Nielsen v. Watanabe

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.