Whether the Supreme Court should extend the Bivens remedy to a claim of deliberate indifference to medical needs by federal prison medical staff for a detainee's postoperative care

No question identified. : 2 1. Respondent was detained in the Metropolitan Correctional Center in Chicago -first as a pretrial detainee, then as a convicted prisoner. App., infra, 3a. While still a pretrial detainee, he underwent a surgery at an outside hospital to repair a hernia. Ibid. He claims that, once he returned to the detention facility, he began to experience severe pain and swelling in his groin. Ibid. He alleges that he told the facility’s clinical director, applicant Brij Mohan, of the pain and swelling, but that the medical staff provided inadequate care. Ibid. Respondent brought this suit in the U.S. District Court for the Northern District of Illinois. App., infra, 4a. He sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., and Dr. Mohan under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). App., infra, 4a-5a. He claimed that Dr. Mohan had violated the Eighth Amendment and Due Process Clause through deliberate indifference to his serious medical needs. Id. at 5a & n.1. The district court dismissed the complaint. App., infra, 5a. It dismissed respondent’s Bivens claims because they arise in a new context to which Bivens should not be extended. Ibid. And it determined that respondent’s FTCA claim was untimely. Ibid. 2. The Seventh Circuit reversed and remanded. App., infra, la-45a. The court of appeals concluded that respondent’s Bivens claim could proceed under Carlson v. Green, 446 U.S. 14 (1980), a case 3 in which this Court had allowed a Bivens action claiming that a prison’s medical staff had exhibited deliberate indifference to and had mistreated a prisoner’s life-threatening asthmatic attack. App., infra, 8a. The court stated that, because respondent’s claims “arise from allegedly constitutionally inadequate medical 7 care in a federal prison,” “his claims fit squarely within the Bivens claim recognized by Carlson.” Ibid. The court rejected applicants’ contention that this case meaningfully differs from NG Carlson because it “involves inadequate postoperative care, not an 7 acute medical emergency,” and because respondent “was a pretrial detainee for part of his time and medical care” at the facility. Id. at 10a. The court of appeals then reversed the district court’s dismissal of respondent’s FTCA claim as untimely. App., infra, 17a35a. It determined that respondent had adequately pleaded facts that could support equitable tolling. Id. at 33a. Judge Kirsch concurred in part and dissented in part. App., infra, 36a-45a. Unlike the majority, Judge Kirsch agreed with applicants’ arguments that this case arises in a new context to which Bivens should not be extended. Id. at 36a-44a. But like the majority, he concluded that the dismissal of the FTCA claim as untimely was premature, given the possibility of equitable tolling. Id. at 44a-45a. The court of appeals denied applicants’ petition for panel rehearing and rehearing en banc. App., infra, 46a. 4 3. The issues raised by this case overlap with the issues raised by the pending petition for a writ of certiorari in Nielsen v. Watanabe, No. 25-417 (filed Oct. 3, 2025). In that case, the Ninth Circuit relied on Carlson to sustain a Bivens action brought by a prisoner who alleged that prison medical staff had provided inadequate medical care after he had sustained severe injuries in a prison fight. See Pet. App. at 2a, Nielsen, supra (No. 25-417). The petition in Nielsen presents the question whether the Ninth Circuit erred in recognizing a Bivens action. See Pet. at i, Nielsen, supra (No. 25-417). The Solicitor General has not yet determined whether to file a petition for a writ of certiorari in this case. The additional time sought in this application is needed to continue consultation within the government, to assess the legal and practical impact of the court of appeals’ decision, and to evaluate the overlap between this case and Nielsen. Additional time is also needed, if a