Whether the Supreme Court should recognize a Bivens cause of action for a prisoner's medical treatment claim involving non-life-threatening injuries in a federal detention center

No question identified. : attached as Exhibit A, and a copy of the order denying rehearing and opinions respecting and dissenting from that denial are attached as Exhibit B. There is good cause for the extension because the undersigned counsel has been heavily engaged with the press of other matters and requires additional time to prepare the petition. 1. This case arises out of a federal detention center’s response to injuries Kekai Watanabe allegedly suffered during a gang riot. In July 2021, Watanabe was attacked by rival gang members in Honolulv’s federal detention center, where he was being held pending sentencing. Ex. A at 6. During an evaluation that involved staff-nurse and applicant Francis Nielsen, Watanabe asked to be taken to a hospital to be treated for back pain. [bid. Nielsen examined Watanabe and concluded that, although Watanabe was in significant pain, his injuries did not call for transfer to a hospital. 7bid. After consulting another medical provider, Nielsen tried to alleviate Watanabe’s pain with painkillers and anti-inflammatory drugs and encouraged gentle stretching. Ex. A at 24-25 (Smith, J., dissenting); Ex. B at 22 (Smith, J., dissenting from denial in part). Several months later, Watanabe was diagnosed with a fractured coccyx. Ex. A at 7. 2. Watanabe filed a pro se complaint against Nielsen and other detentioncenter officials, asserting an Eighth Amendment claim for failure to provide adequate medical treatment under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Ex. A at 7. Nielsen moved to dismiss because Watanabe did not have a cause of action under Bivens.' The district court dismissed Watanabe’s claims, applying the test this Court set out in Egbert v. Boule, 596 U.S. 482, 492 (2022). Under Egbert, courts cannot recognize a Bivens cause of action without first asking “whether the case presents ‘a new Bivens context.’” Ibid. The context is new if it is “‘meaningfully’ different from the three cases in which the Court has implied a damages action,” ibid.— namely, Bivens itself, Davis v. Passman, 442 U.S. 228 (1979), and (most relevant here) Carlson v. Green, 446 U.S. 14 (1980). Second, if the context is new, courts must ask whether there is even a single “rational reason to think that” Congress is better positioned than courts to weigh the costs and benefits of a damages remedy. Egbert, 299 596 U.S. at 492. “If there is even a single ‘reason to pause’” at this second step, courts “may not recognize a Bivens remedy.” Ibid. The district court concluded that “Watanabe’s claim arises in a new context.” Ex. A at 17-18. The most closely analogous Bivens case to Watanabe’s was Carlson, which adopted a Bivens remedy for a starkly deficient response to a life-threatening medical emergency—one that resulted in an inmate’s on-the-scene death. The district court here found Watanabe’s claim arose in a “new” Bivens context for two reasons. First, there was an available, alternative remedy not considered in Carlson: 1 Upon screening Watanabe’s pro se complaint under 28 U.S.C. §1915, the district court dismissed the three other defendants. Ex. A at 7. Watanabe had access to the Bureau of Prison’s Administrative Remedy Program (“ARP”). Second, the nature and severity of Watanabe’s claimed injury were distinct from (and less extreme than) the claims for the life-ending injuries in Carlson. Under step two, the district court held Congress was better situated to address whether to extend Bivens to that new context. 3. The Ninth Circuit reversed, finding no relevant difference between this case and Carlson at step one of the Egbert analysis. Ex. A at 11. The court of appeals concluded that the existence of “alternative remedial structures” cannot be considered when deciding whether the context is “new”; such schemes, it held, are “to be considered at the second step of the Bivens analysis.” Ex. A at 18. The panel did not reach that second step, because it concluded the conte