[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11394

____________________

LAQUAN JOHNSON, 

Plaintiff-Appellant,

versus

ELAINE TERRY, 

OFFICER BURGESS, 

DR. MARTIN, 

DR. WINSTON, 

MS. GARCIA, et al.,

Defendants-Appellees,

DARLENE DREW, et al.,

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Defendants.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:18-cv-01899-AT

____________________

Before BRANCH, GRANT, and ED CARNES, Circuit Judges.

ED CARNES, Circuit Judge:

LaQuan Johnson has filed a petition for rehearing en banc, 

which under our rules also functions as a petition for rehearing 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 

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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. 

The Supreme Court has decided that “in all but the most 

unusual circumstances,” we should not use Bivensto 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

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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 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.

1 Johnson appeals the district court’s grant of the defendants’ motion 

for summary judgment. Given that, we are required to view the facts as drawn 

from the pleadings, affidavits, and depositions, in the light most favorable to 

him. E.g., Hardin v. Hayes, 957 F.2d 845, 848 (11th Cir.1992); Stewart v. Baldwin 

County Bd. of Educ., 908 F.2d 1499, 1503 (11th Cir.1990). What we state as 

“facts” in this opinion may not be the actual facts. They are, however, the 

facts for summary judgment purposes. Swint v. City of Wadley, Ala., 51 F.3d 

988, 992 (11th Cir. 1995).

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Johnson intervened to try and keep the two from fighting. That 

resulted in Phillip hitting Johnson and pushing him into a toilet, 

which fractured bones in Johnson’s right hand (the first attack). 

Later that day Johnson went to “health services,” which is 

the prison’s medical clinic, to get his hand evaluated. He was 

treated by a nurse who x-rayed, splinted, and wrapped his hand.

The x-rays indicated that Johnson had fractured a bone in his hand. 

Johnson claims that Dr. Darren Martin, who viewed the x-rays, 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 

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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 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. 

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A few months later, in August 2018, a group of prisoners 

were playing basketball in an outdoor recreation area when the ball 

got stuck in the rim. Because Johnson is tall, they asked him if he 

could get the ball down. He jumped up and landed on a screw

when he came down; the screw punctured his foot and caused 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. 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 

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saw Dr. Nwude walking through the unit, the doctor refused to 

talk to him. At the time he filed this lawsuit, Johnson still walked

with a limp because of his foot injury. 

Johnson attempted to file complaints with the Bureau of 

Prisons (BOP) about the attacks he had experienced and the lack of 

adequate medical care he had received while at USP-Atlanta. To 

resolve inmate complaints that arise at USP-Atlanta and other 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. § 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. § 

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542.14(d)(1). If he is unsatisfied with the warden’s response to his 

complaint, he may appeal to the regional director (on a BP-10 

form), and then to the office of general counsel (on a BP-11 

form). See id. § 542.15(a). Johnson testified in his deposition that 

Terry (the correctional counselor) either would refuse to give him 

any of the various informal or formal grievance forms when he 

asked, or would give Johnson a form but refuse to file it after 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 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 USPAtlanta. The defendants filed a motion to dismiss his complaint for 

failure to exhaust his administrative remedies because he did not 

comply with the BOP’s administrative remedy program before 

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filing his complaint. The district court denied the motion without 

prejudice and provided the parties with a limited discovery period 

to determine whether Johnson had exhausted his administrative 

remedies. After discovery closed, the defendants renewed their 

motion to dismiss. The magistrate judge assigned to the case found 

that Johnson was denied access to the administrative remedy 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, 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 

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had violated his constitutional rights. Congress has never enacted 

a corresponding statute providing a damages remedy to plaintiffs 

whose constitutional rights have been violated by a federal official. 

See Ziglar v. Abbasi, 582 U.S. 120, 130 (2017). Nevertheless, in Bivens,

the Supreme Court created for the first time an implied private 

right of action for damages against federal agents, at least for a 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 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.

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In the 44 years since Carlson, the Supreme Court has over 

and over again “refused to extend Bivens to any new context or new 

category of defendants.” Ziglar, 582 U.S. at 135 (quotation marks 

omitted); see Bush v. Lucas, 462 U.S. 367, 368 (1983) (holding there is 

no Bivens action for “federal employees whose First Amendment 

rights are violated by their superiors”); Chappell v. Wallace, 462 U.S. 

296, 305 (1983) (declining to create Bivens action for enlisted 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 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);

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Ziglar, 582 U.S. at 125, 146 (declining to extend Bivens to conditionsof-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-of-powers principles for a court to determine that 

it has the authority, under the judicial power, to create and enforce 

a cause of action for damages against federal officials in order to 

remedy a constitutional violation.” Ziglar, 582 U.S. at 133. And 

because the power to create causes of action is legislative, “[i]n 

most instances . . . the Legislature is in the better position to 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).

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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-anda-half decades, those “most unusual circumstances” are as rare as 

the ivory-billed woodpecker.2

2 So rare is the ivory-billed woodpecker that many experts have come 

to believe it is extinct. As one expert wrote in 2017: “The last bird, a female, 

was seen in 1944 . . . . Sadly, most ornithologists now think the bird is gone 

forever.” Andy Kratter, Ivory-billed Woodpecker, Florida Museum (2017), 

https://www.floridamuseum.ufl.edu/100-years/object/ivory-billed-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/2022-07/service-announces-6-

month-extension-final-decision-ivory-billed-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 ivory-bills (as 

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Remarkably, the Supreme Court has even “gone so far as to 

observe that if ‘the Court’s three Bivens cases had been decided 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 common-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 

ornithologists call them) still exist. Steven C. Latta et al., Multiple lines of evidence suggest the persistence of the Ivory-billed Woodpecker (Campephilus principalis) 

in Louisiana, ECOLOGY AND EVOLUTION (May 18, 2023), 

https://doi.org/10.1002/ece3.10017. If that’s true, the number of the birds 

that exist will exactly match the number of Supreme Court decisions that have 

confirmed and applied Bivens in the last forty-three years: three live ivorybilled woodpeckers and three live Bivens decisions. A coincidence of rarity.

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(“[T]o decide the case before us, we need not reconsider Bivens 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, 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 

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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 Bivenstype 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 “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 

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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 before extending 

Bivens remedies into any new context”) (quotation marks omitted).

Theoretically, we may someday see more Supreme Court 

decisions confirming and extending Bivens. Barring that unlikely 

event, for the time being the decision will remain on the judiciary’s 

equivalent of an endangered species list, just like its natural history 

analogue, the ivory-billed woodpecker. Both the decision and the 

bird are staring extinction in the face. 

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Meanwhile, rarity doesn’t foreclose false sightings. See Fields 

v. Fed. Bureau of Prisons, 109 F.4th 264 (4th Cir. 2024). In the recent 

Fields case, a divided Fourth Circuit panel extended Bivens to a new 

context, allowing a federal prisoner’s claims of excessive force in 

violation of the Eighth Amendment to proceed against individual 

prison officers. See id. at 267. A vigorous and cogent dissent 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 return the power to create new causes of 

action to the people’s representatives in Congress”). That “called 

on to decide Bivens” call may be coming if the panel decision in

Fields manages to duck en banc correction. Id. at 502.

Until then, determining whether a new Bivens claim can be 

recognized involves a two-step analysis. Egbert, 596 U.S. at 492. To 

begin the analysis, courts first “ask ‘whether the case presents a 

new Bivens context — i.e., is it meaningfully different from the 

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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 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 special-factors analysis “are separation-of-powers principles.” Hernandez, 589 U.S. at 102 (quotation 

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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 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. 

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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 leaves his failure to protect claim and his deliberate indifference to serious medical needs

claims.4 

3At 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 (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

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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 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 

insufficient. See, e.g., Roy v. Ivy, 53 F.4th 1338, 1351 (11th Cir. 2022); Singh v. 

U.S. Att’y Gen., 61 F.3d 1275, 1278 (11th Cir. 2009). We disagree. Johnson’s 

objections to the report and recommendation and discussion in his appellate 

briefs adequately challenge whether his deliberate indifference claims present 

a new context for Bivens claims. 

5 Johnson himself was a convicted inmate when the last two attacks

occurred. 

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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. 

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 

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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 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).

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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 housed. 511 U.S. at 829–30. Within 

two weeks she was beaten and raped by another inmate in her cell. 

Id. at 830. She sued multiple federal prison officials under Bivens

alleging that by placing her in the general population where she 

“would be particularly vulnerable to sexual attack” due to her 

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appearance, they acted with deliberate indifference to her safety. 

Id. at 829–31. The sole issue before the Supreme Court was how 

to define what constitutes deliberate indifference in the Eighth 

Amendment context. Id. at 829, 832. The Court’s entire discussion 

in Farmer revolved around resolving that one issue. See id. at 835–

47. The Court did not address whether a Bivens cause of action 

existed for the prisoner’s claim. See id. at 832–51. It was not an 

issue before the Court. See id. 

It is no wonder that the Court did not decide the Bivens issue 

in Farmer. It was not mentioned by either party at oral argument. 

See Transcript of Oral Argument, Farmer, 511 U.S. 825 (No. 92-

7247), 1994 WL 662567. It was not mentioned in either party’s 

briefs. See Brief for Petitioner, Farmer, 511 U.S. 825 (No. 92-7247), 

1993 WL 625980; Brief for Respondents, Farmer, 511 U.S. 825 (No. 

92-7247), 1993 WL 657282; Reply Brief for Petitioner, Farmer, 511 

U.S. 825 (No. 92-7247), 1994 WL 190959. It was not mentioned in 

the petition for certiorari. Petition for Writ of Certiorari., Farmer, 

511 U.S. 825 (No. 92-7247). And it was not mentioned in the 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 

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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 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 

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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 Bivens, but 

holding that the plaintiff did not plausibly allege a constitutional 

violation); Christopher v. Harbury, 536 U.S. 403, 405, 412 n.6 (2002) 

(holding that the complaint failed to state an actionable claim, and 

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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”); Tatev. 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 jurisprudence squarely forecloses [the 

plaintiff]’s argument that Farmer established a cognizable Bivens

context.”). We agree with the Third, Fourth, Seventh, and Ninth 

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Circuits’ holdings that Farmer did not create a Bivens remedy and 

thus cannot serve as a comparator case in the new context inquiry.6

As we have mentioned, Johnson does not contend that his 

failure to protect claim is similar to the claims in Bivens, Davis, or 

Carlson. Having put all of his argument eggs in Farmer’s basket, 

Johnson loses the first stage-issue of whether his failure to protect 

claim presents a new Bivens context. It does.

Instead of turning now to the second-stage issue involving

Johnson’s failure to protect claim, we will defer discussion of that

issue until we decide the first-stage issue involving the deliberate 

indifference claims. Doing so will enable us to address the secondstage issue involving both categories of claims together. 

B. Johnson’s deliberate indifference to serious medical 

needs claims present a new Bivens context

Johnson contends that his deliberate indifference claims are

sufficiently analogous to Carlson that they do not present a new 

Bivens context. We disagree. 

6 Johnson also argues that our opinion in Caldwell v. Warden, FCI 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.

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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 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 

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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. 

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

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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 features that were 

not considered in [Carlson] and that might discourage a court from 

authorizing a Bivens remedy” such as “the existence of alternative 

remedies”); Egbert, 596 U.S. at 492 (“[W]e have explained that a 

new context arises when there are ‘potential special factors that 

previous Bivens cases did not consider.’”) (quoting Ziglar, 582 U.S. 

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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 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. 

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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 that extent, the claims in the 

two cases are similar on their face. But the first-stage new context 

inquiry requires more than “superficial similarities.” Egbert, 596 

U.S. at 495; see Ziglar, 582 U.S. at 147–49 (holding that a claim that 

presented “significant parallels” to Carlson still presented a new 

context). 

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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 first-stage 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 context, a court may not recognize 

a Bivens remedy. Egbert, 596 U.S. at 492 (quotation marks omitted).

One notable special factor is the existence of an alternative 

remedial structure to remedy the harm the plaintiff has allegedly 

faced. “[I]f Congress already has provided, or has authorized the 

Executive to provide, an alternative remedial structure” to address 

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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 

“second-guess that calibration by superimposing a Bivens remedy.” 

Id.

Congress, through the Executive Branch, has authorized an 

alternative remedy that applies here: the BOP’s administrative 

remedy program. The Supreme Court has pointed that out. See

Malesko, 534 U.S. at 74 (finding that the BOP’s administrative remedy program was an appropriate alternative remedy to a Bivens 

claim). It’s not our place to “second-guess that calibration.” Egbert, 

596 U.S. at 498. 

Johnson contends that the BOP’s administrative remedy 

program should not be considered a sufficient alternative remedy 

for him, and hence not a special factor, because the district court 

found that he was denied access to the program. But whether the 

plaintiff himself was denied access to an alternative remedy is not 

the question. The question is “whether the Government has put 

in place safeguards to prevent constitutional violations from 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. 

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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 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 

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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 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. 

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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 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.”).

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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 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 

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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.

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