United States Court of Appeals For the First Circuit

No. 24-1355

BROC T. WALTERMEYER,

Plaintiff, Appellant,

v.

ROBERT HAZLEWOOD, Warden, FCI Berlin; DIANE L. KISLER, Physician, FCI Berlin,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Landya McCafferty, U.S. District Judge]

Before

Montecalvo, Circuit Judge, Breyer,* Associate Justice, and Lynch, Circuit Judge.

Samuel Weiss, with whom Rights Behind Bars was on brief, for appellant. Jaynie Lilley, Appellate Staff Attorney, Civil Division, with whom Sarah Carroll, Appellate Staff Attorney, Civil Division, and Brian M. Boynton, Principal Deputy Assistant Attorney General, United States Department of Justice, were on brief, for appellees.

May 6, 2025

* Hon. Stephen G. Breyer, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. LYNCH, Circuit Judge. The dispositive question in this

appeal is whether this Eighth Amendment claim for damages against

a federal Bureau of Prisons ("BOP") doctor and warden asserted by

Broc Waltermeyer, an incarcerated federal inmate, alleging

inadequate medical treatment presents a new context and so is

meaningfully different from the claim asserted in Carlson v. Green,

(1980). Applying Egbert v. Boule,

(2022),

and Ziglar v. Abbasi,

(2017), we affirm dismissal of

this case, albeit on different reasoning than used by the district

court. See Waltermeyer v. Warden,

(D.N.H.

2024).

I.

In Egbert v. Boule and Ziglar v. Abbasi and other cases,

the Supreme Court has instructed that judicially created damages

causes of action for alleged constitutional violations must be

dismissed if the claim arose in a new context than the prior cases

which had judicially created such a claim. See Egbert,

; Ziglar,

. The Supreme Court had recognized

damages claims against federal officials for alleged

constitutional violations in three earlier cases: Carlson, Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics,

(1971), and Davis v. Passman,

(1979). In

more recent years, the Court has stated that "expanding the Bivens

[claim] is now a 'disfavored' judicial activity," Ziglar, 582 at

- 2 - 135 (quoting Ashcroft v. Iqbal,

(2009)), and

that "Bivens, Davis, and Carlson were the products of an era when

the Court routinely inferred 'causes of action' that were 'not

explicit' in the text of the provision that was allegedly

violated," Hernández v. Mesa,

(2020) (quoting

Ziglar,

). The Supreme Court has not recognized a

Bivens-type claim since Carlson in 1980. Since then, the Court

has "consistently rebuffed requests to add to the claims allowed

under Bivens," Hernández,

, explaining that it

"ha[s] come 'to appreciate more fully the tension between'

judicially created causes of action and 'the Constitution's

separation of legislative and judicial power,'" Egbert,

(quoting Hernández,

). See, e.g., Bush v.

Lucas,

(1983); FDIC v. Meyer,

(1994);

Wilkie v. Robbins,

(2007).

The Supreme Court has structured the analysis we must

apply to determine whether Waltermeyer's claims present a new

context. We first ask whether the claim presents "'a new Bivens

context' -- i.e., is it 'meaningful[ly]' different" from whichever

of Bivens, Carlson, or Davis is most similar to the case at hand.

Egbert,

(quoting Ziglar,

); see

also Hernández,

. The Court has explained:

Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some

- 3 - examples might prove instructive. A case might differ in a meaningful way 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.

Ziglar,

. Using these "instructive" "examples,"

our discussion in the instant case focuses on the third through

seventh examples.

.

Egbert also requires us to ask whether "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,

(quoting Ziglar,

). This includes

"sound reasons to think Congress might doubt the efficacy or

necessity of a damages [claim]," and "if we have reason to pause

before applying Bivens in a new context . . . we reject the

request." Hernández,

(first quoting Ziglar,

). Egbert further held that "[w]hile our cases describe

two steps, those steps often resolve to a single question: whether

there is any reason to think that Congress might be better equipped

to create a damages [claim]." Egbert,

.

- 4 - The parties agree that Carlson is our comparison case.

Carlson recognized a Bivens-type Eighth Amendment claim against

federal prison officials alleging those officials showed

deliberate indifference to the plaintiff's life-threatening

asthma-related medical needs, including by keeping him in a

facility despite knowing that its medical facilities were grossly

inadequate to his needs, acting against the advice of doctors by

failing to provide medical treatment for several hours after he

suffered an asthma attack, and then administering medically

contraindicated drugs which worsened his condition. Carlson,

n.1. The officials then attempted to use a respirator

that was known to be inoperative, which further impeded his

breathing, and delayed his transfer to an outside hospital,

resulting in the plaintiff's death.

As the Court explained:

More specifically, respondent alleged that petitioners, being fully apprised of the gross inadequacy of medical facilities and staff at the Federal Correction Center in Terre Haute, Ind., and of the seriousness of Jones' chronic asthmatic condition, nonetheless kept him in that facility against the advice of doctors, failed to give him competent medical attention for some eight hours after he had an asthmatic 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. The complaint further alleges that Jones' death resulted from these acts and omissions, that petitioners were deliberately indifferent to Jones' serious

- 5 - medical needs, and that their indifference was in part attributable to racial prejudice.

Carlson,

n.1.

II.

"We do not credit legal labels or conclusory statements,

but rather focus on the complaint's non-conclusory,

non-speculative factual allegations and ask whether they plausibly

narrate a claim for relief." Cheng v. Neumann,

(1st Cir. 2022). "'[W]e recount the underlying facts as alleged

in the complaint,' but 'disregard any conclusory allegations.'"

Analog Techs., Inc. v. Analog Devices, Inc.,

(1st

Cir. 2024) (first quoting Shash v. Biogen, Inc.,

(1st Cir. 2023); then quoting Ponsa-Rabell v. Santander Sec. LLC,

, 30 n.2 (1st Cir. 2022)). We review the district

court's dismissal order de novo. Douglas v. Hirshon,

(1st Cir. 2023).

Waltermeyer's operative complaint alleges he received

inadequate medical treatment while incarcerated at the Federal

Correctional Institute in Berlin, New Hampshire from May 2018

through July 2019. Afterwards, he was transferred to a different

federal correctional facility, FCC Coleman Low. He remains

incarcerated at the time of this appeal. In September 2018,

Waltermeyer requested diagnostic imaging for his chronic knee

pain. His doctor at FCI Berlin, defendant Dr. Kistler, honored

- 6 - his request; she requested and obtained approval for an MRI, which

was conducted a little over two months later. Waltermeyer attached

his MRI results to his initial pleading such that they are included

in the operative complaint. The MRI results state that Dr. Kistler

reviewed them, and they include handwritten notes saying, "no

surgery needed," "physical therapy," and "ultimate solution: knee

total replacement." The notes also read: "interim solution [:]

(1) chondroitin sulfate and glucosamine supplements (2) knee

bracing (3) no sports or weightlifting (4) pendulum exercises 2 x

1 day - 50 reps (5) on . . . lam [sic] for pain." Waltermeyer

admits that Dr. Kistler told him that an outside specialist

recommended deferring the knee surgery until he was older. Having

reviewed the results of the MRI, Dr. Kistler declined to order

surgery at that time but provided non-surgical alternative

treatments for his knee condition, and these choices are at the

heart of Waltermeyer's operative complaint. In Waltermeyer's

view, "[t]he reward outweighs the risk of surgical knee

replacements irrespective of Plaintiff's age, or related

conditions," and the denial of surgery makes his case like Carlson.

Waltermeyer concedes that he received multiple types of

non-surgical medical treatments to address his knee condition.

These treatments included bi-annual cortisone injections (although

he wanted to receive the injections every month), pain medication,

special shoes, knee braces, access to a low bunk, and a cane.

- 7 - Waltermeyer alleges he nonetheless continued to be in pain and

alleges that Dr. Kistler's frequent response to his complaints

was, "you just got[ta] deal with the pain" or "[you] just ha[ve]

to get use[d] [to] the pain."

Waltermeyer filed a pro se complaint and a motion for a

preliminary injunction requiring the defendants to provide him

with his desired medical care (as relevant here, knee surgery) on

March 6, 2019, against Dr. Kistler and the FCI Berlin warden,

Robert Hazlewood.1 The defendants filed a motion to dismiss and

opposed the motion for a preliminary injunction. The district

court denied the motion for a preliminary injunction on the

magistrate judge's recommendation that the motion was moot because

Waltermeyer had been transferred to a different facility such that

the defendants, both FCI Berlin officials, were no longer

responsible for his care. Waltermeyer then amended his complaint

to seek only money damages. In light of his filings and the BOP

records he attached to them, defendants filed a new motion to

dismiss. The district court dismissed the complaint, holding that

Waltermeyer's claims failed because he had an alternative

1 Waltermeyer initially brought other claims related to allegedly inadequate treatment for Hepatitis C and a lipoma. He dropped both claims after receiving further treatment. Waltermeyer also originally named several unnamed defendants who the district court later dismissed. None of those claims or defendants are at issue in this appeal.

- 8 - administrative remedy. See Waltermeyer, 720 F. Supp. 3d at 101.

This timely appeal followed.

We do not engage, as appellees suggest, in an analysis

of whether Waltermeyer's operative complaint, which never mentions

policy, fails on "policy" grounds. Rather, we hold that factual

and legal differences make Waltermeyer's case "meaningfully

different" from Carlson. Waltermeyer's complaint is "meaningfully

different" under the analyses required by both Ziglar and Egbert.

To be clear, if we found that this case was the same as Carlson,

we would be bound by Carlson, which remains good law, unless and

until the Supreme Court overrules it.

III.

Waltermeyer's primary arguments are that his case is not

"meaningfully different" from Carlson because:

(1) he brings his claim under the Eighth Amendment alleging cruel

and unusual punishment through inadequate medical care at a federal

prison,

(2) the defendant prison doctor and prison warden are of no higher

rank than those in Carlson, and

(3) his claim is of personal injury involving "direct harm . . .

to an individual in [their] care."

Binding Supreme Court and First Circuit precedent is clear that

Waltermeyer's arguments fail. As Hernández explained, "[a] claim

may arise in a new context even if it is based on the same

- 9 - constitutional provision as a claim in a case in which a damages

[claim] was previously recognized." Hernández,

.

And in Quinones-Pimentel, we held that a claim arose in a new

context because the facts regarding law enforcement acts that

allegedly violated the plaintiff's Fourth Amendment rights were

meaningfully different from the facts alleged in its comparison

case, Bivens. Quinones-Pimentel v. Cannon,

, 70-71

(1st Cir. 2023); see also Egbert,

(instructing

that while the facts at issue there "involve[d] similar allegations

of excessive force and thus arguably present 'almost parallel

circumstances' [to Bivens] . . . these superficial similarities

are not enough to support the judicial creation of a cause of

action." (quoting Ziglar,

)). Here, we see a

distinction between the alleged deliberate indifference, denial of

care, and provision of contraindicated care alleged in Carlson and

Waltermeyer's allegation that he received substantial treatment,

but not the treatment he preferred.

The Court had made this clear even before the Ziglar-

Hernández-Egbert trilogy. In Correctional Services Corp. v.

Malesko,

(2001), the plaintiff was a federal inmate

housed in a facility operated by a private corporation, and he

brought a Bivens-type action against the corporation for providing

inadequate medical care for his heart condition in violation of

the Eighth Amendment.

. The Court held that the

- 10 - claim, an Eighth Amendment claim against prison officials for

inadequate medical care, was dissimilar to Carlson and that no

Bivens action existed. It reasoned: "[t]he purpose of Bivens is

to deter individual federal officers from committing

constitutional violations," and because the defendants were not

individual federal officers, the claim was an extension of Bivens.

. The Court emphasized that "[t]he caution towards

extending Bivens remedies into any new context, a caution

consistently and repeatedly recognized for three decades,

forecloses such an extension here."

(emphasis added).2

We hold that Waltermeyer's claims are meaningfully

different from those at issue in Carlson because here:

1. The prison officials were not on notice of any gross inadequacy

in medical care at FCI Berlin, nor does the complaint here allege

gross inadequacy of medical care.

2. The medical procedures administered by the medical staff under

the warden's supervision were not contrary to medically advised

procedures.

2And in Minneci, the Court held that no Bivens claim existed where "a federal prisoner s[ought] damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amount[ed] to a violation of the Eighth Amendment, and where that conduct [wa]s of a kind that typically falls within the scope of traditional state tort law." Minneci v. Pollard,

(2012).

- 11 - 3. To the contrary, Waltermeyer alleges he received numerous

treatments and accommodations to treat his condition, and the

procedures and treatments provided were in accordance with

doctors' recommendations. In particular, unlike in Carlson, where

both the lack of treatment and several of the treatments

administered were medically contraindicated, there are no such

allegations here. Waltermeyer's MRI results indicated that no

knee replacement surgery was needed at the time he requested it.

This case involves not the denial of care but the timing of medical

treatments which were in accord with doctors' instructions.

4. Waltermeyer did receive from the defendant officials medical

treatments for his knees which helped alleviate his pain. He was

also provided treatment in the form of cortisone shots, pain

medication, special shoes, knee braces, access to a low bunk, and

a cane.

5. There was no deliberate indifference analogous to Carlson;

rather, he received a timely MRI, cortisone shots, and the other

treatments described above.

6. The claim does not involve a wrongful death-like action and at

no time did the alleged failure to adequately treat concern either

a life-threatening condition or extreme pain.

These are meaningful differences. Moreover, under

Ziglar, the pleadings here are meaningfully different under the

third, fourth, fifth, sixth, and seventh "instructive" "examples":

- 12 - differences in "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," and "the risk of disruptive intrusion by the Judiciary

into the functioning of other branches." Ziglar,

-

40.3 Under Egbert, these differences amount to "special factors,"

see Egbert,

, which involve different concerns

about Judiciary involvement in healthcare services for federal

inmates.

This holding is supported by Rowland v. Matevousian,

(10th Cir. 2024), in which the Tenth Circuit held

that the Eighth Amendment claims that prison officials were

deliberately indifferent in treating the plaintiff's hernia were

meaningfully different from those at issue in Carlson. Rowland's

doctor recommended treatments short of surgery, but Rowland wanted

surgery and filed petitions through the Administrative Remedial

Program to that effect.

. The Tenth Circuit

held that Rowland's claim presented a "new context" from Carlson

since "the prison officials [in Rowland's case] did not act

These dissimilarities with Carlson require dismissal, even 3

before there is any need to address the question of whether the complaint would survive a plausibility standard under Fed. R. Civ. P. 12(b)(6) for motions to dismiss, had a cause of action been stated. We reject Waltermeyer's argument that the case should survive at least until discovery is completed.

- 13 - contrary to the doctor's recommendations for treating Mr.

Rowland's hernia; rather, their actions were consistent with the

physician's conclusion that the hernia should be treated with more

conservative measures short of surgery."

. Likewise,

Waltermeyer's doctor also chose more conservative measures that

were short of surgery. Moreover, the Tenth Circuit held that

unlike in Carlson, the prison officials "did not (1) give 'contra-

indicated drugs' to Mr. Rowland, (2) knowingly keep him in a

medical facility that was 'grossly inadequate' and contrary to the

doctor's orders, or (3) prescribe or use a medical instrument that

was 'known to be inoperative.'"

Citing Ziglar, the court

determined that even "small" differences can "'easily satisf[y]'

the 'new context inquiry,'" but that those differences were not

small.

(quoting Ziglar,

). The same is true

here.4

Our sister circuits have similarly rejected the creation

of new Eighth Amendment damages claims factually distinct from

4 Whether or not Brooks v. Richardson,

(7th Cir. 2025), is correct in its Carlson/Bivens analysis, it is distinguishable from our case. The Seventh Circuit held that an inmate's Eighth Amendment damages claim for inadequate medical treatment was not a new context for Bivens where the inmate alleged that the prison's medical staff failed to treat him for appendicitis. See

. The case is distinguishable: Brooks involved a total failure to treat for appendicitis, a potentially life-threatening condition, unlike this case where Waltermeyer was provided with treatment for his knee pain. See

The Brooks plaintiff, unlike Waltermeyer, also did not seek contraindicated treatment. See

- 14 - Carlson.5 See Ahmed v. Weyker,

(8th Cir. 2020)

(articulating that meaningful differences from Carlson can include

"the sorts of actions being challenged, the mechanism of injury,

and the kinds of proof those injuries would require" (quoting Farah

v. Weyker,

(8th Cir. 2019))); Crespo v. Carvajal,

No. 24-1138,

, at *1 (2d Cir. Feb. 27, 2025)

(unpublished) (holding that inmates' claims presented a new

context "even though they may be 'based on the same constitutional

provision as a claim in a case in which a damages remedy was

previously recognized'" (quoting Hernández,

)).

Other circuits have also often emphasized that "[t]he Supreme Court

has warned lower courts to act with utmost hesitation when faced

with actions that do not fall precisely under Bivens, Davis, or

Carlson." Bulger, 62 F.4th at 137. See also Byrd v. Lamb,

(5th Cir. 2021) (per curiam); Oliva v. Nivar, 973

5 We need not go so far as other circuits which have tried to establish guidelines, such as whether "[t]he severity, type, and treatment of [the plaintiff's] injuries differ significantly from those of the prisoner in Carlson" or if "non-lethal physical injuries . . . were eventually treated by the defendants." Johnson v. Terry,

(11th Cir. 2024). See also Bulger v. Hurwitz,

(4th Cir. 2023) (holding that new context existed because "even if [the plaintiff] could make out a claim for an alleged failure to provide constitutionally adequate medical treatment, a lack of competent medical care did not cause [the plaintiff's] death"); Chambers v. Herrera,

(9th Cir. 2023) (holding that new context existed for failure-to-protect claim because "the mechanism of injury in [the plaintiff's] claim is different than in Carlson").

- 15 - F.3d 438, 442 (5th Cir. 2020); Cantú v. Moody,

(5th Cir. 2019).6

Recognizing a judicially created cause of action based

on Waltermeyer's allegations conflicts with the Court's directive

that even claims presenting "almost parallel circumstances" may

not suffice, Egbert,

(quoting Ziglar,

), as well as Ziglar's directive that "the new-context inquiry

is easily satisfied," Ziglar,

.

Waltermeyer's counsel conceded at oral argument that the

inquiry ends here:

I think if you get to step two, we didn't want to waste defendants' time or this court's time by briefing step two. Because I think if you get to step two . . . I think any prison conditions claim fails. So I think what is left of Bivens is cases that are not a new context. . . a relatively narrow area around Carlson.

Oral Arg. Tr. at 10:44-11:17.7

6 The cases that we cite do not all involve comparisons with Carlson as opposed to other key Bivens cases, but the Supreme Court has prescribed the same analysis regardless of the comparator case used. See., e.g., Egbert,

. 7 Under Egbert, we look to whether 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,

(quoting Ziglar,

), including "sound reasons to think Congress might doubt the efficacy or necessity of a damages [claim],"

(quoting Ziglar,

). Waltermeyer did not brief this issue, and given his counsel's concession at oral argument, we need not discuss this step further.

- 16 - We affirm the district court's dismissal of the

appellant's claims. No costs are awarded.

-Dissenting Opinion Follows-

- 17 - BREYER, Associate Justice, dissenting. In three cases,

the Supreme Court has held that a person who is injured by a

violation of certain parts of the Constitution may recover damages.

See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

(1971) (Fourth Amendment); Davis v. Passman,

(1979) (Fifth Amendment); Carlson v. Green,

(1980)

(Eighth Amendment). The Court has since held that it would not

"extend" those holdings to new contexts. See Hernández v. Mesa,

(2020). Here we must decide whether Broc

Waltermeyer's complaint asserts a claim similar to one of the three

Bivens cases -- in particular, Carlson -- or whether recognizing

a cause of action here would "extend" Carlson to a new context.

In my view, Waltermeyer's claim is similar to Carlson, and I

dissent from the majority's contrary conclusion.

I.

There are three critical Bivens cases. They begin in

1971 with Bivens itself. The plaintiff in that case claimed that

federal officers had conducted an unlawful seizure, in violation

of the Constitution's Fourth Amendment, and had thereby injured

him.

. The Court held that the Fourth Amendment

provided him with a damages remedy.

. As Justice Harlan

succinctly put the matter: "[I]t is important, in a civilized

society, that the judicial branch of the Nation's government stand

- 18 - ready to afford a remedy" for certain constitutional violations.

(Harlan, J., concurring in judgment).

In 1979, the Court, in Davis,

, applied

Bivens' reasoning in a new context. The plaintiff in that case

claimed that a federal Congressman had dismissed her from her

federal job in violation of the Constitution's Fifth Amendment.

. The Court held that the Fifth Amendment provided

her with a damages remedy.

.

In 1980 the Court applied Bivens' reasoning in yet

another context. The survivors of a man incarcerated in a federal

prison claimed the prison's doctors had provided the prisoner with

deficient medical care, leading to his suffering and to his death,

in violation of the Eighth Amendment. Carlson,

&

n.1. The Court held that the Eighth Amendment provided the

survivors with a damages remedy.

.

The Court then "declined to extend" its Bivens'

reasoning further. Hernández,

; see Bush v. Lucas,

(1983) (no First Amendment damages remedy where

federal employee claims First Amendment retaliation); Chappell v.

Wallace,

(1983) (no constitutional damages

remedy where enlisted military personnel claimed unconstitutional

actions by superior officers during the plaintiffs' enlistment);

Schweiker v. Chilicky,

(1988) (no constitutional

damages remedy where plaintiffs claimed wrongful denial of Social

- 19 - Security disability benefits). The Court later said that the

Bivens trio had not controlled any of these cases because the

plaintiffs in each case were asking the Court to "authoriz[e] a

new kind of federal litigation." Wilkie v. Robbins,

(2007) (emphasis added) (quoting Bush,

). More

recently, the Court has added that recognizing a new Bivens cause

of action is "disfavored." Ziglar v. Abbasi,

(2017) (quoting Ashcroft v. Iqbal,

(2009)). But

it has added that its refusal to extend Bivens to new contexts is

"not intended to cast doubt on the continued force, or even the

necessity, of Bivens in the . . . context in which it arose." Id.

at 134.

In Ziglar the Court added a checklist of several factors

that might help distinguish old contexts from new ones. Some of

the potentially relevant differences include:

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 140.

- 20 - II.

A

Let us first compare the present case with the relevant

Bivens case, namely, Carlson:

Carlson Here

Type of action Damages action Same

Constitutional violation Eighth Amendment Same

Status of plaintiff Federal prisoner Same

Federal medical Same Status of key defendants officers Federal prison Same Place of injury facilities Aggravated asthma; Chronic knee pain Type of injury pain and suffering; and related death suffering Deliberate Deliberate indifference to indifference to medical needs; medical needs administration of Cause of injury contra-indicated medical care; use of non-functioning medical devices

Next, consider the remaining Ziglar factors, applied here and in

Carlson. In Carlson, the inmate sued a number of prison officials

responsible for his medical treatment, including the Chief Medical

Officer and Medical Training Assistant. See Green v. Carlson,

(7th Cir. 1978). The defendants in this case -- the

prison warden and prison doctor -- are of no higher rank. The

"generality or specificity of the official action," Ziglar, 582

- 21 - U.S. at 140, is identical across the two cases: Both inmates

challenged specific decisions made by the defendants about the

inmate's medical care. In Carlson, the "extent of judicial

guidance" available to federal officers was the principle set out

in Estelle v. Gamble,

(1976), which established

that "deliberate indifference to serious medical needs of

prisoners" violates the Eighth Amendment. See Carlson,

& n.3. If anything, the defendants in this case had

considerably more guidance than the defendants in Carlson, as the

law in this area has developed considerably over the last forty-

five years. See, e.g., Farmer v. Brennan,

(1994) (clarifying Estelle's "deliberate indifference" standard).

Both cases involve the same "statutory or legal mandate": the

Eighth Amendment. And the "risk of disruptive intrusion by the

Judiciary into the functioning of the other branches" appears to

be identical across the suits, as both involve the provisioning of

medical care at federal prisons.

B

As far as I can tell, then, there are only two arguable

differences between Carlson and the present case. First, the

injury. The Carlson injury was more serious: The prisoner had

asthma and died, see Carlson,

n.1, whereas here,

the prisoner had significant knee-related pain and associated

suffering. Second, the treatment. In Carlson the plaintiff

- 22 - alleged contra-indicated, or perhaps no, treatment.

Here the

prisoner concedes that he received some treatment, and that the

treatment aligned with a recommendation from an external medical

professional.

These are differences of degree, not kind. The Seventh

Circuit, upholding a Carlson-type claim in Brooks v. Richardson,

(7th Cir. 2025), noted that differences in the

"duration of the poor care or the gravity of the [medical]

condition . . . seem more pertinent to the merits than to

determining the scope of the holding in Carlson."

(Easterbrook, J.). The same reasoning applies here. Waltermeyer's

claim appears to be weaker than the claim in Carlson. Perhaps it

is so much weaker that Waltermeyer has not even alleged an Eighth

Amendment violation. See Estelle,

(holding that

a claim that prison medical care violates the Eighth Amendment

requires that the defendants acted with "deliberate indifference

to a prisoner's serious illness or injury"). If the defendants

believe that to be the case, they should file a motion to dismiss

or for summary judgment on that basis. But the defendants have

not yet made that argument. Before the district court, they argued

only that Waltermeyer's claim is an impermissible extension of

Bivens. And so that is the only argument before us today. To

conclude that a claim extends Carlson because it is weaker than

the claim in Carlson is to undermine Carlson itself -- the very

- 23 - thing the Supreme Court has asked us not to do. See also Snowden

v. Henning,

(7th Cir. 2023) (not a new Bivens

context despite presence of warrant, fewer federal officers, and

different location); Hicks v. Ferreyra,

(4th

Cir. 2023) (not a new Bivens context even though home not searched,

no arrest, no excessive force).

C

Cases in which the Supreme Court or this Circuit have

refused to extend Bivens differ significantly from the present

case. Ziglar involved non-citizens detained in an immigration

detention center arguing that their conditions of confinement and

their treatment by prison guards violated both their Fourth and

Fifth Amendment rights.

. The Court held that

their Fourth Amendment claims, concerning high-level policies in

an immigrant detention center, differed significantly from the

more ordinary, lower-level search and seizure policies at issue in

Bivens.

. And Carlson did not control, because the

Ziglar plaintiffs' claims were asserted under the Fourth and Fifth

Amendments, whereas the claims in Carlson were asserted under the

Eighth Amendment.

.

Hernández involved a "cross-border shooting" with

"national security" and "foreign relations" considerations, none

of which were present in Bivens or here.

.

Egbert v. Boule also involved an altercation along the border and

- 24 - immigration police, not ordinary federal police officers.

(2022). Finally, Correctional Services

Corp. v. Malesko,

(2001), and Minneci v. Pollard,

(2012), involved suits against private corporations and

private-prison operators, not (like Carlson and here) ordinary

federal prison employees.

This Circuit's refusal-to-apply Bivens cases are yet

more different. Quinones-Pimentel v. Cannon,

, 71 (1st

Cir. 2023), involved a claim that federal officers had helped

fabricate evidence in support of warrants to search a business

(not an individual) for evidence of copyright and money-laundering

violations. And Hornof v. United States,

(1st Cir.

2024), involved a group of non-resident seaman suing the Coast

Guard for unlawful detention aboard a foreign vessel.

Claims involving different constitutional amendments,

high-level immigration-detention policies, foreign nations and

foreign places of detention, and business or corporate parties,

would seem, in my view, less like Carlson than this case, which is

identical to Carlson but for less-serious injuries (knee-related

suffering) or medical failures (deliberate indifference to medical

needs). Thus, as I have said, while this might be a weaker case

than Carlson, I cannot say that this case, when compared with

Carlson, presents a "new kind of litigation" or "extends" Carlson

to a new context.

- 25 - For these reasons, with respect, I dissent.

- 26 -