Nielsen v. Watanabe

This case concerns the judicially created damages remedy first recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971). In Carlson v. Green , 446 U.S. 14 (1980), the Court extended Bivens to an Eighth Amendment claim of deliberate indifference to medical needs where prison officials failed to address an inmate's acute asthma attack and exacerbated it, causing his death on-site within hours. Since then, this Court has emphasized that the creation of damages actions rests with Congress, not courts. The judicially created Bivens remedy thus cannot be ex-tended to any "new Bivens context" if any "special factor counsel[s] hesitation" in doing so. Ziglar v. Abbasi , 582 U.S. 120, 139-140 (2017). "[T]he new-context inquiry is easily satisfied," encompassing cases with '"meaningful[ly]"' different facts, or "'potential special factors' "-including "alternative remedial structures"-" 'not consider[ed]"' in the Court's prior cases. Egbert v. Boule , 596 U.S. 482, 492-493 (2022). "[A] court may not recognize a Bivens remedy" if "there is any reason to think that Congress might be better equipped to create a damages remedy." Id . at 492. In this case, respondent alleged that he suffered a fractured coccyx in a prison gang fight, causing chronic pain, but was not sent to a hospital. The Ninth Circuit held the suit did not present a "new" context from Carlson -not-withstanding an alternative remedial scheme this Court did not consider in Carlson , and despite significant factual differences such as the immediacy and severity of the harm alleged. The question presented is: Whether the Ninth Circuit here erred in recognizing a Bivens cause of action.

Kekai Watanabe was a federal detainee at the Federal Detention Center in Honolulu when, in July 2021, rival gang members attacked him during a prison riot. After staff restored order, prison officials documented his visible injuries and placed him on sick call. Later that day, Watanabe told correctional officers he had headaches and pain and asked to see medical staff. He eventually described his condition to Francis Nielsen, a staff nurse at the facility, who denied his request to go to the hospital. Officials gave Watanabe over-the-counter pain medication. Months later, doctors diagnosed Watanabe with a fractured coccyx with bone chips in surrounding soft tissue, and prison officials agreed to refer him to a specialist. Watanabe then filed a pro se lawsuit alleging that Nielsen and others violated his Eighth Amendment rights by denying him adequate medical care and refusing to send him to the hospital, seeking $3 million in damages and injunctive relief. The district court dismissed Watanabe’s complaint, holding that his claim arose in a new Bivens context distinct from Carlson v. Green because he had access to an alternative administrative remedy—the Bureau of Prisons’ Administrative Remedy Program—that the Supreme Court had not considered in Carlson, and because his non-fatal injury differed meaningfully from the fatal asthma emergency in Carlson. A divided panel of the U.S. Court of Appeals for the Ninth Circuit reversed, holding that the availability of alternative remedies did not render the context new and that Carlson governed; the Ninth Circuit then denied rehearing en banc over eleven judges’ dissents.