In the
    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________

No. 24-1651
KEVIN BROOKS,
                                                  Plaintiff-Appellant,
                                 v.

JOSH RICHARDSON, et al.,
                                               Defendants-Appellees.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
          No. 22-cv-6738 — Franklin U. Valderrama, Judge.
                     ____________________

  ARGUED NOVEMBER 13, 2024 — DECIDED MARCH 14, 2025
              ____________________

   Before EASTERBROOK, PRYOR, and KOLAR, Circuit Judges.
    EASTERBROOK, Circuit Judge. Medical personnel at a federal
prison camp mistook appendicitis, which afflicted inmate
Kevin Brooks, for constipation and COVID-19, which did not.
For more than ten days they declined to send him to a hospital
for evaluation and treatment. His appendix ruptured and per-
itonitis ensued. Eventually Brooks recovered, but in the in-
terim he suffered agonizing pain.
2                                                    No. 24-1651

    In this suit under the doctrine of Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 

 (1971),
Brooks seeks damages from five federal employees. Three
treated him and the other two were supervisors. (In a separate
suit Brooks also seeks damages from the United States under
the Federal Tort Claims Act, 

(b), 2671–80.)
The district court dismissed this suit, ruling that it presents a
new context to which Bivens does not extend. 

 (N.D. Ill. Mar. 31, 2024).
   Bivens created an extra-statutory claim for damages
against federal agents who assertedly violated the Fourth
Amendment in the course of an arrest. Within a decade the
Supreme Court created two additional extra-statutory claims:
one under the Fifth Amendment in a suit filed by a former
congressional staffer, see Davis v. Passman, 

 (1979),
and another under the Eighth Amendment in favor of a pris-
oner who asserted that he had received constitutionally inad-
equate medical care, see Carlson v. Green, 

 (1980).
    Since then, the Supreme Court has been leery of extra-
statutory damages suits. “At bottom, creating a cause of action
is a legislative endeavor.” Egbert v. Boule, 

(2022). The Court has described the creation of a Bivens action
as “a disfavored judicial activity” and “an extraordinary act
that places great stress on the separation of powers.” 

,
497 n.3 (citations omitted). In the 45 years after Carlson, the
Justices have rejected every proposed extension of Bivens that
they have considered. In addition to Egbert, see Hernández v.
Mesa, 

 (2020); Ziglar v. Abbasi, 

 (2017);
Minneci v. Pollard, 

 (2012); Hui v. Castaneda, 

 (2010); Wilkie v. Robbins, 

 (2007);
Correctional Services Corp. v. Malesko, 

 (2001); FDIC
No. 24-1651                                                     3

v. Meyer, 

 (1994); Schweiker v. Chilicky, 

(1988); United States v. Stanley, 

 (1987); Bush v.
Lucas, 

 (1983); Chappell v. Wallace, 

(1983).
    Although its current approach apparently rules out novel
extra-statutory claims, the Court has not overruled Bivens, Da-
vis, or Carlson. And we cannot see why Brooks’s principal the-
ory entails a context different from Carlson. Green and Brooks
both asserted that a federal prison’s staff provided constitu-
tionally deficient medical care. If that was enough in Carlson,
why not in Brooks? The principal argument in Carlson against
extending Bivens to medical care in prison was that the Fed-
eral Tort Claims Act establishes a system of compensation,
which the Court should not supplement or displace. Such an
argument likely would prevail at the Supreme Court today,
but it did not prevail in 1980—and, unless the Court overrules
Carlson, Brooks is among that decision’s beneficiaries.
    The district judge offered two distinctions that, he con-
cluded, permit Brooks to recover only if Bivens is extended to
a new context. First, Green’s medical problem (an asthma at-
tack) lasted for eight hours, after which he died, while
Brooks’s appendicitis lasted ten days after the prison’s medi-
cal staff first saw him for abdominal pain and before he was
sent to a hospital. Second, two of the five defendants in this
case are supervisors rather than the personnel who provided
treatment.
    The Department of Justice, which represents all five de-
fendants, does not defend the district judge’s approach, and
understandably so. After all, Norman Carlson, the lead peti-
tioner in Carlson v. Green, was the Director of the Federal Bu-
reau of Prisons, as high up the supervisory hierarchy as one
4                                                   No. 24-1651

gets. If both the treating staff and the Director are exposed to
Bivens claims, local supervisors cannot be carved out. Super-
visors may prevail on the merits because Bivens does not cre-
ate vicarious liability, see Ashcroft v. Iqbal, 

(2009); Vance v. Rumsfeld, 

, 203–05 (7th Cir. 2012)
(en banc); Miller v. Marberry, 

, 428–29 (7th Cir.
2017), but that is a different matter. As for the duration of the
poor care or the gravity of the condition: these seem more per-
tinent to the merits than to determining the scope of the hold-
ing in Carlson.
    Instead of defending the district court’s reasoning, de-
fendants maintain that their case is unlike Carlson because
Green alleged intentional misconduct while Brooks alleges
deliberate indifference. We don’t get it—and not just because
Fed. R. Civ. P. 9(b) provides that “[m]alice, intent, knowledge,
and other conditions of a person’s mind may be alleged gen-
erally.” Given Rule 9(b), details about the way a pleading de-
scribes defendants’ mental states cannot sink the litigation.
More than that: Farmer v. Brennan, 

, 835–40 (1994),
holds that “deliberate indifference” is a kind of intent for the
purpose of the Eighth Amendment. Brooks’s allegations
therefore fit the model established by Carlson.
    Defendants offer a second theme: Brooks’s request for care
at a hospital implicates resource constraints, because a hospi-
tal may be unable to accommodate another person (or per-
haps the application of medical triage would affect the level
of care the referred person received). Once again this seems to
us a defense on the merits rather than a potentially different
context. All medical resources (whether at a hospital or within
a prison) are constrained and must be paid for. Indeed, all re-
sources of every kind are constrained; otherwise they would
No. 24-1651                                                     5

be free (which they will be if, as in Star Trek, society reaches a
post-scarcity phase). The time of prison nurses is scarce. The
time of prison doctors is scarce. Hospital beds are scarce. Any
sensible prison, like any sensible hospital, will devote re-
sources first to the situations that seem most serious and most
urgent. If ranking low on a triage calculus is what happened
to Brooks, then the defendants may have a good substantive
response to his suit (because concern for the needs of other
prisoners is not “indifference” to a prisoner’s pain). What we
will not do is smuggle a potential defense into the pleading
stage and use it as a reason why the claim does not exist.
     The Supreme Court has not spelled out what it means by
a “new context” to which Bivens should not be extended. We
have tried our hand at that subject recently. Sargeant v.
Barfield, 

 (7th Cir. 2023), holds that a challenge to
prison officials’ housing assignments (which exposed one
prisoner to attack by another) is a new context because it
implicates non-medical decisions, and litigation under Bivens
would interfere with the operation of a prison’s cell-
assignment and grievance-processing mechanisms. In
Snowden v. Henning, 

 (7th Cir. 2023), by contrast,
we concluded that a claim that officers used excessive force
when arresting someone falls within the original scope of
Bivens itself. We explained: “The context is new if the claim is
different in a ‘meaningful way’ from an earlier Bivens claim
authorized by the Court. … A difference is ‘meaningful’ when
it involves a factual distinction or new legal issue that might
alter the policy balance that initially justified the implied
damages remedies in the Bivens trilogy.” 

. By
that standard, Brooks’s claim does not present a new context.
Carlson itself considered issues of policy (including the
decision to bypass the effect of the Federal Tort Claims Act)
6                                                   No. 24-1651

and extended Bivens to arguments about constitutionally
deficient medical care in federal prisons. We have considered
above, and rejected, defendants’ effort to smuggle potential
substantive defenses into the question whether the suit
presents a new context. We therefore hold that Brooks has a
viable claim under Carlson and survives a motion to dismiss
the complaint.
    Survives, that is, with respect to the three defendants who
treated him (or, in his view, mistreated him). The other two
defendants—Elizabeth Harbison (the prison camp’s health-
services administrator) and Melissa Schreiber (the prison
camp’s administrator, equivalent to a warden)—are supervi-
sors who did not treat Brooks and so cannot be liable under
the holdings of Iqbal, Vance, and similar decisions. Brooks at-
tempts to avoid this conclusion by contending that these two
defendants failed to prescribe appropriate protocols for the
first-line medical staff to follow. If that is not just vicarious
liability by another name, see Vance, 701 F.3d at 203–05, it is
assuredly a new context to which Bivens and Carlson should
not be extended.
    The adoption of medical protocols poses questions distinct
from the hands-on care at issue in Carlson. Brooks does not
contend that either the Supreme Court or any other circuit has
extended Bivens to the formulation of medical-care guide-
lines, policies, or protocols in prison—or for that matter to any
other policy-making endeavor (such as the FDA’s drafting of
regulations affecting health care or OSHA’s adoption of reg-
ulations affecting workplace safety). Our decision in Hammer
v. Ashcroft, 

 (7th Cir. 2009) (en banc), rejects the
possibility of Bivens liability for supervisors who drafted or
declined to change a policy statement dealing with conduct in
No. 24-1651                                                   7

prison. If bad or missing protocols lead to harm through neg-
ligent (or worse) medical care in prison, the remedy lies
against the United States under the Federal Tort Claims Act.
    The judgment is affirmed to the extent that it dismisses the
claims against Harbison and Schreiber. It is vacated to the ex-
tent it concerns the other three defendants, and the case is re-
manded for further proceedings consistent with this opinion.