[ 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., USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 1 of 432 Opinion of the Court 23

- 11394

Defendants.

____________________ Appeal from the United States District Court for the Northern District of Georgia

D.C. Docket No. 1:18

- cv

- 01899

- AT

____________________ Before B RANCH , G RANT , and E D C ARNES , Circuit Judges.

E D C ARNES , 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 denyingthe petition for rehearing en banc is issued, a panel retains authority to modify its decision and opinion.” ). And that is what we n ow 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 2 of 4323

- 11394 Opinion of the Court 3
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 11 th 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 s ought money damages from federal prison offic ials , 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 d ecided that “in all but the most unusual circumstances,” we should not use Bivens to recognize new constitutional

- claim causes of action for damages against federal officials

. See Egbert v. Boule , 596 U.S. 482, 486 , 49 1 (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
, ” i d. at 486

. The claims Johnson has asserted would require new Bivens c auses of action , which we are forbidden to create except in the “most unusual circumstance s ,” if then. Id. at 486. I. Facts and Procedural History
La Q uan Johnson is a federal prisoner who was housed at the United States Penitentiary in Atlanta, Georgia , which we’ll call USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 3 of 434 Opinion of the Court 23

- 11394

USP

- Atlanta
, from September 2015 to April 2019. He was a pretrial detainee until he was tried and convicted on April 14, 2017. 1 According to USP

- Atlanta ’s policy while Johnson was housed there
, pretrial detainees and convicted inmates were usually housed in separate units

. I n 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 , b ut 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

. J ohnson complained to Terry that Phillip was not supposed to be housed in a pretrial unit , but she ignored hi s complaint

. A week later, Phillip got into an argument with Lewis Mobley
, a different pretrial detainee house d 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). W hat 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)

. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 4 of 4323

- 11394 Opinion of the Court 5
Johnson intervened to try and keep the two from fighting

. That resulted in Phillip hitting Johnson and push ing him into a toilet, which fractured bones in Johnson’s right hand (the first attack)

. L ater that day Johnson went to “ h ealth s ervices ,” 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 g a ve him ibuprof e n

. 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 the ir 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.

I n 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 5 of 436 Opinion of the Court 23

- 11394

h ealth s ervices 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

. I n April 2018 Johnson was once again attacked by another inmate (the third attack ) . He says t hat 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. T he 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 wa s wired shut. Johnson contends that Carolina Garcia , a kitchen supervisor, was in charge of giving him his liquid diet , and she pro vided 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. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 6 of 4323

- 11394 Opinion of the Court 7
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

. H e then explained his predicament t o

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 ” remain ed 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 7 of 438 Opinion of the Court 23

- 11394

sa w Dr. Nwude walking through the unit, the doctor refused to talk to him. At the time he filed th is lawsuit, Johnson still walk ed 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 B OP uses a four

- level administrative remedy program

. The purpose of the pro gram “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 pr ogram ] 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 infor mal 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. § USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 8 of 4323

- 11394 Opinion of the Court 9
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 th at when he was eventually able to obtain and file grievance forms
, he did not receive a ny response. Johnson also testified t hat “if you get no response it [ ’ ] s like a denial,” so he then appeal ed th ose “ denial s

. ” But he says that when he filed an appeal, he would be notified that h e had failed to comply with an earlier step in the four

- level pro gram

. Johnson claims that the officers at USP

- Atlanta purposefully sabotage d his grievance s , by either : (1) failing to file his initial grievances; (2) fail ing to return the responses to his grievances so that ifJohnson 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 un timely

. Johnson filed suit in federal district court, br inging failure to protect, deliberate indifference, and excessive force claims against a number of officers
, medical staff , and an employee at USP

Atlanta. The defendants filed a motion to dismiss his complaint for failure to exhaust his administrative remedies because he did not comply with the BOP’s administrative remedy pro gram before USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 9 of 4310 Opinion of the Court 23

- 11394 filing his complaint. The district court denied the motion without prejudice and provided the parties with a limited discovery period to determine whether Johnson had exhausted his administrative remedies. After discovery closed, the defendants renewed t heir motion to dismiss. The magistrate judge assigned to the case foundthat 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 cou rt adopted that report and recommendation and denied the motion

. After additional discovery t he 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’ motion s for summary judgment because his Bivens claims presented a new context and special factors counseled against extending Bivens to that new context. The district courtagreed and granted the defendants’ motions for summary judgment , concluding that Johnson’s claims did not entitle him to a Bivens r emedy

. Johnson appeals that judgment

. II. Bivens Law Through the Years and Today
C laims 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 allow ed an injured person to sue for money damages claiming that a state official USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 10 of 4323

- 11394 Opinion of the Court 11

had violate d his constitutional rights

. Congress has never enacted

a corresponding statute pro vi ding 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, i n Bivens , the Supreme Court created for the first time a n 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 C ourt concluded that it had th e 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 a gainst 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 , t he 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. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 11 of 4312 Opinion of the Court 23

- 11394

I n 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 . . . acc used 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) ; USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 12 of 4323

- 11394 Opinion of the Court 13
Ziglar , 582 U.S. at 125, 146 ( declining to extend Bivens to conditions

of

- confinement claim against group of executive officials); Hernandez v. Mesa , 589 U.S. 93, 96

– 97 (2020) (declining to recognize Bivens remedy for cross

- border shooting by border patrol agent); Egbert
, 596 U.S. at 486 (declining to allow excessive force and First Amendment retaliation Bivens claims against a U.S. Border Patrol agent to proceed)

. The Supreme Court has explained that its nearly complete about

- face in the Bivens area after Davis and Carlson results from it s 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 “ i t 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 b ecause the power to create causes of action is legislative, “[i ]nmost 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 13 5

– 3 6 (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). USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 13 of 4314 Opinion of the Court 23

- 11394Creating causes of action involves complex policy considerations, including “ economic and governmental concerns, administrative costs, and the impact on governmental operations systemwide.” Egbert , 596 U.S at 491 (quotation marks omitted). The ability of courts to weigh those considerations is “at best, uncertain

. ” Id. Thus “recognizing a cause of action under Bivens ” outside of the three contexts already allowed by the Supreme Court

“ is a disfavored judicial activity” and should be avoided “in all but the most unusual circumstances.” Id. at 486, 491 (quotation marks omitted)

. Judging from the Court’s decisions in the last four

- and

a

- half decades, those “most unusual circumstances” are as rare as the 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 f rom 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)

. B ut 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 14 of 4323

- 11394 Opinion of the Court 15 Remarkably, t he 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 o ther words
, today the Court would decide the Bivens case , as we ll 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. ”)

. T he Supreme Court has been clear , however, that it has not yet overruled the Bivens decision insofar as th e decision itself goes

. S ee 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

ornithologist s 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 , E COLOGY AND E VOLUTION (May 18, 2023), https://doi.org/10.1002/ece3.10017

. If that’s true, the number of the birds that exist will exactly match the number of Supreme Court decisions that have confirmed and applied Bivens in the last forty

- three years: three live ivory

billed woodpeckers and three live Bivens decisions. A coincidence of rarity. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 15 of 4316 Opinion of the Court 23

- 11394
(“[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 Bivenscannot be defended. We have cabined the doctrine’s scope, undermined its foundation, and limited its precedential value. It is timeto 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, w e recently refused to extend Bivens to a Fourth Amendment excessive USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 16 of 4323

- 11394 Opinion of the Court 17 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)

. W e are not the only court to have taken to heart what the Supreme Court has said on th is subject. All of o ur sister circuits have also stressed the need for caution , hesitancy, and reluctance when it comes to extending the Bivens decision

. See Gonzalez v. Velez , 864 F.3d 45, 52 (1st Cir. 2017) (“While the boundaries of Bivens

type liability are hazy, the Supreme Court .

. . [has] made plain its reluctance to extend the Bivens doctrine to new settings.”); Doe v. Hagenbeck , 870 F.3d 36, 43 (2d Cir. 2017) (acknowledging that “[t]he Court has . . . made clear that it is reluctant to extend Bivens liabilityto 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.”) ; Cant ú 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 17 of 4318 Opinion of the Court 23

- 11394Constitution, ‘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 ex tend 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. B oth the decision and the bird are staring extinction in the face. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 18 of 4323

- 11394 Opinion of the Court 19
Meanwhile, r arity 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 extend ed 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 warni ngs 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 5 02; see also id. at 50 2

– 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 “ call ed 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, d etermining 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 19 of 4320 Opinion of the Court 23

- 11394 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 m ight differ in . . . meaningful way[s] because of the rank of the officers involved; the constitutionalright 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 thefunctioning 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 th is special

- factors analysis “are separation

- of

- powers principles.” Hernandez
, 589 U.S. at 102 (quotation USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 20 of 4323

- 11394 Opinion of the Court 21
marks omitted)

. The inquiry focus es 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).
Th at 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 specialfactors 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).

I II

. 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

. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 21 of 4322 Opinion of the Court 23

- 11394

But the first of those claims is not properly before us. Johnson d id not mention his excessive force claim in any of his briefing or otherwise make any arguments about it on appeal. So t hat claim is abandoned. See Sapuppo v. Allstate Floridian Ins. Co. , 739 F.3d 678, 681 (11 th Cir. 2014) ( concluding that a claim not adequately briefed was abandoned, explaining : “A party fails to adequately brief aclaim 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

3 At oral argument, Johnson contended that he had raised his excessive force claim in his briefs to this Court by arguing that special factors did not preclude exten ding Bivens to all of his claims, including his excessive force one

. But in his brief s Johnson never discusse d the excessive force claim specifically and only refer red 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 a fter the defendants asserted in their response brief that Johnson had abandoned th e excessive force claim by not raising it
, he d id not address that claim or the a bandonment 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 68 1 ; 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 22 of 4323

- 11394 Opinion of the Court 23
In his complaint, Johnson assert ed 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 a rise 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 alleg e s that he informed the two of them that he was being housed with convicted inmatesin violation of BOP policy, but they did nothing to correct the situation, which led to Johnson being attacked by convicted inmates three times: i n 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

. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 23 of 4324 Opinion of the Court 23

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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 context s . 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 c ause of action

. I n 2017 the Court s tated in Ziglar , that “[t]hese three

cases

— Bivens , Davis , and Carlson

— represent the only instances inwhich the Court has approved of an implied damages remedy under the Constitution itself.” 582 U.S. at 131 (emphasis added)

. Thatthose 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 24 of 4323

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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 200 1

. S ee 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 omi ssion 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)

. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 25 of 4326 Opinion of the Court 23

- 11394 Johnson argues that the Supreme Court’s failure to include Farmer in any of its listings of Bivens decisions is not determinative because the Court has told us not to “conclude [its] more recent cases have, by implication, overruled an earlier precedent.” 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 decision s .” 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

. Th at 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. A t 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 2 7

– 2 9

. 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. W ithin 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 26 of 4323

- 11394 Opinion of the Court 27 appearance, they acted with deliberate indifference to her safety

. Id. at 829

– 31. The sole issue before the Supreme Court was how to define what constitutes deliberate indifference in the Eighth Amendment context

. Id. at 82 9 , 832 . The Court ’s entire discussion in Farmer revolved around resolving that one issue. See i d. at 835

– 4 7 . 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 Arg ument , Farmer , 511 U.S. 825 (No. 92

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

. See Br ief for Pet itioner , Farmer , 511 U.S. 825 (No. 92

- 7247), 1993 WL 625980; Br ief for Resp ondents
, Farmer , 511 U.S. 825 (No.
92

- 7247), 1993 WL 657282; Reply Br ief for Pet itioner , Farmer , 511 U.S. 825 (No. 92

- 7247), 1994 WL 190959. It was not mentioned in the petition for certiorari. Pet ition for Writ of Cert iorari

. , Farmer , 511 U.S. 825 (No. 92

- 7247). And it was not mentioned in the opinion of t he 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 be en

. T he 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 27 of 4328 Opinion of the Court 23

- 11394 brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedent.”) (quotation marks omitted) ; Brecht v. Abrahamson , 507 U.S. 619, 631(1993) (holding that the Court is not bound by assumptions in 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 “didnot 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 Courtoften 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 28 of 4323

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raise the questions.” Verdugo

- Urquidez , 494 U.S. at 272 (citation s 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 8 8 1, 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 dismiss al of t he claim on qualified immunity grounds ); Reichle v. Howards , 566 U.S. 658, 663 n.4 (2012) (same , except reversing the denial of summary judgment fo r 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 29 of 4330 Opinion of the Court 23

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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 th o se 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.
O ur sister circuits t hat 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 “t hat plaintiffs cannot invoke Bivens by analogizing their cases to Farmer” because the Supreme Court hasn’t recognized Farmer as a Bivens action and “[a] lthough it might not have seemed so before, the Egbert Court has now made it clear that Bivens , Davis , and Carlson are the only three cases in which the Supreme Court has recognized a constitutional damages action against federal officials ”); Tate v. Harmon , 54 F.4 th 839, 847 (4th Cir. 2022) (“[W]hile the Co urt allowed the action [in Farmer] to proceed, it never addressed whether the claim was properly a Bivens claim.”); Sargeant , 87 F.4 th at 36 5 (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.4 th 1027, 1030

– 31 (9 th 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 30 of 4323

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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 conte nd t hat his failure to protect claim is similar to the claims in Bivens , Davis , or Carlson

. Having put all of his argument eggs in Farmer ’s basket, Johnson loses the first stage

- issue of whether his failure to protect claim presents a new Bivens context

. It does. Instead of turning now to the second

- stage issue involving Johnson’s failure to protect claim , we will defer discussion of that issue until we decide the first

- stage issue involving the deliberate indifference claims. Doing so will enable us to address the second

stage issue involving both categories of claims together.

B. Johnson’s d eliberate i ndifference to s erious m edical

n eeds claims present a new Bivens context Johnson c ontends that his deliberate indifference clai ms 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 2 4

– 2 6

. 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

– 2 9

. We also note that Caldwell predate s the Supreme Court’s decision in Egbert

. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 31 of 4332 Opinion of the Court 23

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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 : k ept [the prisoner] in that facility against the advice ofdoctors, 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 claim s were cognizable because there w ere 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 C ourt 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 32 of 4323

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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 t he 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 C ourt 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 33 of 4334 Opinion of the Court 23

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context. First, Johnson’s claim based on the medical care he received after being attacked by Phil l ip is predicated on a different constitutional right than the one in Carlson ( Fifth Amendment instead of Eighth Amendment)

. That alone is enough for th e 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 t h at 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 t he 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 th e 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. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 34 of 4323

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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

– 4 3 , we ask whether any alternative remed y exist s 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 J ohnson’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 “predate s our current approach to implied causes of action and diverge s from theprevailing 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)

. A s we will discuss in more detail later, alternative remedies existed for prisoners in Johnson’s position besides bringing a Bivens action, n amely submission of a grievance form though the BOP administrative remedy pro gram

. See infra at 3 7

– 4 3 ; Malesko , 534 U.S. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 35 of 4336 Opinion of the Court 23

- 11394 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 remed y 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 analy tical framework
, Johnson’s case is different from Carlson

. Also relevant is the fact that the injury in this case is different from th e 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

. T he severity , type, and treatment of Johnson’s injuries differ significantly from those of the p risoner 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 depriv ation of “medically necessary assistance
, ” including the treatment prescribed by a doctor. T o that extent, t he claims in the

two cases are similar on their face. But the first

- stage new context inquiry requires more than “superficial similar ities

. ” Egbert , 596 U.S. at 495; s ee Ziglar , 582 U.S. at 147

– 4 9 (holding that a claim that presented “significant parallels” to Carlson still present ed a new context). USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 36 of 4323

- 11394 Opinion of the Court 37

We look at whether the two cases have any relevant differences, not whether the y 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 e ven s mall differences can “easily s atisf [y]” the

new context inquiry so long as they are meaningful

. S ee id. at 14 9. 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. T he severity, type, and treatment of Johnson’s injuries were different from those of the plaintiff in Carlson. Those differences make th is a new context under the first

- stage inquiry

. C. S pecial f actors argue against e xtending Bivens to th is 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 hesitat e before extending Bivens to th ose new context s

. “ 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 structur e 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 37 of 4338 Opinion of the Court 23

- 11394 a plaintiff’s allegations, there is no need for an additional Bivens remedy

. Id . at 493 (quotation marks omitted). I n other words, i f the re 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. C ourts are not to “second

- guess that calibration by superimposing a Bivens remedy.” Id. Congress , through the Executive B ranch
, has authorized an alternative remedy that applies here : t he BOP’s administrative remedy pro gram

. The Supreme Court has pointed that out. See Malesko
, 534 U.S. at 74 (finding that the BOP’s administrative remedy pro gram 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 pro gram 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 t he program

. But w hether the plaintiff himself wa s 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) (quotati on marks omitted) ; s ee 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. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 38 of 4323

- 11394 Opinion of the Court 39

at 49 7 ( declining to create a Bivens remedy because “ C ongress 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 w hether we think t he a dministrative remed y pro gram 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 remed ial process in place that is intended to redress the kind of harm faced by those like the plaintiff

. And there is one here

. T he BOP’s administrative remedy program. Egber t makes clear that an alternative remedy need not satisfactorily address every p laintiff’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 ha d “never held that a Bivens alternative must afford rights to participation or appeal.” Id. at 497

– 98. B ecause “ Bivens is concerned solely with deterring the unconstitutional acts of USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 39 of 4340 Opinion of the Court 23

- 11394
individual officers,” the purpose of the alternative remedy special factor analysis is to avoid encroaching on a process or remedy that Congress or the Executive ha s 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 E xecutive B ranch put the BOP administrative remedy pro gram in place to address prisoner grievances, including those involving alleged constitutional violation s. 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 E xecutive B ranch found that remedial process t o be appropriate and adequate

. We cannot second

- guess th at judgment and superimpose

a Bivens remedy on top of the administrative remedy , w hich would allow prisoners to bypass the grievance process

. See Egbert , 596 U.S. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 40 of 4323

- 11394 Opinion of the Court 41

at 497

– 98. Although Johnson believes he was , in essence, not a llowed to access the grievance proce dure, 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 t hat the plaintiffs in those cases were actually able to take advantage of the relevant grievance procedure
, those decisions establish that an alternative remed ial 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 E xecutive B ranch 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 ma de clear that i s not a requirement. See supra at 3 8

– 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] h ere 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.”). USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 41 of 4342 Opinion of the Court 23

- 11394

T he 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. Th is 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, orhas 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 disrup t a remedial scheme, or whether thecourt should provide for a wrong that would otherwise go unredressed

. Nor does it matter that existing remedies do not provide complete relief. Rather, thecourt must ask only whether it, rather than the politi cal 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 USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 42 of 4323

- 11394 Opinion of the Court 43

inmates. And it is in place. T hat by itself is “a single reason to pause before applying Bivens” in th e 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 4 92 (quotation marks omitted)

. W e 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 E xecutive B ranch. 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. USCA11 Case: 23-11394 Document: 50-1 Date Filed: 10/03/2024 Page: 43 of 43