Opposition Brief — Brij Mohan, et al., Petitioners v. Jordan Watkins

No. 25-952________

IN THE

Supreme Court of the United States

___________

BRIJ MOHAN, ET AL.,

Petitioners,

v.

JORDAN WATKINS,

Respondent.

_____________

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the

Seventh Circuit

_____________

BRIEF IN OPPOSITION

_____________

Samuel Weiss

RIGHTS BEHIND BARS

1800 M Street N.W. FNT 1

#33821

Washington, DC 20033

David M. Zionts

Kendall T. Burchard

Counsel of Record

Christine Houle

Maya M. Sharp

COVINGTON & BURLING LLP

850 Tenth Street, NW

Washington, DC 20001

kburchard@cov.com

(202) 662-6000

Counsel for Respondent

Jordan Watkins

i

QUESTION PRESENTED

Whether the cause of action this Court recognized

in Carlson v. Green, 446 U.S. 14 (1980) for deliberate

indifference to a prisoner’s serious medical needs in

violation of the Eighth Amendment continues to exist

for a prisoner whose complaints of excruciating pain

and severe swelling after hernia repair surgery were

ignored by the federal officials responsible for his care.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ........................................................1

STATEMENT ..............................................................4

A. Legal Background .............................................4

B. Factual Background .........................................6

REASONS FOR DENYING THE PETITION ............9

I. Petitioners Identify No Concrete Circuit

Conflict Warranting This Court’s Review. ............9

A. There Is No Circuit Split Over Whether

Carlson Draws a Distinction for

Deliberate Indifference to “Chronic”

Versus “Acute” Medical Needs. ......................10

B. Review Is Not Warranted to Correct a

Different Circuit’s Outlier Decision

Nullifying Carlson. .........................................15

II. The Decision Below Is Correct. ...........................19

A. This Case Arises in the Same Context

as Carlson. ......................................................19

B. Stare Decisis Counsels Against

Overruling Carlson—or Doing the

Equivalent by Declaring It “Moribund”

on the Day It Was Decided. ............................27

III.Neither This Case nor Watanabe Are

Worthy of Certiorari. ...........................................31

CONCLUSION ..........................................................35

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics,

403 U.S. 388 (1971) ............................................. 4

Box v. Planned Parenthood of Ind. & Ky., Inc.,

139 S. Ct. 1780 (2019) ....................................... 19

Brooks v. Richardson,

131 F.4th 613 (7th Cir. 2025) ............... 11, 16, 29

Bulger v. Hurwitz,

62 F.4th 127 (4th Cir. 2023) ............................. 27

Calvert v. Texas,

141 S. Ct. 1605 (2021) ....................................... 19

Carlson v. Green,

446 U.S. 14 (1980) ... 1, 4, 8, 22, 23, 25, 26, 28, 31

Carlucci v. Chapa,

884 F.3d 534 (5th Cir. 2018) ............................. 13

Carrin v. Smiledge,

773 F. Supp. 3d 1284 (N.D. Fla. 2025) ............. 32

Corr. Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ......................................... 5, 28

Cutter v. Wilkinson,

544 U.S. 709 (2005) ..................................... 29, 34

iv

Davis v. Passman,

442 U.S. 228 (1979) ............................................. 4

Edwards v. Vannoy,

593 U.S. 255 (2021) ..................................... 30, 31

Egbert v. Boule,

596 U.S. 482 (2022) ..... 5, 6, 12, 17, 20, 25, 26, 31

Goldey v. Fields,

606 U.S. 942 (2025) ................... 1, 3, 5, 23, 31, 32

Green v. Carlson,

581 F.2d 669 (7th Cir. 1978) ............................. 22

Hernandez v. Mesa,

589 U.S. 93 (2020) ............................. 5, 17, 20, 24

Hui v. Castaneda,

559 U.S. 799 (2010) ........................................... 28

Johnson v. Terry,

119 F.4th 840 (11th Cir. 2024) ... 2, 14, 15, 18, 31

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015) ........................................... 28

Kyles v. Whitley,

514 U.S. 419 (1995) ........................................... 32

Langford v. Joyner,

62 F.4th 122 (4th Cir. 2023) ............................. 13

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ..................................... 18, 28

v

Masias v. Hodges,

No. 21-6591, 2023 WL 2610230

(4th Cir. Mar. 23, 2023) .................................... 12

Michigan v. Bay Mills Indian Cmty.,

572 U.S. 782 (2014) ..................................... 28, 29

Muniz v. United States,

149 F.4th 256 (3d Cir. 2025) ....................... 12, 17

Nat’l Football League v. Ninth Inning, Inc.,

141 S. Ct. 56 (2020) ........................................... 33

Porter v. Nussle,

534 U.S. 516 (2002) ........................................... 27

Ramos v. Louisiana,

590 U.S. 83 (2020) ............................................. 29

Rowland v. Matevousian,

121 F.4th 1237 (10th Cir. 2024) ................. 14, 17

Seattle’s Union Gospel Mission v. Woods,

142 S. Ct. 1094 (2022) ....................................... 33

Shalala v. Ill. Council on

Long Term Care, Inc.,

529 U.S. 1 (2000) ............................................... 28

Snowden v. Henning,

72 F.4th 237 (7th Cir. 2023) ......................... 8, 20

Spivey v. Breckon,

173 F.4th 174 (4th Cir. 2026) ............... 12, 16, 27

Stanard v. Dy,

88 F.4th 811 (9th Cir. 2023) ................. 20, 25, 29

vi

Teague v. Lane,

489 U.S. 288 (1989) ..................................... 30, 31

Texas v. Mead,

465 U.S. 1041 (1984) ......................................... 32

United States v. Williams,

504 U.S. 36 (1992) ............................................. 34

Vaughn v. Bassett,

No. 22-10962, 2024 WL 2891897

(5th Cir. June 10, 2024) .............................. 13, 16

Waltermeyer v. Hazelwood,

136 F.4th 361 (1st Cir. 2025) ................ 13, 14, 17

Watanabe v. Derr,

115 F.4th 1034 (9th Cir. 2024) ................... 12, 16

Ziglar v. Abbasi,

582 U.S. 120 (2017) ........................ 5, 6, 17, 20, 22,

23, 24, 26, 27

Statutes

28 U.S.C.

§ 1915A .............................................................. 30

§ 2679(b)(2)(A) ................................................... 28

42 U.S.C.

§ 1983................................................................. 29

§ 1997e ......................................................... 21, 27

vii

Regulatory Materials

28 C.F.R.

§ 542.10 ............................................................... 2

§ 542.11 ............................................................... 2

§ 542.12 ............................................................... 2

§ 542.13 ......................................................... 2, 16

§ 542.14 ............................................................... 2

§ 542.15 ............................................................... 2

§ 542.16 ............................................................... 2

§ 542.17 ............................................................... 2

§ 542.18 ............................................................... 2

§ 542.19 ............................................................... 2

44 Fed. Reg. 62,250 (Oct. 29, 1979) ....................... 24

61 Fed. Reg. 88 (Jan. 2, 1996) ................................ 16

Other Authorities

Alexander A. Reinert, Measuring the

Success of Bivens Litigation and Its

Consequences for the Individual Liability

Model, 62 Stan. L. Rev. 809 (2010) .................. 30

Margo Schlanger, Prison and Jail Civil

Rights/Conditions Cases: Longitudinal

Statistics, 1970-2021 (2021).............................. 29

1

INTRODUCTION

This Court has repeatedly reaffirmed that federal

prisoners may pursue a damages remedy against officials who are deliberately indifferent to their serious

medical needs in violation of the Eighth Amendment.

See Carlson v. Green, 446 U.S. 14, 20−22 (1980);

Goldey v. Fields, 606 U.S. 942, 944 (2025). Jordan

Watkins brought an unexceptional version of precisely such a claim. After hernia repair surgery,

Watkins complained to prison officials of acute excruciating pain and severe swelling, with his testicles

“swell[ing] to the size of a grapefruit.” Pet. App. 3a.

Those officials—including Petitioner Dr. Brij Mohan—ignored his complaints, gave him ineffective

medication, and denied his requests for follow-up

care. Once transferred to another correctional facility,

Watkins required additional surgery to address his

debilitating pain.

The Seventh Circuit correctly held that Watkins’s

Eighth Amendment claims arise in the same context

as Carlson. Like the Carlson plaintiff, Watkins alleged that federal prison officials violated his Eighth

Amendment right not to suffer from deliberate indifference to his serious medical needs. Pet. App. 2a, 8a.

Because there were no meaningful differences between Watkins’s case and Carlson, the court reversed

the district court’s threshold dismissal and remanded

for further proceedings.

Nothing about this run-of-the-mill Carlson case

warrants review. Petitioners are unable to clearly

and concretely define any circuit split worthy of this

Court’s intervention. Instead, they gesture vaguely at

supposed “conflicting decisions reflecting a wide range

of views about Carlson’s scope and continuing vitality.” Pet. 18. To the extent Petitioners can be pinned

2

down as to what the supposed conflict is, the two they

seem to land on do not present circuit splits warranting this Court’s attention.

The first purported conflict—over whether Carlson

covers “chronic” versus “acute” conditions—has a host

of problems. For one, that question is not actually presented: Watkins alleges deliberate indifference to

acute suffering, not a chronic condition. For another,

Petitioners fail to identify a single court of appeals

that has adopted a bright-line rule that claims of deliberate indifference to “chronic” medical issues arise

in a meaningfully different context from Carlson. The

cases simply reflect that courts are properly identifying and applying this Court’s modern, fact-specific

Bivens analysis, and reaching different conclusions

based on different factual settings. Petitioners may

quibble with how one court or another has applied settled principles, but that is not the same as doctrinal

confusion warranting this Court’s intervention.

The second alleged conflict boils down to an outlier

decision in which the Eleventh Circuit suggested that

any claim brought in a world where there is a Bureau

of Prisons Administrative Remedy Program (ARP), see

28 C.F.R. §§ 542.10−19, arises in a new context to

which Carlson should not be “extended.” Johnson v.

Terry, 119 F.4th 840, 852 (11th Cir. 2024), cert. denied, 146 S. Ct. 101 (2025). That would be a peculiar

conclusion, because as Petitioners concede (at 12),

Carlson itself was decided in a world where the ARP

already existed. For now, the Eleventh Circuit has

taken the liberty of declaring a decision of this Court

wrong on the day it was decided, but it is far from clear

that the court will adhere to that view. Subsequent to

the Eleventh Circuit’s decision in Johnson, this Court

reaffirmed that Carlson remains good law and that

3

“[t]he existence of . . . alternative remedial procedures” is a factor to be considered at step two of the

analysis for claims that do not fall within a recognized

cause of action. Goldey, 606 U.S. at 944−45; see also

Pet. 12. Granting certiorari here just to address the

Eleventh Circuit’s de facto overruling of Carlson is

particularly unwarranted in a case where no party appears willing to champion the Eleventh Circuit’s

cause. Rather than offer full-throated advocacy, Petitioners offer neutral color commentary, merely

observing that this Court “may well” agree with that

approach. Pet. 16 (cleaned up). Under these circumstances, it is far too premature to say whether the

Eleventh Circuit’s wayward ruling will eventually

warrant this Court’s intervention. If Petitioners are

right about the importance of the issue, there will be

no shortage of vehicles, and this Court can prudently

await a case arising from the (very) short side of the

asserted split.

The very structure of the petition betrays its lack

of merit. Petitioners frame the question presented as

an exceedingly fact-bound question—whether Carlson

permits a claim of “deliberate indifference to an inmate’s chronic pain after a surgery,” Pet. i. The first,

and longest, argument in the petition (at 7−18),

simply argues for error-correction, treating the purported circuit splits as an afterthought that do not

even neatly track Petitioners’ merits arguments. The

obvious reason for Petitioners’ unconventional approach to requesting review is that by conventional

standards, review is unwarranted.

The petition should be denied.

4

STATEMENT

A. Legal Background

In Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971), the

Court recognized a damages remedy against federal

officers who committed an unreasonable search and

seizure in violation of the Fourth Amendment. After

Bivens, the Court recognized two additional circumstances in which a plaintiff may recover damages

against federal officials for violations of their constitutional rights: federal employees alleging gender

discrimination in violation of the Fifth Amendment,

Davis v. Passman, 442 U.S. 228 (1979), and federal

prisoners alleging that federal prison officials were

deliberately indifferent to their serious medical needs

in violation of the Eighth Amendment, Carlson, 446

U.S. at 20−22.

In Carlson, the prisoner’s estate alleged that

prison officials failed to adequately treat the prisoner’s “serious[] . . . chronic asthmatic condition,”

which led to the prisoner’s death. 446 U.S. at 16 n.1.

Among other things, the Carlson plaintiff alleged that

prison officials kept the prisoner in the prison facility “against the advice of doctors, failed to give [the

prisoner] competent medical attention for some eight

hours after he had an asthmatic attack, administered

contra-indicated drugs which made his attack more

severe, attempted to use a respirator known to be inoperative,” and unduly delayed his transfer to a

hospital, in violation of the Eighth Amendment. Id.;

see also Pet. App. 12a−13a.

After recognizing a cause of action for deliberate

indifference claims in Carlson, the Court has “consistently refused to extend Bivens liability to any new

5

context.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61,

68 (2001). It has just as consistently declined to overrule Bivens, Davis, or Carlson, instead reaffirming

those decisions as “settled” and “fixed principle[s] of

law” within their respective spheres. Ziglar v. Abbasi,

582 U.S. 120, 134 (2017); see also, e.g., Egbert v. Boule,

596 U.S. 482, 490−91 (2022); Hernandez v. Mesa, 589

U.S. 93, 103 (2020).

Under the Court’s modern Bivens framework,

courts apply “a two-step test.” Goldey, 606 U.S. at

944.

First, a court asks “whether the case presents ‘a

new Bivens context’—that is, whether the case ‘is different in a meaningful way’ from the cases in which

this Court has recognized a Bivens remedy.” Id.

(quoting Ziglar, 582 U.S. at 139). This Court has provided an “instructive” set of examples of what

differences might be “meaningful” for purposes of establishing a new context, including differences in the

“rank of the officers involved,” “the constitutional

right at issue,” the “extent of judicial guidance as to

how an officer should respond to the problem,” and the

“statutory or other legal mandate under which the officer was operating.” Ziglar, 582 U.S. at 139–40. The

Court has cautioned, however, that “[s]ome differences . . . will be so trivial that they will not suffice to

create a new Bivens context.” Id. at 149.

Second, if—and only if—a case presents a “new

context,” a court will consider at step two “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.’” Goldey, 606 U.S. at 944 (quoting

Egbert, 596 U.S. at 492). Such factors include, but are

not limited to, whether there is an alternative

6

remedial scheme available, because such a remedial

scheme “may limit the power of the Judiciary to infer

a new Bivens cause of action.” Ziglar, 582 U.S. at 137,

148; see also Egbert, 596 U.S. at 493 (discussing alternative remedies at step two).

B. Factual Background

1. Watkins was detained at Metropolitan Correctional Center (MCC) in Chicago, Illinois from October

2018 to July 2019, first as a pretrial detainee and then

following conviction. Pet. App. 3a. On June 12, 2019,

Watkins underwent hernia repair surgery at a local

hospital. Pet. App. 3a. After returning to MCC, Watkins “immediately” complained of severe pain and

swelling in his groin, with his testicles swelling “to the

size of a grapefruit.” Pet. App. 3a. His pain and swelling became so severe that he could not sit or sleep.

Pet. App. 3a.

Immediately after surgery, Watkins informed

MCC medical staff, including Petitioner Mohan, of his

extreme post-operative pain and swelling. Pet. App.

3a. Petitioner Mohan and others dismissed Watkins’s

complaints as “routine and benign side effect[s] of the

hernia repair surgery.” Pet. App. 3a. MCC staff, including Petitioner Mohan, gave Watkins ineffective

pain medication and denied his requests to seek follow-up treatment from his surgeon. Pet. App. 3a.

Watkins was convicted on July 18, 2019. Pet. App.

3a. He continued to complain to MCC officials about

his extreme pain and swelling until he was transferred to a different federal facility on July 29, 2019.

Pet. App. 3a. Watkins later underwent corrective surgery to address the complications arising from his

initial hernia repair surgery. Pet. App. 3a–4a.

7

2. After timely exhausting his administrative

remedies under the ARP, Watkins filed suit pro se in

federal court. Pet. App. 4a. Watkins brought four

claims against Petitioner Mohan and unnamed MCC

medical and correctional staff seeking damages for deliberate indifference to his serious medical needs in

violation of the Eighth Amendment. Pet. App. 4a.

Watkins also brought one claim against the United

States for negligent medical treatment under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). Pet.

App. 4a.

The district court dismissed each of Watkins’s

claims. Pet. App. 70a−71a. Relevant here, the district

court reasoned that Watkins’s Eighth Amendment

claims presented factual and legal differences that

would require extending Bivens to a new context. Pet.

App. 66a.

3. The Seventh Circuit reversed. Pet. App. 36a.

The majority concluded that, “[u]nder a straightforward application of Carlson and the Supreme Court’s

current legal framework for evaluating Bivens

claims,” Watkins’s Eighth Amendment deliberate indifference claims could go forward. Pet. App. 2a. The

court expressly declined to address the viability of any

other Bivens claim. Pet. App. 10a–11a & n.3.

After recounting the history, precedent, and

framework informing today’s Bivens analysis, Pet.

App. 6a−7a, the court resolved the Eighth Amendment deliberate indifference claims “at step one of the

Bivens inquiry,” Pet. App. 7a. The Seventh Circuit

reasoned that Watkins’s claims “fit squarely within

the Bivens claim recognized by Carlson” because Watkins alleged that “federal prison officials violated his

Eighth Amendment right to be free from cruel and

8

unusual punishment by giving him constitutionally

inadequate care after his surgery.” Pet. App. 8a.

The court declined to find that Watkins’s Eighth

Amendment deliberate indifference claims were

“meaningfully different” from Carlson because they

were “no more disruptive or intrusive than what Carlson itself already approved.” Pet. App. 9a, 13a.

Relying on Carlson, Ziglar, and then-Chief Judge

Sykes’s decision for the Seventh Circuit in Snowden v.

Henning, 72 F.4th 237 (7th Cir. 2023), cert. denied,

145 S. Ct. 137 (2024), the court explained that factual

and legal differences are “meaningful” if they “alter

the policy balance that initially justified the implied

damages remedies in the Bivens trilogy.” Pet. App. 9a

(quoting Snowden, 72 F.4th at 239). Here, such differences were lacking because Watkins’s claims

involved officers of the same rank, the same constitutional right, the same “generality or specificity of the

official action,” and abundant judicial guidance. Pet.

App. 11a, 14a−16a. The court reasoned that, like the

Carlson plaintiff, Watkins challenged “discrete acts

and omissions of particular medical and correctional

personnel,” rather than “any broadly applicable BOP

policy.” Pet. App. 11a.

The court rejected Petitioner Mohan’s argument

below that Watkins’s “transitionary status” in a pretrial detention facility implicated any new “administrative considerations” beyond those addressed in

Carlson. Pet. App. 12a–13a; see also Pet. App. 16a.

As the court explained, “all federal detainees and prisoners are subject to transfer to different facilities at

any time for a host of reasons.” Pet. App. 11a−12a.

Indeed, as the Seventh Circuit observed, Carlson too

involved “allegations about prison assignment and

transfer.” Pet. App. 13a (citing Carlson, 446 U.S. at

9

16 n.1). For that reason, even if Watkins’s claims

could be read to “implicate administrative considerations regarding scheduling, outside consultation, or

prison assignment, that would not remove them from

Carlson’s ambit.” Pet. App. 12a.

Judge Kirsch concurred in part and dissented in

part. Pet. App. 37a. In Judge Kirsch’s view, Watkins’s “transitory” status—coupled with his “chronic”

rather than “acute” injury—presented sufficiently

meaningful differences from Carlson. Pet. App.

41a−42a.

Although divided on the Bivens claims, the panel

unanimously agreed that Watkins’s FTCA claim

should be remanded to the district court for further

fact-finding to evaluate whether equitable tolling excused the untimely filing. Pet. App. 27a; see also Pet.

App. 37a.

The Seventh Circuit denied a petition for rehearing and rehearing en banc on November 3, 2025, with

no judge of the Seventh Circuit requesting a vote. Pet.

App. 72a−73a.

REASONS FOR DENYING THE PETITION

I. Petitioners Identify No Concrete Circuit

Conflict Warranting This Court’s Review.

Painting with a broad brush, Petitioners assert

that Carlson claims have “generated ‘a flood of inconsistent case law across and within circuits’” in recent

years. Pet. 18 (quoting Pet. App. 45a). Yet Petitioners

cannot identify any concrete circuit split. Instead, Petitioners ask the Court to grant certiorari to review a

handful of purportedly “conflicting decisions” that do

not bear on the question presented as Petitioners

10

themselves framed it. Pet. 18, 23; see also Pet. i, 20.

The Court should deny the petition.

A. There Is No Circuit Split Over Whether

Carlson Draws a Distinction for Deliberate Indifference to “Chronic” Versus

“Acute” Medical Needs.

Petitioners maintain that the issue most worthy of

this Court’s consideration is whether “a case involving

allegations of inadequate care for chronic pain, not an

acute medical emergency, sufficiently differs from

Carlson to preclude a judicially inferred cause of action.” Pet. 7; see also Pet. 20. Their framing of the

question presented confirms as much, focusing on

whether the recognized Carlson cause of action encompasses “deliberate indifference to an inmate’s

chronic pain after a surgery.” Pet. i.

There is no circuit split as to whether a claim of

“deliberate indifference to an inmate’s chronic pain after surgery,” Pet. i, falls within the same context as

Carlson. Indeed, Petitioners fail to identify a single

decision that has drawn their proposed chronic/acute

distinction. Petitioners instead point to cases in

which courts have purportedly parted ways over

whether a prisoner’s underlying injury is insufficiently severe to merit relief under Carlson—

specifically, whether a plaintiff must allege a lifethreatening injury or death to have a claim. Pet. 20.

But any alleged split on the issue of severity is illusory.

The supposedly divergent outcomes that

Petitioners identify reflect nothing more than a reasonable application of the Court’s case-specific, factdriven Bivens inquiry.

1. No circuit has adopted a categorical rule that

either endorses or rejects the proposition that the

11

severity of a plaintiff’s injury represents a “meaningful” difference from Carlson. Petitioners assert that

the Seventh and Ninth Circuits are out of step with

other circuits because, to date, they have allowed

Carlson claims to proceed even if they involve “a different type of injury or different type of treatment”

than what was at issue in Carlson. Pet. 20−21. Petitioners overstate these courts’ approach and ignore

that the Third, Fourth, and Fifth Circuits have similarly reasoned that a different injury does not

reflexively create a “new context.”

The Seventh Circuit has twice concluded that, under the facts alleged, the severity of the injuries in the

cases before it did not constitute a “meaningful” difference from Carlson. In Brooks v. Richardson, 131

F.4th 613 (7th Cir. 2025), the Seventh Circuit concluded that there was no meaningful difference from

Carlson where the plaintiff had alleged mistreatment

of his appendicitis, which led to a ruptured appendix,

peritonitis, and “agonizing pain.” Id. at 614−16. Writing for the unanimous panel, Judge Easterbrook

explained that “the duration of the poor care or the

gravity of the condition . . . seem[ed] more pertinent

to the merits than to determining the scope of the

holding in Carlson.” Id. at 615. The panel did not,

however, adopt a categorical rule that differences in

the degree or nature of the medical condition could

never be meaningfully different from Carlson. The decision in the present case did nothing more than follow

the same reasonable approach. See infra pp. 20−22.

The Ninth Circuit has taken a similar approach.

In Watanabe v. Derr, for example, the Ninth Circuit

held that “the allegations, on their face,” presented a

Carlson claim because the plaintiff alleged he was denied adequate medical care after he was seriously

12

injured in a gang fight. 115 F.4th 1034, 1038, 1040

(9th Cir. 2024), pet. for cert. filed, No. 25-417 (U.S. Oct.

3, 2025). The court reasoned that “[a] plaintiff need

not suffer death or a life-threatening injury for his

claim to be sufficiently analogous to Carlson.” Id. at

1041. Rather, it was sufficient that the plaintiff had

alleged an injury that “resulted in a serious medical

condition, and the condition has caused extreme pain

ever since.” Id.

The Third Circuit is in accord. In Muniz v. United

States, the court concluded there was no meaningful

“difference between amputation and death” because

the prisoner’s injuries and treatment did not “provide[] a ‘reason[] to think Congress might doubt the

efficacy or necessity of a damages remedy’ in this context.” 149 F.4th 256, 262−63 (3d Cir. 2025) (quoting

Egbert, 596 U.S. at 491). In the court’s view, “this difference neither provides insight into congressional

intent nor meaningfully changes the remedial analysis the Supreme Court already undertook in Carlson.”

Muniz, 149 F.4th at 262.

The Fourth Circuit similarly focuses on whether a

prisoner’s claims “rest on a dissatisfaction with the

prison system’s institutional decisions” or “the types

of deliberate malfeasance that provided the basis for

the plaintiff’s claims in Carlson.” Spivey v. Breckon,

173 F.4th 174, 180 (4th Cir. 2026). Accordingly, the

Fourth Circuit has rejected claims based on the delayed treatment of a tooth cavity due to dental staffing

shortages, as well as the refusal to place a prisoner in

a psychology class because of disciplinary issues, id.,

while allowing a claim based on the outright failure to

provide a necessary surgical repair for torn ligaments,

Masias v. Hodges, No. 21-6591, 2023 WL 2610230, at

*1−2 (4th Cir. Mar. 23, 2023) (allegations did not

13

“present a new context” even where injuries were “not

likely to cause permanent damage or death”) (citing

Langford v. Joyner, 62 F.4th 122, 126−27 (4th Cir.

2023)).

And the Fifth Circuit has concluded that a prisoner’s alleged inadequate treatment for a facial

fracture arose in the same context as Carlson, even

though the prisoner “did not die” and “his need for

medical attention did not relate to asthma” as under

the specific facts of Carlson. Vaughn v. Bassett, No.

22-10962, 2024 WL 2891897, at *3−4 (5th Cir. June

10, 2024) (citing Carlucci v. Chapa, 884 F.3d 534, 540

(5th Cir. 2018)).

2. Despite Petitioners’ attempts to manufacture a

split, see Pet. 20−21, the First, Tenth, and Eleventh

Circuits have employed the same fact-dependent inquiry.

None of these courts has categorically

foreclosed or endorsed a Bivens remedy where the severity of a prisoner’s injury differs from the fatal

result in Carlson.

The First Circuit’s position is far more modest

than Petitioners suggest. Petitioners claim that the

First Circuit “effectively limited Carlson to ‘wrongful

death-like action[s]’ involving ‘medically contraindicated’ treatments and ‘failure to adequately

treat . . . a life-threatening condition or extreme

pain.’” Pet. 20 (alterations in original) (quoting Waltermeyer v. Hazelwood, 136 F.4th 361, 366−67 (1st

Cir. 2025)). The First Circuit did no such thing. Given

the facts alleged, the court determined that a prisoner’s request for knee surgery differed meaningfully

from Carlson because the prisoner “received numerous treatments and accommodations to treat his

condition, and the procedures and treatments provided

were

in

accordance

with

doctors’

14

recommendations.” 136 F.4th at 366. Nowhere did

that court adopt a categorical rule requiring that a

plaintiff suffer a life-threatening injury (or death) for

a claim to be cognizable.

Nor has the Tenth Circuit adopted such a categorical rule. In Rowland v. Matevousian, the court

reasoned that the facts “meaningful[ly]” differed from

Carlson for several reasons, including that prison officials did not “act contrary to the doctor’s

recommendations”; “give ‘contraindicated drugs’”;

“knowingly keep [plaintiff] in a medical facility that

was ‘grossly inadequate’”; or “prescribe or use a medical instrument that was ‘known to be inoperative.’”

121 F.4th 1237, 1242−43 (10th Cir. 2024) (first alteration in original). Like other circuits, Rowland

reached a holistic conclusion based on all the facts alleged and did not adopt any categorical rule.

Finally, Petitioners cite in a parenthetical the

Eleventh Circuit’s decision in Johnson, in which the

court “noted” that the plaintiff’s alleged harm “differ[ed] . . . from those of the prisoner in Carlson.” Pet.

20 (quoting Johnson, 119 F.4th at 859). But as Petitioners concede, that observation bears no weight:

“[O]ther aspects of the court’s reasoning” had already

foreclosed relief, even before the court considered the

severity of the alleged injury. Pet. 20; see infra pp. 15,

18. On this score, Johnson is not inconsistent with

any other circuit.

In short, courts are properly taking a case-by-case

approach to determine whether the facts before them

establish meaningful differences from Carlson. They

are heeding this Court’s instructions of what types of

differences count as meaningful. And as one would

expect, they sometimes find a meaningful difference

and sometimes do not. No circuit has adopted a

15

bright-line rule that chronic injury claims categorically fall outside the context of Carlson. Nor has any

circuit adopted a bright-line rule that anything short

of death or life-threatening injury creates a meaningful difference from Carlson. This Court does not

usually intervene just because the same test applied

to different facts sometimes yields different results,

and there is no reason to do so here.

B. Review Is Not Warranted to Correct a Different

Circuit’s

Outlier

Decision

Nullifying Carlson.

Petitioners claim to identify “conflicting decisions”

over whether the ARP’s existence effectively nullifies

the cause of action recognized in Carlson. Pet. 18−19.

That purported “conflict” is badly lopsided at best. Petitioners’ argument hinges on Johnson, which broke

from every other circuit and “adopted reasoning that

effectively forecloses any more Carlson claims.” Pet.

19. As Petitioners concede, the ARP existed when this

Court decided Carlson, see Pet. 12, which in the Eleventh Circuit’s view means that Carlson had no

prospective effect from the day it was decided, because

Carlson “did not consider the existence of alternative

remedies under the framework explained in Egbert,”

Johnson, 119 F.4th at 858.

The outlier decision in Johnson is hardly a reason

to grant certiorari here. See infra pp. 31−32. As Petitioners concede, no other court of appeals—including

the court below—has adopted its extreme position.

See Pet. 19. Petitioners do not even seem to offer a

full-throated endorsement of Johnson. Time will tell

if the Eleventh Circuit clarifies or walks back its bold

suggestion that a decision of this Court had no prospective application from the day it was decided, or if

16

other circuits will find that surprising result persuasive. For now, there is no reason to grant certiorari,

and certainly not in this case. See infra pp. 31−34.

1. Since its inception in 1979, the ARP has operated as a limited, administrative grievance procedure

providing federal prisoners an opportunity to resolve

disputes within the prison system. Although the program has been amended, these changes have not

substantively altered its basic function. See, e.g., Administrative Remedy Program, 61 Fed. Reg. 88 (Jan.

2, 1996) (codified at 28 C.F.R. § 542) (extending deadlines to file and respond to complaint). The ARP

allows prisoners to file complaints for alleged mistreatment in prison, 28 C.F.R. § 542.13(b), but unlike

Bivens, the ARP “ordinarily cannot provide monetary

relief,” Administrative Remedy Program: Excluded

Matters, 67 Fed. Reg. 50804, 50804 (2002) (codified at

28 C.F.R. § 542).

Following Egbert, no other court of appeals analyzing Carlson claims has held that the ARP’s mere

existence renders the claim a “new context.” Instead,

these courts have generally adhered to this Court’s

two-step Bivens framework and reserved consideration of potential “alternative remedies,” like the ARP,

until step two of the analysis. See, e.g., Watanabe, 115

F.4th at 1042 (declining to consider ARP because alternative remedy programs are relevant to the

“second step of the Bivens analysis,” which the court

did not reach); Brooks, 131 F.4th at 616 (no discussion

of alternative remedies because suit did not present a

“new context”); Vaughn, 2024 WL 2891897, at *3−4

(similar, and declining to find it “meaningful” that

“prisoners now have access to an administrative remedy process through which they can address their

grievances”); see also Spivey, 173 F.4th at 180 (no

17

discussion of ARP at step one); Waltermeyer, 136 F.4th

at 368 & n.7 (same); Rowland, 121 F.4th at 1243−44

(considering alternative remedies only after concluding case presented a “new context”).

That approach is the only way to reconcile the

Court’s continued recognition of the cause of action in

Carlson with its guidance in Egbert. The Court has

repeatedly reaffirmed that Carlson represents an existing Bivens context. See, e.g., Egbert, 596 U.S. at

490–91; Hernandez, 589 U.S. at 103; Ziglar, 582 U.S.

at 131. In Egbert, the Court clarified that an “alternative remedial structure[]” will “limit the power of

the Judiciary to infer a new Bivens cause of action”—

but said nothing about foreclosing an existing cause of

action, like Carlson. 596 U.S. at 493 (emphasis

added). It follows that if a claim arises under an existing Bivens context, like Carlson, there is no need to

consider “alternative remedies” because the cause of

action is not “new”—it was established by Carlson.

Petitioners cite (at 19−20) the Third Circuit in support of this purported split, but that court has not

endorsed the Eleventh Circuit’s approach. In Muniz,

the Third Circuit made clear that “[t]he mere existence of the BOP ARP cannot meaningfully

distinguish” a case from Carlson. 149 F.4th at 265

n.5. Rather, the court reasoned that “[t]he availability

of the BOP ARP” to an individual plaintiff would “distinguish[]” the case from Carlson. Id. at 264−65. But

the court was careful to reinforce that “Carlson relief

remains available to inmates in limited circumstances,” such as where “prison administrators thwart

inmates from taking advantage of the ARP.” Id.

(cleaned up). Whether that is right or wrong, it is not

a second vote for the Eleventh Circuit’s position that

Carlson claims are defunct and have been from Day 1.

18

2. The Eleventh Circuit’s departure from this

Court’s direction does not warrant granting certiorari

here. In Johnson, the Eleventh Circuit did not engage

with this Court’s repeated affirmation that Carlson

remains settled law. Nor did it follow Egbert’s instruction to consider alternative remedies at step two.

Rather, it collapsed Bivens’s two steps into one and

held that the ARP’s mere existence rendered plaintiff’s claim “different from the one in Carlson.” 119

F.4th at 858.

No judge of the Seventh Circuit, including the dissenting judge in this case, adopted this approach. Nor

do Petitioners urge the Court to adopt the Eleventh

Circuit’s reasoning here. Instead, Petitioners point to

the Eleventh Circuit to tepidly suggest that the Court

“may well determine that Carlson claims are no

longer viable,” Pet. 16–17 (cleaned up), without ever

asking the Court to overrule Carlson, Pet. 3, 16−17,

25 n.2, or Bivens, Pet. 25 n.2.

Petitioners’ noncommittal attitude is understandable. The Eleventh Circuit’s reasoning not only

departs significantly from this Court’s teachings, see

supra pp. 2−3, 15, but the reasoning, if accepted,

would effectively bar all future Bivens claims. See Pet.

19. This Court did not apply the “framework explained in Egbert” in Bivens, Carlson, or Davis—

indeed, Egbert was decided nearly 40 years after Carlson, which was the most recent of the Court’s cases to

recognize a Bivens cause of action. But the Court’s use

of an earlier methodology does not deprive its precedents of stare decisis. See Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 412 (2024) (prior holdings

“are still subject to statutory stare decisis despite [the

Court’s] change in interpretive methodology”); see also

infra pp. 27−30.

19

This Court does not grant review simply to correct

one circuit’s error—particularly where, as here, the

decision below did not commit the same error, and no

party before this Court endorses that error. See supra

pp. 15, 18; infra pp. 25, 33–34. This issue at minimum

“would benefit from further percolation in the lower

courts prior to this Court granting review,” if it need

be addressed at all. Calvert v. Texas, 141 S. Ct. 1605,

1606 (2021) (statement of Sotomayor, J., respecting

denial of certiorari); see also Box v. Planned

Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1784

(2019) (Thomas, J., concurring) (observing that “further percolation may assist our review” of the question

presented). Indeed, since Johnson, this Court has reaffirmed that alternative remedies should be

considered at step two, so it would be appropriate to

allow the Eleventh Circuit time to rejoin the fold. See

Part III.

II. The Decision Below Is Correct.

The Seventh Circuit reasonably applied the modern Bivens framework and concluded that Watkins’s

claim could proceed because it does not meaningfully

differ from Carlson. Petitioners neither ask this

Court to overrule Carlson nor to revisit Bivens. The

decision below contains no error, much less one so significant or important as to warrant this Court’s

intervention.

A. This Case Arises in the Same Context as

Carlson.

1. The Seventh Circuit faithfully applied the

Court’s Bivens framework and resolved this case at

step one. Pet. App. 7a. This Court has repeatedly reaffirmed that Carlson recognized a damages remedy

for when federal officials are deliberately indifferent

20

to a prisoner’s serious medical needs. See, e.g., Egbert,

596 U.S. at 490–91 (Carlson “authorize[d] a remedy

for a federal prisoner’s inadequate-care claim under

the Eighth Amendment”) (cleaned up); Hernandez,

589 U.S. at 103 (Carlson “allow[ed a] Bivens remedy

for an Eighth Amendment claim for failure to provide

adequate medical treatment”); Ziglar, 582 U.S. at 131

(describing Carlson as providing “a damages remedy”

under the Eighth Amendment “for failure to provide

adequate medical treatment”). Watkins alleges he

suffered constitutionally inadequate medical care

while a convicted prisoner in federal detention. His

principal theory is thus identical to the one articulated in Carlson and his claims arise within an

existing Bivens context. Pet. App. 8a.

The decision below correctly held that Watkins’s

Eighth Amendment claims present no meaningful difference from Carlson.

See Pet. App. 9a−17a.

Adhering closely to the Ziglar factors, the Seventh

Circuit concluded there was no meaningful difference

because Watkins’s claims involved officers of the same

rank, the same constitutional right, the same “generality or specificity of the official action,” and abundant

judicial guidance. Pet. App. 10a−11a, 14a−16a. Because Watkins’s claims were “no more disruptive or

intrusive than what Carlson itself already approved,”

his claims were allowed to proceed. Pet. App.

13a−14a. The court thus resolved the case at step one

and properly declined to reach the “special factors”

analysis at step two. Pet. App. 7a, 17a; see also, e.g.,

Stanard v. Dy, 88 F.4th 811, 818 (9th Cir. 2023) (“Because Stanard’s Eighth Amendment claims arise

within an existing context, we need not proceed to the

special factors inquiry.”); see also Snowden, 72 F.4th

at 239.

21

2. Petitioners dispute the Seventh Circuit’s reasoning, arguing that Watkins’s case “meaningfully

differs from Carlson in at least four ways.” Pet. 11.

The first two—the severity of Watkins’s injury and the

ARP’s existence—track Petitioners’ purported “conflicting decisions.” Pet. 18; see supra Part I. The last

two—that Watkins was detained in a different type of

facility and that Congress enacted the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, after

Carlson—do not. Pet. 11–14. None of these differences is “meaningful.”1

Severity of the Injury. Petitioners argue this

case meaningfully differs from Carlson because it “involves a different type of injury.” Pet. 12. But the

Court has never suggested that an inmate must suffer

an acute medical emergency to pursue a Bivens remedy. That makes sense: Standing alone, a difference

in the specific injury giving rise to a serious medical

need does not necessarily alter the policy balance that

initially justified the damages remedy in Carlson.

The decedent in Carlson suffered from asthma, but it

is difficult to believe that there would be a separationof-powers difference between deliberate indifference

to asthma and deliberate indifference to, for example,

a heart attack.

Petitioners’ argument (at 12−13) that Watkins

seeks relief for inadequate treatment of a “chronic”

condition misconstrues Watkins’s allegations—to the

point that the question presented is not even presented. Watkins alleges that MCC’s medical and

correctional staff, including Petitioner Mohan, “dismissed” his “severe pain and swelling in his groin”

1 Petitioners abandon any argument that Watkins’s complaint

can be read to allege supervisory liability. See Pet. App. 8a.

22

following hernia repair surgery. Pet. App. 3a. He further alleges that MCC’s medical staff, including

Petitioner Mohan, gave him “ineffective” pain medication, “denied his request to schedule a follow-up

appointment with his surgical team,” and “did not provide any additional care to address Watkins’[s] pain

or swelling.” Id. Based on these allegations, the Seventh Circuit correctly concluded that Watkins’s

Eighth Amendment claims, “like the plaintiff in Carlson,” were focused solely on “the discrete acts and

omissions of particular medical and correctional personnel who treated him or made decisions about his

care,” not failure to treat a “chronic” condition. Pet.

App. 11a. A case involving acute pain from a discrete

precipitating event would be a peculiar vehicle to decide whether “chronic pain,” Pet. i, presents a new

context.

Even if Watkins’s complaint could be read to fault

Petitioner Mohan and others for failing to treat a

chronic condition, that would still not separate his

case from Carlson. As the Seventh Circuit observed,

Carlson itself dealt with deficient management of a

“chronic,

non-emergent

medical

condition”—

asthma—which required “continuous, periodic treatment over many months, as well as all the

administrative decisions that such treatment necessarily entails.” Pet. App. 12a−13a (emphasis added)

(discussing Green v. Carlson, 581 F.2d 669 (7th Cir.

1978)); see also Ziglar, 582 U.S. at 140 (describing

cause of action “approved” in Carlson as “a claim

against prison officials for failure to treat an inmate’s

asthma”). This Court’s decision in Carlson barely

dwelled on the specifics of the injury, but the very first

thing this Court mentioned was the decedent’s

“chronic asthmatic condition.” Carlson, 446 U.S. at 16

23

n.1 (emphasis added). Even if Watkins’s claim were

read as seeking relief for a “chronic” condition, therefore, that would hardly present a meaningful

difference from Carlson as this Court itself described

that case.

In any event, the severity of the underlying injury

is not a “meaningful” difference under the Court’s

Bivens jurisprudence because it does not alter the policy balance that justified the implied damages remedy

in Carlson. See Ziglar, 582 U.S. at 139 (discussing

“trivial” differences). Carlson did not turn on the fact

that the prisoner died from an asthma attack. Instead, the Court focused on the status of the

individual officers, the lack of an effective alternative

remedy, the absence of a congressional declaration

foreclosing a damages remedy, and the need for a uniform rule. See 446 U.S. at 18−23. Those factors are

present regardless of a plaintiff’s underlying injury.

This Court has never concluded that a “new context” exists based on a difference in degree. In

analyzing Bivens claims, the Court has been concerned with qualitative differences between the

claims in which an implied damages remedy was allowed and the claims plaintiffs assert. See, e.g.,

Ziglar, 582 U.S. at 140 (new context where claim challenged “high-level executive policy” responding to

“terrorist attack” that “b[ore] little resemblance to”

previously recognized Bivens context); id. at 147−49

(finding meaningful difference where claim “implicat[ed] a different constitutional right” and

concluding “Congress chose not to extend the Carlson

damages remedy to cases involving other types of prisoner mistreatment” (emphases added)); Goldey, 606

U.S. at 944 (“Eighth Amendment claim for excessive

force” arose in different context than inadequate-care

24

claim in Carlson); Hernandez, 589 U.S. at 103 (new

context because there is “a world of difference between” claim for warrantless arrest and “cross-border

shooting claims” which would “risk . . . disruptive intrusion by the Judiciary into the functioning of other

branches”). That focus makes sense because not all

factual differences will impact the policy balance that

initially justified a Bivens remedy. See Ziglar, 582

U.S. at 139.

ARP. Petitioners argue that the ARP’s existence

transforms Watkins’s case into a “new context.” Pet.

12. But Petitioners concede that the ARP “already existed” when Carlson was decided. Pet. 12 (citing, e.g.,

Control, Custody, Care, Treatment, and Instruction of

Inmates, 44 Fed. Reg. 62,248, 62,250 (Oct. 29, 1979)).

As a result, Petitioners effectively argue that Carlson

was “moribund” the day it was issued. Pet. 25 n.2; see

also Pet. 17. Saying a case was wrong the day it was

decided is not an argument that Watkins’s case arises

in a new context—it is an argument that Carlson

should be overruled. Yet Petitioners do not ask the

Court to overrule Carlson, instead asserting that “[n]o

more Carlson claims should be viable” because “under

a proper application of the framework set out in this

Court’s recent Bivens cases, Carlson should be obsolete.” Pet. 3.

This Court has never suggested—in Carlson or any

decision since—that the ARP’s mere existence creates

a “new context” for every claim arising under Carlson.

Just the opposite: The Court has consistently reaffirmed Carlson’s continued vitality, notwithstanding

the ARP. See supra pp. 2−3, 17.

Petitioners’ argument also departs from the modern Bivens framework. The question of alternative

remedies arises at step two: When a case presents a

25

“new context,” courts will consider whether alternative remedies are a “special factor” counseling

hesitation before recognizing an implied damages

remedy. See Ziglar, 582 U.S. at 144–45 (discussing

alternative remedies at step two); see also Egbert, 596

U.S. at 497–98 (same). Consistent with that guidance, below, Petitioner Mohan raised his alternative

remedy argument only in step two. See 7th Cir. Dkt.

26 at 42. It is thus unsurprising that the Seventh Circuit did not address the ARP because it decided this

case at step one. Pet. App. 7a; see also supra pp.

19−20; infra pp. 33–34.

Nature of the Facility. Petitioners assert that

because Watkins suffered deliberate indifference at a

pretrial detention facility, his claims arise in a new

context. Pet. 13−14. According to Petitioners, such

detention centers are “inherently transitory,” which

means “[t]he policy considerations at stake here are

thus separate and distinct from those in Carlson.”

Pet. 14 (cleaned up).

The Seventh Circuit correctly reasoned that the

nature of the facility is not a meaningful difference because it does not implicate policy considerations

beyond those already contemplated in Carlson. Carlson itself involved allegations regarding prison

assignment and transfer. 446 U.S. at 16 n.1. As the

court of appeals observed, “all federal detainees and

prisoners are subject to transfer to different facilities

at any time for a host of reasons.” Pet. App. 11a. That

Watkins was transferred to another correctional facility is not a meaningful difference. See, e.g., Stanard,

88 F.4th at 814, 817 (allowing Eighth Amendment deliberate indifference claim alleging inadequate

medical care from sentencing in January to transfer

26

in September to proceed against doctor at federal detention center).

That Watkins “was a pretrial detainee when the

alleged deliberate indifference to his medical needs

began,” Pet. 13, also does not create a meaningful difference foreclosing his Eighth Amendment claims.

Watkins was imprisoned at MCC post-conviction from

July 18 to July 29, 2019. Pet. 4; see also Pet. App. 3a.

As the Seventh Circuit correctly explained (at 10a

n.3), this Court has consistently evaluated the viability of a Bivens remedy on a claim-by-claim basis. See,

e.g., Egbert, 596 U.S. at 486, 494–98 (analyzing separately claims for relief under the First and Fourth

Amendments); accord Carlson, 446 U.S. at 16 & n.1.

The fact that Watkins may also have grounds to plead

a Fifth Amendment claim does not mean that his

Eighth Amendment post-conviction deliberate indifference claims present a “new context.” Indeed, the

Carlson plaintiff also pled a Fifth Amendment claim,

but that did not preclude a Bivens remedy for violations of the decedent’s Eighth Amendment rights. See

Carlson, 446 U.S. at 16 & n.1.

Statutory Scheme. Petitioners are wrong that

the PLRA changes the availability of a Bivens remedy.

Pet. 11. Like the ARP, see supra pp. 24−25, any effect

the PLRA may have on the Bivens analysis arises at

step two, after a court has already concluded a plaintiff’s claims arise in a new context. See, e.g., Ziglar,

582 U.S. at 148 (describing PLRA as “a factor counseling hesitation” at step two).

In any event, the PLRA’s enactment did not categorically create a meaningful difference foreclosing

Bivens remedies for Eighth Amendment deliberate indifference claims. The PLRA simply imposed an

exhaustion requirement before such claims may be

27

brought. See 42 U.S.C. § 1997e. Indeed, the PLRA

presupposed the existence of at least some Bivens

remedies, providing that no actions may be brought

“under section 1983 of this title, or any other Federal

law,” before a prisoner exhausts available administrative remedies. Id. § 1997e(a) (emphasis added). As

this Court recognized, Congress was necessarily referring to “federal prisoners suing under Bivens.” Porter

v. Nussle, 534 U.S. 516, 524 (2002).

This Court has confirmed that the PLRA is at its

most relevant at step two. In Ziglar, the Court observed that the PLRA “does not provide for a

standalone damages remedy,” and therefore “[i]t could

be argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving

other types of prisoner mistreatment.” 582 U.S. at 149

(emphasis added). The obvious corollary is that it cannot be argued that Congress was displacing “the

Carlson damages remedy” that by then was already a

fixture of the law. Id.2

B. Stare Decisis Counsels Against Overruling

Carlson—or Doing the Equivalent by Declaring It “Moribund” on the Day It Was

Decided.

Petitioners do not ask the Court to overrule Carlson. Instead, Petitioners surmise that “[n]o more

2 Despite this Court’s reasoning in Ziglar, the Fourth Circuit recently considered the PLRA at step one. Spivey, 173 F.4th at

180. In so doing, it parted ways with its prior decision in Bulger

v. Hurwitz, which considered the PLRA only at step two. See 62

F.4th 127, 140–41 (4th Cir. 2023). Despite citing Bulger, the

Spivey panel neither acknowledged nor addressed this tension.

This intra-circuit split has no bearing on the question presented

in this petition. See Pet. i.

28

Carlson claims should be viable” because “under a

proper application of the framework set out in this

Court’s recent Bivens cases, Carlson should be obsolete.” Pet. 3; see also Pet. 17, 25 n.2 (describing

Carlson as “moribund”). But this Court “does not

overturn its precedents lightly,” Michigan v. Bay Mills

Indian Cmty., 572 U.S. 782, 798 (2014), nor does it

“overturn . . . earlier authority sub silentio,” Shalala

v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 17–

18 (2000). Congress is free to repudiate Carlson at

any time, but instead it has done the opposite and legislated in reliance on Carlson’s continued vitality.

Stare decisis supports preserving Carlson.

1. To overrule precedent, “it is not alone sufficient

that [the Court] would decide a case differently now.”

Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455−56

(2015). Rather, the stare decisis factors—such as

“meaningful reliance” and workability, see Loper

Bright, 603 U.S. at 409–10—must provide “a ‘special

justification’” for upending the “evenhanded, predictable, and consistent development of legal principles”

that precedent creates, Kimble, 576 U.S. at 455−56

(citations omitted). No factor justifies overruling

Carlson.

Congress has legislated in clear reliance on Carlson. In the Westfall Act, Congress made the FTCA the

exclusive remedy for state-law damages claims

against federal officers but provided an “explicit exception for Bivens claims.” Hui v. Castaneda, 559 U.S.

799, 807 (2010); accord 28 U.S.C. § 2679(b)(2)(A).

Congress thus ratified Carlson’s understanding that

the FTCA is “parallel” and “complementary” to a

cause of action for deliberate indifference to serious

medical needs. 446 U.S. at 19–20; see also Malesko,

534 U.S. at 68. Similarly, through the PLRA,

29

Congress aimed to “inhibit frivolous [prisoner] filings”

by enacting administrative exhaustion requirements,

see supra pp. 26−27, but did not eliminate the availability of a Bivens remedy, Cutter v. Wilkinson, 544

U.S. 709, 726 (2005). Stare decisis operates with “special force” where, as here, Congress is “free to alter

what [this Court] ha[s] done,” but has chosen to stay

the course. Bay Mills Indian Cmty., 572 U.S. at 799

(citation omitted).

Nor has Carlson proven unworkable. Lower courts

apply Carlson coherently within its limited sphere,

while vigilantly preventing its application to new contexts. See, e.g., Brooks, 131 F.4th at 616−17 (applying

Carlson to Eighth Amendment deliberate indifference

claims but declining to apply it to “the formulation of

medical-care guidelines, policies, or protocols in

prison”); Stanard, 88 F.4th at 818 (declining to extend

Carlson to Fifth Amendment claim based on the same

conduct as the Eighth Amendment claim); see also supra pp. 11−14.

Petitioners’ unsupported assertions (at 15−16)

that Carlson has had “negative systemic consequences

for

prison

officials,”

including

a

“demonstrated risk of ‘harassing litigation,’” fail to

show that Carlson has “caused significant negative jurisprudential or real-world consequences.” Ramos v.

Louisiana, 590 U.S. 83, 122 (2020) (Kavanaugh, J.,

concurring in part) (emphasis added). To start, the

generalized statistics Petitioners provide account for

all civil-rights suits filed by federal or state prisoners

in district courts, not just Carlson claims. See Pet. 23.

But the vast majority of such suits are brought

against state or local actors under 42 U.S.C. § 1983,

not Bivens or Carlson. See Margo Schlanger, Prison

and

Jail

Civil

Rights/Conditions

Cases:

30

Longitudinal Statistics, 1970–2021 (Mich. L. Sch. L.

& Econ Working Paper No. 232, 2021),

https://perma.cc/2FL5-KZET. This in part follows

from Congress’s choice to legislate mechanisms to control the flow of federal prisoner litigation into federal

courts. The PLRA provides both an administrative exhaustion requirement, see supra pp. 26−27, as well as

a means for judges to screen out frivolous claims before they are even docketed, 28 U.S.C. § 1915A.

Petitioners’ statistics, if anything, demonstrate that

these safeguards are serving their purpose, leaving

Petitioners’ claims of widespread “harassing litigation” without support. Indeed, one study placed the

number of Carlson cases at under 1% of the total federal question cases in the federal districts surveyed.

See Alexander A. Reinert, Measuring the Success of

Bivens Litigation and Its Consequences for the Individual Liability Model, 62 Stan. L. Rev. 809, 833

(2010). Petitioners cite nothing to show how many

“harassing” claims are permitted to proceed, let alone

how such cases merit revisiting this well-entrenched

precedent.

2. Petitioners do not engage with the stare decisis

factors. Instead, Petitioners invoke the retroactivity

exception for “watershed rules of criminal procedure”

in Teague v. Lane, 489 U.S. 288, 311 (1989), and its

demise in Edwards v. Vannoy, 593 U.S. 255 (2021), to

argue that Carlson is “moribund.” Pet. 17–18. According to Petitioners, Vannoy provides a “useful

parallel” because, as with the Teague watershed exception, “the Court has time and again rejected

prisoners’ efforts to bring suits under Carlson.” Pet.

17.

That analogy fails. In Teague, the “watershed” exception was expressly conceived as a vanishingly

31

narrow hypothetical. 489 U.S. at 313. The cause of

action recognized in Carlson was not. The Court

framed Carlson as immediately actionable relief, not

an abstract hypothetical exception. See 446 U.S. at

24−25. This Court’s decision to limit Bivens remedies

to existing contexts bears little resemblance to its rejection of “every claim that a new procedural rule

qualifies as a watershed rule.” Vannoy, 593 U.S. at

267–68; see also Egbert, 596 U.S. at 490−91 (observing

some Bivens claims remain viable). Teague and Vannoy provide no reason to abandon Carlson.

III. Neither This Case nor Watanabe Are Worthy

of Certiorari.

The issues presented in this case and the pending

petition in Nielsen v. Watanabe, No. 25-417 (filed Oct.

3, 2025), do not merit the Court’s time and resources.

Both the Seventh and Ninth Circuits correctly applied

the modern Bivens framework to prototypical Carlson

claims. See supra pp. 10−12; see also BIO at 27, Nielsen v. Watanabe, No. 25-417 (U.S. Jan. 5, 2026).

Granting review in these cases would be a vehicle for

little else than to reiterate this Court’s frequent admonitions that Carlson remains good law, or

otherwise engage in minor debates about the precise

boundaries of that recognized cause of action when

confronting differing sets of facts. See supra p. 14.

If any issue is remotely worthy of certiorari, it is

the Eleventh Circuit’s outlier view that Carlson is

moribund based on an administrative process that existed before Carlson was decided. See Johnson, 119

F.4th at 858−59. If the Court wishes to address that

anomalous holding, it should do so after giving the

Eleventh Circuit an opportunity to bring its precedent

into conformity with the two-step framework the

Court recently reiterated. See Goldey, 606 U.S. at

32

944. Indeed, such an opportunity is currently pending. See, e.g., Carrin v. Smiledge, 773 F. Supp. 3d

1284, 1292−93 (N.D. Fla. 2025) (granting judgment on

the pleadings following Johnson, but “invit[ing]”

plaintiff to “appeal her case to the Eleventh Circuit”), appeal docketed, No. 25-11330 (11th Cir. Apr.

22, 2025); see also Pet. 23 (representing “[q]uestions

about Carlson’s scope arise frequently”). If the Eleventh Circuit does not correct course and fails to adhere

faithfully to the two-step framework, the Court can

consider granting certiorari in a case arising from that

circuit, and might even conclude that summary reversal is appropriate. See, e.g., Goldey, 606 U.S. at 945

(summarily reversing the Fourth Circuit after erroneously applying Bivens).

Setting aside the Eleventh Circuit’s errors, this

case and Watanabe present equally bad vehicles for

three reasons: The questions presented are factbound, were passed over by the lower courts, and may

be obviated through discovery and additional motions

practice.

First, both petitions seek the Court’s review on

fact-bound questions, focusing on whether specific

facts render the plaintiffs’ claims a “new context.” Petitioners here ask whether Watkins’s Carlson claim

may proceed given that he was imprisoned at a “pretrial detention center” and suffered inadequate

medical care for “pain after a surgery.” Pet. i. Similarly, the Watanabe petitioner focuses on the

“immediacy and severity of the harm alleged.” Petition at i, Nielsen v. Watanabe, No. 25-417. But this

Court generally does not “grant a certiorari to . . . discuss specific facts,” instead taking up petitions with

implications for future cases. Texas v. Mead, 465 U.S.

1041, 1043 (1984) (Stevens, J., respecting denial of

33

certiorari) (citation omitted); see also Kyles v. Whitley,

514 U.S. 419, 460 (1995) (Scalia, J., dissenting) (noting fact-bound cases are “the type of case[s] in which

we are most inclined to deny certiorari”). Answering

the specific questions that the petitioners in both

cases chose to ask would not offer meaningful guidance for future cases.

Second, both cases come to the Court in their earliest stages. This case and Watanabe were appeals

from motions to dismiss. After the Seventh and Ninth

Circuits reversed the dismissals, no petitioner moved

to stay the mandate. Proceedings have thus resumed

in the trial courts. In Watkins, the district court recently granted Petitioner Mohan’s motion to extend

his time to file an answer until June 30, 2026. Dist.

Ct. Dkt. 78; see also Dist. Ct. Dkt. 81 (confirming answer is due June 30). Watanabe is stayed pending

resolution of the certiorari petition. See Watanabe v.

Derr, No. 1:22-cv-00168-JAO-RT (D. Haw. Sept. 9,

2025), ECF No. 43. In both, discovery may clarify crucial issues raised in the pleadings. Indeed, the entire

Seventh Circuit panel agreed that Watkins’s case

needed additional fact finding on his FTCA claim.

Pet. App. 31a. Additional facts will better position the

district courts to assess the Carlson and other claims

and would aid any future appellate review. See Seattle’s Union Gospel Mission v. Woods, 142 S. Ct. 1094,

1094 (2022) (Alito, J., respecting the denial of certiorari) (noting the Court regularly denies cases in an

“interlocutory posture”); see also Nat’l Football League

v. Ninth Inning, Inc., 141 S. Ct. 56, 56−57 (2020) (Kavanaugh, J., respecting denial of certiorari)

(“interlocutory posture . . . counsel[s] against . . . review”).

34

Third, this Court typically does not grant certiorari where “the question presented was not pressed or

passed upon below.” United States v. Williams, 504

U.S. 36, 41 (1992). According to Petitioners, the question presented implicates both the Fifth and Eighth

Amendments. Pet. i. But as Petitioners concede, the

Seventh Circuit did not consider Watkins’s Fifth

Amendment claim. See Pet. 24. Neither did the district court. See Pet. App. 10a n.3; see also Pet. App.

63a n.10. Nor did the Seventh Circuit consider Petitioners’ argument that the ARP renders any Carlson

claim a “new context” because Petitioners only raised

the ARP at step two. See supra p. 25. Granting certiorari on issues passed over by the lower courts would

contravene this Court’s typical practice because this

Court is “a court of review, not of first view.” Cutter v.

Wilkinson, 544 U.S. 709, 718 n.7 (2005).

35

CONCLUSION

For the foregoing reasons, the Court should deny

the petition.

Respectfully submitted,

Samuel Weiss

RIGHTS BEHIND BARS

1800 M Street N.W. FNT 1

#33821

Washington, DC 20033

David M. Zionts

Kendall T. Burchard

Counsel of Record

Christine Houle

Maya M. Sharp

COVINGTON & BURLING LLP

850 Tenth Street, NW

Washington, DC 20001

kburchard@cov.com

(202) 662-6000

May 12, 2026

Counsel for Respondent

Jordan Watkins