Courts are not to “secondguess 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
remedy program was an appropriate alternative
remedy to a Bivens claim). It’s not our place to “secondguess 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
App-38
prevent constitutional violations from recurring.”
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 otherwise go unredressed . . . .”) (quotation
marks omitted); see also id. 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 administrative remedy program adequately
addressed Johnson’s complaints. 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 satisfactorily 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
App-39
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, explaining 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 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 grievances, including those involving
alleged constitutional violations. See 28 C.F.R.
§ 542.10(a) (“The purpose of the Administrative
Remedy Program is to allow an inmate to seek formal
review of an issue relating to any aspect of his/her own
App-40
confinement.”); see also Malesko, 534 U.S. at 74. In
doing so, Congress through the Executive Branch
found that remedial process to be appropriate and
adequate. 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.
at 497–98. Although Johnson believes he was, in
essence, not allowed to access the grievance procedure,
that is not enough to disqualify 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 advantage of the relevant grievance
procedure, those decisions establish that an alternative remedial
process cannot be a relevant special factor unless it is actually
available to the plaintiff himself. See Hernandez, 589 U.S. at
104–06 (explaining 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
App-41
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 alternative remedial structure.
If there are alternative remedial structures in
place, that alone, like any special factor, is
reason enough to limit the power of the
Judiciary 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 otherwise 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 political branches, is better
equipped to decide whether existing remedies
should be augmented by the creation of a new
reasoned, and carefully articulated analysis by the Supreme
Court . . . .” Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir.
2006); see also Peterson 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.”).
App-42
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 omitted).
As we have noted, Congress already has provided,
or has authorized the Executive to provide, an
alternative remedial structure in the form of a
grievance procedure for use by federal prison 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 Supreme 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 (quotation
marks omitted). We cannot extend Bivens here
because doing so would “arrogate legislative power”
and allow federal prisoners to bypass the grievance
process put in place by Congress through the
Executive Branch. See Egbert, 596 U.S. at 492
(alteration 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.
App-43
Appendix B
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________
No. 23-11394
________________
LAQUAN JOHNSON,
Plaintiff-Appellant,
v.
ELAINE TERRY, OFFICER BURGESS,
DR. MARTIN, DR. WINSTON, MS. GARCIA, et al.,
Defendants-Appellees,
DARLENE DREW, et al.,
Defendants.
________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cv-01899-AT
________________
[PUBLISH]
Filed August 12, 2024
Document No. 43
________________
[VACATED] OPINION
Before BRANCH, GRANT, and ED CARNES, Circuit
Judges.
ED CARNES, Circuit Judge:
LaQuan Johnson is a federal prisoner who filed a
complaint asserting claims under Bivens v. Six
App-44
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 excessive force, by
failing to protect him from other inmates, and by being
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 officials. 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 action, 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 USP-Atlanta, from
September 2015 to April 2019. He was a pretrial
detainee until he was tried and convicted on April 14,
2017. 1
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
App-45
According to USP-Atlanta’s policy while Johnson
was housed there, pretrial detainees and convicted
inmates were usually 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; instead, he was being confined because he
had been convicted. Johnson 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
complained 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. 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,
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).
App-46
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, instructed 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 practitioner, 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 Darlene 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 attacked Johnson (the second attack). (At this
point, Johnson had been convicted and was no longer
a pretrial detainee.) Bush injured Johnson’s right
hand during the attack. Johnson went to health
services a couple of days later and was seen by a nurse
practitioner. 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
contacted to come check on him, but none of the
doctors on staff ever spoke to Johnson about his injury.
App-47
Dr. Winston reviewed the nurse practitioner’s notes
from the encounter and signed off on the assessment.
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 healing 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
chewing 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.
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 severe 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
App-48
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. Winston gave
Johnson a tetanus shot and took some x-rays. The
radiologist’s report determined that the x-ray showed
no acute fracture or “joint space malalignment,” and
that no “foreign body” remained 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 doctor 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 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
federal prisons, the BOP uses a four-level
administrative remedy program. The purpose of the
App-49
program “is to allow an inmate to seek formal review
of an issue relating to any aspect of his/her own
confinement.” 28 C.F.R. § 542.10(a); see also Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (“[The
administrative remedy program] provides [a] means
through which allegedly unconstitutional 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 individual institutions. See 28 C.F.R.
§ 542.13(a). To begin this process, a prisoner may
present his complaint to prison staff on a grievance
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. § 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 Johnson had filled it
out. He swore in an affidavit that when he was
eventually able to obtain and file grievance forms, he
did not receive any response. Johnson also testified
App-50
that “if you get no response 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 grievances; (2) failing to
return the responses to his grievances so that if
Johnson appealed, he would not know why the
grievance was initially denied; or (3) waiting until his
appeal deadline had passed before sending him
rejection notices, which would result in his appeals
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 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 program at USP-Atlanta and
recommended that the court deny the motion to
dismiss. Over the defendants’ objections, the court
App-51
adopted that report and recommendation and denied
the motion.
After additional discovery the defendants moved
for summary 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 judgment,
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 employees 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 injured person to sue for money damages
claiming that a state official 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 violation of the Fourth
Amendment. See 403 U.S. at 397. The Court concluded
App-52
that it had the authority to do so because “where
federally 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 omitted).
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 Amendment 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, resulting 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 constitutional violations.”
Malesko, 534 U.S. at 70. But there the Supreme
Court’s creative decision-making that had birthed the
Bivens doctrine stopped.
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 military
personnel against their superior officers); United
States v. Stanley, 483 U.S. 669, 684 (1987) (“We hold
that no Bivens remedy is available for injuries that
App-53
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 Social 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]fficials of the Bureau of Land
Management . . . accused of harassment and
intimidation aimed at extracting an easement across
private property”); Hui v. Castaneda, 559 U.S. 799,
801–02 (2010) (disallowing 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); Ziglar, 582 U.S. at 125, 146 (declining
to extend Bivens to conditions-of-confinement claim
against group of executive officials); Hernandez 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 Amendment
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
App-54
Carlson results from its having “come to appreciate
more fully the tension between judicially 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-ofpowers 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 consider if the public interest would be served by
imposing a new substantive 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” creating a cause of action, it “arrogate[s] legislative
power”) (alteration accepted) (quotation marks
omitted).
Creating causes of action involves complex policy
considerations,
including
“economic
and
governmental concerns, administrative costs, and the
impact on governmental operations systemwide.”
Egbert, 596 U.S at 491 (quotation marks omitted). The
ability of courts to weigh those considerations is “at
best, uncertain.” Id. Thus “recognizing a cause of
action under Bivens” outside 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
App-55
“most unusual circumstances” are as rare as the ivorybilled woodpecker. 2
Remarkably, the Supreme Court has even “gone
so far as to observe that if ‘the Court’s three Bivens
cases had been decided today,’ it is doubtful that we
would have reached the same result.” Hernandez, 589
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-woodpecker. In 2021 the Fish and Wildlife Service, which is in charge
of such determinations, proposed declaring that the big
woodpecker is extinct. See Endangered 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 Service pulled back from that proposal and extended the
period for public comment, recognizing “substantial
disagreement among experts regarding the status 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/202207/service-announces-6-month-extension-final-decision-ivorybilled-woodpecker. More recently, a research team, after
searching over a period of several years in the dense bottomland
forests of Louisiana, reported evidence that three of the ivorybills (as ornithologists call them) still exist. Steven C. Latta et al.,
Multiple lines of evidence suggest the persistence of the Ivorybilled 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.
App-56
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 (concurring opinion of
Scalia, J., joined by Thomas, J.) (“Bivens is a relic of
the heady days in which this Court assumed commonlaw powers 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 (“[T]o decide the case before us, we need
not reconsider Bivens itself.”). But it has also been
clear that when courts are thinking about recognizing
a new Bivens claim, the “watchword” is “caution” –– 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 consistently refused to extend
Bivens liability to any new context or new category of
defendants.”); see also id. at 74 (“The caution toward
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).
App-57
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,
undermined its foundation, and limited its
precedential value. It is time to correct this Court’s
error and abandon the doctrine altogether.”).
Taking to heart what the Supreme Court has done
to limit Bivens’ precedential value and drastically
restrict its reach, we recently refused to extend Bivens
to a Fourth Amendment excessive force claim against
United States Marshals and county police officers
conducting a joint state and federal task force to
apprehend fugitives. 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. Velez,
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
App-58
category of defendants” and that “expanding 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 remedies.”); Cantú v. Moody, 933 F.3d 414,
421–22 (5th Cir. 2019) (explaining 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 Prisons, 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 Constitution, ‘the answer most often
will be Congress.’”) (alteration 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 constitutional
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) (“Essentially . . . future extensions of
Bivens are dead on arrival.”) (quotation marks
omitted); Silva v. United States, 45 F.4th 1134, 1136
App-59
(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
disfavored 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.
Meanwhile, rarity doesn’t foreclose false
sightings. See Fields v. Fed. Bureau of Prisons, No. 236246, 2024 WL 3529034 (4th Cir. July 25, 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 *1. A vigorous and cogent
dissent rejected the “wiggle room” the Fields majority
“purport[ed] to detect” in the Supreme Court’s
repeated warnings that courts should not extend
Bivens. Id. at *9 (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
App-60
*14 (Richardson, J., dissenting) (predicting it may
encourage the Court to finally “shut the Bivens door
completely”). 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 (Gorsuch, 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
three cases in which the Court has implied a damages
action.’” Robinson, 102 F.4th at 1342 (quoting Egbert,
592 U.S. at 492). The question is not a superficial one;
for a case to arise in a previously recognized 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
App-61
generality or specificity of the official action;
the extent of judicial guidance as to how an
officer should respond to the problem or
emergency 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 potential 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 special 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 specialfactors analysis “are separation-of-powers principles.”
Hernandez, 589 U.S. at 102 (quotation 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 generality,” and it “does not invite federal
courts to independently assess 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 reason to think that judicial intrusion into
a given field might be harmful or inappropriate.” Id.
App-62
(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 remedy) (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
omitted).
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 protect claim, and his deliberate
indifference to serious medical needs claims.
But the first of those claims is not properly before
us. Johnson 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
instance by devoting a discrete section of his argument
to those claims”) (quotation marks omitted). 3 That
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
App-63
leaves his failure to protect claim and his deliberate
indifference to serious medical needs claims. 4
In his complaint, Johnson asserted that those two
sets of claims were being brought under the “Fifth
and/or Eighth Amendments.” Actually, those claims
arise, if at all, under the Eighth and Fourteenth
Amendments. When Johnson was attacked by Phillip
in June 2016, he was a pretrial detainee. As a result,
his failure to protect and deliberate indifference
claims stemming from that incident arise under the
Due Process Clause of the Fourteenth Amendment.
See Goodman v. Kimbrough, 718 F.3d 1325, 1331 n.1
(11th Cir. 2013). The factual predicates for the
and only referred to his “claims.” Other than that general
reference, the excessive 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 defendants asserted in
their response brief that Johnson had abandoned the excessive
force claim by not raising it, he did not address that claim or the
abandonment 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 district court’s dismissal of his deliberate indifference claims
because his objections to the magistrate judge’s findings and his
briefing of the issue to us are 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.
App-64
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 corrections 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 situation,
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 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 injury to his hand; (3) Winston and
Martin’s treatment of his jaw injury 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 contexts. Then we will discuss why
special factors counsel against recognizing either set
of claims here.
5 Johnson himself was a convicted inmate when the last two
attacks occurred.
App-65
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 different 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 under the Constitution itself.” 582 U.S. at 131
(emphasis added). That those three cases are the only
ones in which the Court had approved of a Bivens
remedy as of 2017 means that it did not approve of one
in Farmer, which was decided in 1994. If the Court
had actually 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
decisions. 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 (quotation 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 additional causes
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of action under the Constitution.”); Minneci, 565 U.S.
at 124 (“Since Carlson, the Court has had to decide in
several different instances whether to imply a Bivens
action. And in each instance 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, Egbert, Minneci, and
Malesko opinions rules out Farmer as a Bivens
decision. 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).
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.”
Agostini v. Felton, 521 U.S. 203, 237 (1997). The Court
has declared generally that when a later case suggests
that an earlier holding is no longer applicable, we
“should follow the case which directly controls, 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.
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That argument might be successful but for the
insurmountable 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 27–28.
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 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),
App-68
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. 927247). And it was not mentioned in the opinion 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 absent 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
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 previous 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); Edelman 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] argument”); 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
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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] alluded 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 assuming without
deciding the validity of antecedent propositions, and
such assumptions . . . are not binding in future cases
that directly 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 holdings. 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) (quotation marks
omitted).
Farmer is not the only occasion on which the
Supreme Court has assumed for purposes of
argument, either explicitly, or implicitly 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 Amendment claim
but holding that the officers were entitled to qualified
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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 qualified
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 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.
Most of our sister circuits that have addressed
whether Farmer created or recognized an implied
Bivens remedy in that context have determined that it
did not. See Tate v. Harmon, 54 F.4th 839, 847 (4th
Cir. 2022) (“[W]hile the Court allowed the action [in
Farmer] to proceed, it never addressed whether the
claim was properly a Bivens claim.”); Sargeant, 87
F.4th at 365 (holding that Farmer did not create a
Bivens remedy because “[t]he Court never held — just
assumed — 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
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jurisprudence squarely forecloses [the plaintiff]’s
argument that Farmer established a cognizable
Bivens context.”); but see Bistrian v. Levi, 912 F.3d 79,
91 (3d Cir. 2018) (relying on Farmer to find failure to
protect claim did not present a new context). We agree
with the Fourth, Seventh, and Ninth Circuits’
holdings that Farmer did not create a Bivens remedy
and thus cannot serve as a comparator case in the new
context inquiry; we disagree with the Third Circuit’s
holding that it did and can. 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 firststage issue involving the deliberate indifference
claims. Doing so will enable us to address the secondstage issue involving both categories of claims
together.
6 Johnson also argues that our opinion in Caldwell v. Warden,
FCI Talladega, 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 decisions that count in step one
of the Bivens analysis are the three that the Supreme Court has
explicitly listed as counting. See supra at 24–25.
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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.
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 alleged 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 attention for some eight hours after
he had an asthma attack, administered
contra-indicated drugs which made his attack
more severe, attempted to use a respirator
known to be inoperative which further
impeded 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 cognizable
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
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Ziglar, 582 U.S. 120, for guidance. In Ziglar, the Court
analyzed whether six prisoners’ claim that a warden
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 instances of
abuse constituted excessive force and were “serious
violations of Bureau of Prisons policy.” Id. at 147.
After acknowledging that the claim in Ziglar
“ha[d] significant parallels to . . . Carlson,” the Court
held that recognizing the prisoners’ Fifth Amendment
claim would still constitute an extension 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
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