Jordan Watkins v. Brij Mohan

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1151
J ORDAN W ATKINS ,
Plaintiff-Appellant,
v.
BRIJ MOHAN, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:21-cv-02045 — Franklin U. Valderrama, Judge.
____________________
A RGUED NOVEMBER 8, 2024 — D ECIDED J ULY 16, 2025
____________________
Before R IPPLE , HAMILTON, and KIRSCH , Circuit Judges.
HAMILTON, Circuit Judge. While he was in federal custody,
plaintiff-appellant Jordan Watkins underwent a hernia repair
operation at an outside hospital. He began experiencing se-
vere pain and swelling in his groin. Medical staff at the cor-
rectional facility allegedly told Watkins that his pain and
swelling were ordinary side effects of his surgery. The medi-
cation they gave him did not relieve his pain or swelling, and
they refused to schedule a follow-up appointment with his

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2 No. 24-1151
surgical team before he was transferred to another federal fa-
cility.
Watkins brought Bivens claims alleging that medical and
correctional staff had been deliberately indifferent to his seri-
ous medical needs. See generally Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). He
also brought a claim under the Federal Tort Claims Act
(FTCA) against the United States for negligent medical treat-
ment. See 28 U.S.C. § 1346(b). The district court dismissed all
of his claims on the pleadings under Federal Rule of Civil Pro-
cedure 12(b)(6). The court thought the Supreme Court’s cur-
rent framework for evaluating Bivens claims should bar Wat-
kins’ Bivens claims and that he sued too late on his FTCA
claim. We reverse on both grounds.
In Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court
recognized an implied damages remedy under Bivens against
federal prison staff for providing constitutionally inadequate
medical care. Over the last eight years, starting with Ziglar v.
Abbasi, 582 U.S. 120 (2017), the Court has sharply curtailed the
extension of Bivens to new contexts. Nevertheless, Carlson re-
mains good law. It allows federal prisoners to sue for dam-
ages resulting from deliberate indifference to their serious
medical needs. Under a straightforward application of Carlson
and the Supreme Court’s current legal framework for evalu-
ating Bivens claims, Watkins’ constitutional claims may go for-
ward. Also, although Watkins’ suit under the FTCA is un-
timely, he may be able to establish the requirements for equi-
table tolling.

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No. 24-1151 3
I. Factual and Procedural Background
The following facts are drawn from the allegations of the
complaint, which we must accept as true when reviewing the
grant of a motion to dismiss on the pleadings. Sargeant v. Bar-
field, 87 F.4th 358, 361 (7th Cir. 2023).
A. Watkins’ Surgery and its Aftermath
Watkins was in federal custody in Chicago at the Metro-
politan Correctional Center (MCC) as a pretrial detainee from
October 22, 2018 to July 18, 2019 and as a convicted prisoner
from July 18, 2019, when he was sentenced, to July 29, 2019,
when he was transferred to another prison. On June 12, 2019,
he underwent hernia repair surgery at an outside hospital.
His discharge instructions said he should schedule a follow-
up appointment with the hospital within two weeks of his
surgery. After returning to MCC, Watkins “immediately” be-
gan experiencing severe pain and swelling in his groin, with
his testicles swelling “to the size of a grapefruit.” His pain and
swelling became so severe that he could not sit or sleep.
Around three days after his surgery, Watkins told MCC
medical staff, including defendant and Clinical Director Dr.
Brij Mohan, of his pain and swelling. The medical staff dis-
missed his swelling as a “routine and benign side effect of the
hernia repair surgery.” They gave Watkins medication, but it
was ineffective for relieving his pain or reducing the severe
swelling in his scrotum. MCC staff denied his request to
schedule a follow-up appointment with his surgical team.
They did not provide any additional care to address Watkins’
pain or swelling.
Watkins continued to report post-operative pain during
the remainder of his custody at MCC. Despite his

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4 No. 24-1151
“progressively worsening medical condition,” MCC medical
staff cleared him for transfer from MCC. He was transferred
to a new correctional facility on July 29, 2019. Watkins did not
undergo surgery to address the ongoing complications from
his hernia repair surgery until February 12, 2020.
B. Procedural Background
During the fall of 2019, Watkins began pursuing adminis-
trative remedies for the inadequate medical care he believes
he received at MCC. He first submitted a request for an Infor-
mal Resolution Administrative Remedy in October 2019.
Then, in November 2019, Watkins submitted a Request for
Administrative Remedy to the United States Department of
Justice. The Bureau of Prisons (BOP) issued a final denial of
Watkins’ request for administrative remedy on July 20, 2020.
Watkins filed suit in the Northern District of Illinois on Au-
gust 7, 2020, just eighteen days after the Bureau issued its Fi-
nal Denial. Complaint, Watkins v. Mohan, No. 20-cv-4662 (N.D.
Ill. Aug. 7, 2020), ECF No. 1 (Watkins I). That suit was dis-
missed for reasons explained below. Watkins filed this second
suit on March 24, 2021, asserting essentially the same claims
as in Watkins I. The district court granted his request for attor-
ney representation and recruited trial counsel to represent
him. Through his recruited counsel, Watkins submitted a new
operative complaint.
In his complaint, Watkins brought four claims under
Bivens against Dr. Mohan and unnamed MCC medical and
correctional staff. He alleged that Dr. Mohan and other MCC
staff violated his constitutional rights by providing inade-
quate medical care. Watkins also asserted one claim under the
Federal Tort Claims Act, 28 U.S.C. § 1346(b), against the

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No. 24-1151 5
United States for negligent medical treatment. The Depart-
ment of Justice represents all the defendants and moved to
dismiss Watkins’ claims under Federal Rule of Civil Proce-
dure 12(b)(6). It argued that Watkins had failed to state a claim
for relief under Bivens and that Watkins’ FTCA claim was
time-barred. Watkins opposed the motion to dismiss on the
grounds that his Bivens claims fit within the cause of action
recognized by Carlson v. Green and that equitable tolling ex-
cused the untimely filing of his FTCA claim.
The district court granted defendants’ motion to dismiss.
It held that Watkins’ constitutional claims fail because they
arose in a “new context” to which Bivens should not be ex-
tended. It also held that equitable tolling is not available for
Watkins’ FTCA claim because he did not exercise reasonable
diligence in filing this second lawsuit. Watkins v. Mohan, 2023
WL 8527414 (N.D. Ill. Dec. 8, 2023). Watkins has appealed.1
We reverse. In Part II, we explain that Watkins’ Eighth
Amendment claims fall well within the right of action recog-
nized by the Supreme Court in Carlson v. Green. In Part III, we
explain that the dismissal of Watkins’ FTCA claim was prem-
ature because he has shown that he may be able to benefit
from equitable tolling.
1 Watkins’ operative complaint identifies as the constitutional
grounds for his claims the Eighth and Fourteenth Amendments. Com-
plaints need not identify legal theories, of course, but on remand, Watkins
might wish to seek leave to amend his complaint to clarify that treatment
of a federal pretrial detainee is governed by the Fifth Amendment rather
than the Fourteenth.

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6 No. 24-1151
II. Watkins’ Bivens Claims
We review de novo a district court’s dismissal of a com-
plaint for failure to state a claim. Fosnight v. Jones, 41 F.4th 916,
921 (7th Cir. 2022). We take all the facts alleged in Watkins’
complaint as true and give him the benefit of all reasonable
inferences. Id.
A. Same Context as Carlson
Since this nation’s founding, federal courts have awarded
damages against federal officers for violating the legal rights
of United States citizens and others. See James E. Pfander,
Constitutional Torts and the War on Terror 3–18 (Oxford: Oxford
University Press 2017); id. at 9 (in the nineteenth century,
courts “came to understand that their duty was to apply the
law and determine, often with the help of a jury, the legality
of official action. The burden of ameliorating the financial con-
sequences of personal liability fell to Congress ….”); see also
Bivens, 403 U.S. at 395–96 (noting precedents for damages ac-
tions). The Supreme Court continued that historical practice
in Bivens when it recognized a right of action for damages di-
rectly under the Constitution for violations of individual
rights by federal officials.
In Bivens, the plaintiff sought damages against federal of-
ficers who entered and searched his home without a warrant
and arrested him using unreasonable force. 403 U.S. at 389.
But the Court did not limit Bivens to Fourth Amendment
claims. First, in Davis v. Passman, the Court recognized an im-
plied damages action against a member of Congress for work-
place sex discrimination in violation of the equal protection
prong of the Fifth Amendment. 442 U.S. 228, 248–49 (1979).
Then, in Carlson, the Court extended Bivens to a claim against

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No. 24-1151 7
federal prison officials for failing to provide adequate medical
care in violation of the Eighth Amendment. 446 U.S. at 18–19.
Since then, the Supreme Court has limited Bivens in a va-
riety of ways, most importantly now in refusing to authorize
Bivens actions in “new contexts.” See Ziglar v. Abbasi, 582 U.S.
120, 135 (2017) (collecting cases refusing to recognize an im-
plied damages remedy). But the Court has repeatedly de-
clined to overrule Bivens, Davis, or Carlson. See Egbert v. Boule,
596 U.S. 482, 491, 502 (2022) (rejecting Bivens in new context
but refraining from reconsidering Bivens); Snowden v. Hen-
ning, 72 F.4th 237, 242 (7th Cir. 2023) (“the Court has stopped
short of overruling the Bivens trilogy”).
Instead, the Court has fashioned a two-step framework to
determine whether a Bivens action may proceed. Under the
first step of the Court’s current approach, a plaintiff’s dam-
ages action against a federal official may proceed if it arises in
an existing Bivens context. Egbert, 596 U.S. at 492. But if the
plaintiff’s case presents a “new Bivens context,” the court must
consider whether special factors indicate that “the Judiciary is
at least arguably less equipped than Congress to ‘weigh the
costs and benefits of allowing a damages action to proceed.’”
Id., quoting Ziglar, 582 U.S. at 139, 136. Most recently, the
Court held that a claim of excessive force under the Eighth
Amendment presented a new context, implicitly beyond the
scope of the Carlson context of deliberate indifference in
prison health care. Goldey v. Fields, 606 U.S. —, 2025 WL
1787625 (2025).
We resolve this case at step one of the Bivens inquiry. We
recently reiterated in Brooks v. Richardson that Carlson makes
relief available for claims that “a federal prison’s staff pro-
vided constitutionally deficient medical care.” 131 F.4th 613,

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8 No. 24-1151
615 (7th Cir. 2025). Watkins asserts that federal prison officials
violated his Eighth Amendment right to be free from cruel
and unusual punishment by giving him constitutionally inad-
equate care after his surgery. Because Watkins’ claims arise
from allegedly constitutionally inadequate medical care in a
federal prison and his principal theory is identical to that of
the plaintiffs in Carlson and Brooks, his claims fit squarely
within the Bivens claim recognized by Carlson. See Brooks, 131
F.4th at 614, 616 (reversing dismissal of similar Bivens-Carlson
claim where plaintiff sought damages for prison staff’s failure
to diagnose or treat his appendicitis); see also Stanard v. Dy,
88 F.4th 811, 817 (9th Cir. 2023) (recognizing a Bivens-Carlson
claim because plaintiff sought “a damages remedy for failure
to provide medical attention evidencing deliberate indiffer-
ence to serious medical needs”); Watanabe v. Derr, 115 F.4th
1034, 1041 (9th Cir. 2024) (same).
Defendant Mohan points to a few allegations in Watkins’
complaint about his supervisory responsibilities as evidence
that Watkins’ claims rely on a theory of respondeat superior,
which cannot form the basis of Bivens liability. See Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009) (in a Bivens action, “Government
officials may not be held liable for the unconstitutional con-
duct of their subordinates under a theory of respondeat supe-
rior”). The Supreme Court’s general rejection of respondeat
superior liability for Bivens claims is clear, but the govern-
ment’s argument here relies on too narrow a reading of Wat-
kins’ complaint, one that is inconsistent with the standard for
review on a motion to dismiss. To survive a motion to dismiss
for failure to state a claim, a plaintiff need only plead “factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at

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No. 24-1151 9
678, citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556
(2006).
Watkins alleges that he informed Dr. Mohan himself of his
post-operative pain and swelling and that Dr. Mohan failed
to take any action to address his serious medical needs. Wat-
kins is therefore challenging the personal acts and omissions
of Dr. Mohan, not merely seeking to hold him responsible for
the conduct of the staff he supervises. The allegations in Wat-
kins’ complaint about Dr. Mohan’s supervision of other MCC
medical and nursing staff do not defeat all his Bivens claims.
See also Brooks, 131 F.4th at 615 (local supervisors are exposed
to Bivens claims but “may prevail on the merits because Bivens
does not create vicarious liability” (citing Iqbal, 556 U.S. at
677)).
B. No Meaningful Differences
Defendants argue that Watkins’ case is meaningfully dif-
ferent from Carlson such that his constitutional claims should
be deemed to have arisen in a new “context” so that they
should be dismissed. The Supreme Court has explained that
a context is new if the plaintiff’s claim “is different in a mean-
ingful way” from an earlier Bivens claim authorized by the
Court. Ziglar, 582 U.S. at 139. A meaningful difference is one
that “might alter the policy balance that initially justified the
implied damages remedies in the Bivens trilogy.” Snowden, 72
F.4th at 239. It is not the case, however, that any degree of var-
iation will preclude a Bivens remedy. “Some differences, of

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10 No. 24-1151
course, will be so trivial that they will not suffice to create a
new Bivens context.” Ziglar, 582 U.S. at 149.2
Defendants have identified two distinctions that they ar-
gue are meaningful in terms of “the generality or specificity
of the official action,” “the risk of disruptive intrusion by the
Judiciary,” and “the extent of judicial guidance.” See Ziglar,
582 U.S. at 140. First, defendants say, Watkins’ case involves
inadequate postoperative care, not an acute medical emer-
gency, as in Carlson. Second, Watkins was a pretrial detainee
for part of his time and medical care at MCC, so MCC staff
had to address his medical needs amidst uncertainty about
whether and when he might be transferred to a different fa-
cility. According to defendants, these features of Watkins’
claims “implicate and challenge broader-level and more sys-
temic issues within the BOP.” They specifically identify the
“housing and transfer of pre-trial detainees and inmates be-
tween facilities; the resource allocation, security, and timing
decisions relating to outside consultation; and the scheduling
of care” as issues over which Carlson did not authorize judicial
oversight.3
2 Our Bivens analysis applies to Dr. Mohan and the unnamed members
of MCC’s medical and correctional staff designated in Watkins’ complaint,
so we refer to “defendants” collectively throughout this section.
3 Defendants also argue that Watkins’ case is meaningfully different
from Carlson because his treatment as a pretrial detainee was subject to the
Fifth Amendment rather than the Eighth Amendment. The dissenting
opinion makes the same argument. In the district court, however, that dis-
tinction was not drawn at all, let alone addressed, by the parties or the
district court. Watkins, 2023 WL 8527414, at *7 n.10. No one in the district
court appears to have focused on the distinction between the Fourteenth
Amendment’s Due Process Clause, which applies to state pretrial detain-
ees, and the Fifth Amendment’s Due Process Clause, which applies to

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No. 24-1151 11
Under the Supreme Court’s current framework for as-
sessing Bivens claims and our case law applying that frame-
work, neither Watkins’ transitionary status nor his complaints
of post-operative pain constitute meaningful differences that
would defeat his claims. First, there is no difference between
“the generality or specificity of the official action” challenged
in this case and in Carlson. See Ziglar, 582 U.S. at 140. As a
threshold matter, all federal detainees and prisoners are sub-
ject to transfer to different facilities at any time for a host of
reasons, which might or might not implicate medical treat-
ment. Watkins’ complaint does not identify any broadly ap-
plicable BOP policy, and the record is plainly insufficient to
assess whether his claims implicate any such policies. But
even if factual development reveals later that he was treated
pursuant to a broadly applicable policy, Watkins, like the
plaintiff in Carlson, is challenging the discrete acts and omis-
sions of particular medical and correctional personnel who
treated him or made decisions about his care. If Watkins was
treated pursuant to a BOP policy, he can still challenge the
application of that policy to the facts of his case. See Stanard,
88 F.4th at 817–18 (fact that plaintiff challenged defendant’s
federal pretrial detainees. We note that the plaintiff in Carlson alleged vi-
olations of the Fifth Amendment’s Due Process Clause and its equal pro-
tection component, as well as the Eighth Amendment. See Green v. Carlson,
581 F.2d 669, 671 (7th Cir. 1978), aff’d, 446 U.S. 14 (1980). Although Wat-
kins’ legal status changed from pretrial detainee to convicted prisoner, the
MCC medical staff defendants always had a constitutional duty to re-
spond reasonably to his known serious medical needs. Moreover, courts
assess the viability of multiple Bivens claims as they do all others—on a
claim-by-claim basis. E.g., Egbert v. Boule, 596 U.S. 482 (2022) (assessing
separately the viability of First and Fourth Amendment claims). We leave
further sorting out of these nuances to the district court on remand.

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12 No. 24-1151
application of “broadly applicable BOP policy governing
HCV treatment protocol in federal prisons” did not take his
claim out of Carlson context).4
To the extent that Watkins’ claims implicate administra-
tive considerations regarding scheduling, outside consulta-
tion, or prison assignment, that would not remove them from
Carlson’s ambit. Defendants misapprehend the scope of the
cause of action recognized in Carlson and assert an argument
that Brooks rejected.
Careful attention to the facts of Carlson shows that the
Court anticipated that its decision would lead to judicial scru-
tiny of administrative decisions by federal prisons in the con-
text of health care. While Carlson might be best remembered
for involving prison medical officials’ mishandling of a pris-
oner’s asthma attack and that prisoner’s subsequent death,
the plaintiff’s allegations were not so limited. The plaintiff
also alleged that the defendants mismanaged the prisoner’s
asthma throughout his incarceration. See Green v. Carlson, 581
F.2d 669, 671 (7th Cir. 1978) (plaintiff alleged that prison med-
ical officials had failed to give the deceased prisoner proper
medication or the steroid treatments ordered by his outside
physician), aff’d, 446 U.S. 14 (1980). Carlson thus also dealt with
management of a chronic, non-emergent medical condition
requiring continuous, periodic treatment over many months,
as well as all the administrative decisions that such treatment
4 Because Watkins is challenging only the specific actions of medical
and correctional officers who were involved in his care, his case does not
present a challenge “to the formulation of medical-care guidelines, poli-
cies, or protocols in prison.” Brooks, 131 F.4th at 616. It therefore does not
run afoul of the Brooks holding that such challenges present a new context
to which Bivens and Carlson should not be extended. See id. at 616–17.

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No. 24-1151 13
necessarily entails. The decision was not limited—explicitly
or implicitly—in the ways defendants argue.
Moreover, Carlson also involved allegations about prison
assignment and transfer. 446 U.S. at 16 n.1 (plaintiff alleged
that the defendants “being fully apprised of the gross inade-
quacy of medical facilities and staff at [FCC Terre Haute] and
of the seriousness of Jones’ chronic asthmatic condition, none-
theless kept him in that facility against the advice of doctors”).
These allegations reflect, and Carlson recognized, the reality
that in prison, medical care is not hermetically sealed off from
non-medical decision-making. In light of Carlson’s facts, Wat-
kins’ allegations that defendants failed to give him proper
medication, failed to follow his surgical team’s instructions,
and failed to delay his transfer to another facility are no more
disruptive or intrusive than what Carlson itself already ap-
proved.5
Even if Carlson had not spoken directly to the differences
defendants rely upon to distinguish it, their argument would
still be flawed. The main thrust of defendants’ argument is
that “claims that bear on general administrative and schedul-
ing concerns are not cognizable under Bivens.” This is a vari-
ation on a theme that Brooks already rejected. As our opinion
explained, all requests for medical care implicate resource
constraints and therefore entail decisions about scheduling
5 In Sargeant v. Barfield, we affirmed dismissal of a claim for failure to
protect the plaintiff from violence from another prisoner. 87 F.4th 358 (7th
Cir. 2023). We reasoned that the claim challenged prison officials’ housing
assignments, thus presenting a “new context” beyond Carlson because it
implicated non-medical decisions. Id. at 367. Because Carlson itself in-
volved allegations about prison assignment and transfer in the context of
medical care, Sargeant’s reasoning does not block Watkins’ claims.

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14 No. 24-1151
and priorities. 131 F.4th at 615–16. So, the fact that Watkins’
requests for medical care required defendants to allocate
scarce resources among competing demands does not distin-
guish this case from Carlson or Brooks, or indeed from the
mine-run of medical deliberate-indifference cases.6
The dissenting opinion suggests that allowing Watkins’
claims to proceed will launch a new era of judicial interfer-
ence with BOP operations. Post at 42–43. Not at all. Federal
courts have been hearing a wide variety of federal prison
health-care cases for more than fifty years since Bivens was de-
cided and more than forty years since Carlson was decided.
We also hear even greater numbers of cases involving health
care for prisoners in state prisons and detainees in county
jails. Medical and correctional staff can consult decades of cir-
cuit precedent applying the deliberate-indifference standard
in cases involving the management of long-term ailments,
consultation with outside providers, and prison assignment
or transfer. E.g., Arce v. Wexford Health Sources Inc., 75 F.4th
673, 679–81 (7th Cir. 2023) (no deliberate indifference where
prison medical staff delayed follow-up care until ten days af-
ter initial hospital visit and failed to prescribe more potent
painkillers); Walker v. Wexford Health Sources, Inc., 940 F.3d 954,
966 (7th Cir. 2019) (no deliberate indifference where there was
no evidence that defendant’s “actions or inaction caused any
6 The dissenting opinion takes the government’s arguments even fur-
ther, proposing that the context of Carlson be narrowed based on different
types of BOP facilities, different diagnoses, different degrees of medical
urgency, different severity of injuries, different transfer schedules for pris-
oners, and different roles played by BOP medical staff v. outside medical
providers. Those arguments come close to urging that Carlson be limited
to its facts. Neither the Supreme Court nor this court has tried to slice so
finely the “new context” inquiry in Bivens jurisprudence.

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No. 24-1151 15
of the scheduling delays” with post-surgery follow-up ap-
pointment); Zaya v. Sood, 836 F.3d 800, 805–07 (7th Cir. 2016)
(jury could find deliberate indifference where prison doctor
waited nearly seven weeks to authorize follow-up appoint-
ment to off-site orthopedic specialist treating plaintiff’s bro-
ken wrist); Cotts v. Osafo, 692 F.3d 564, 565–66 (7th Cir. 2012)
(prison officials at two different prisons delayed surgical her-
nia repair by outside surgeon for a combined period of 13
months); Roe v. Elyea, 631 F.3d 843, 862–63 (7th Cir. 2011) (af-
firming jury verdict finding deliberate indifference where “in-
mates were denied further testing and treatment for HCV in-
fection categorically based on the expected length of their con-
tinued incarceration in an IDOC facility”); Berry v. Peterman,
604 F.3d 435, 441–42 (7th Cir. 2010) (delay of two months in
referring prisoner to off-site dentist; jury could find that doc-
tor decided prisoner could endure his pain until upcoming
transfer to another prison); Lee v. Young, 533 F.3d 505, 510–12
(7th Cir. 2008) (no deliberate indifference where asthmatic
prisoner complained, among other things, that he should
have been transferred to a different facility to avoid exposure
to secondhand smoke); Hudson v. McHugh, 148 F.3d 859, 863–
64 (7th Cir. 1998) (holding that prisoner stated a claim against
jail officers and nurse for failing to give him his daily epileptic
medicine after transfer).
In each of these cases—and many more examples could be
cited—prison officials had to navigate resource, medical,
and/or security constraints. When defendants act reasonably
within those constraints, they have a defense to liability. E.g.,
Rasho v. Jeffreys, 22 F.4th 703, 710 (7th Cir. 2022) (“Evidence
that the defendant responded reasonably to the risk, even if
he was ultimately unsuccessful in preventing the harm, ne-
gates an assertion of deliberate indifference.”), citing Farmer

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16 No. 24-1151
v. Brennan, 511 U.S. 825, 844 (1994). But we will not “smuggle
a potential defense into the pleading stage and use it as a rea-
son why the claim does not exist.” Brooks, 131 F.4th at 616.
That is what defendants ask us to do here. Defendants
may have acted reasonably within the constraints imposed by
Watkins’ transitionary status. See id. at 615–16 (medical triage
may reasonably affect a prisoner’s level of care); Elyea, 631
F.3d at 863 (“administrative convenience and cost may be, in
appropriate circumstances, permissible factors for correctional
systems to consider in making treatment decisions”). If, as de-
fendants suggest, Watkins needed a “long-term care plan
with follow-up appointments and stable monitoring,” that
may not have been achievable during his time at MCC. The
Constitution does not require that prisoners receive “unqual-
ified access to health care.” Johnson v. Doughty, 433 F.3d 1001,
1013 (7th Cir. 2006), quoting Hudson v. McMillian, 503 U.S. 1,
9 (1992). But these are arguments about what constituted ad-
equate, minimum-level medical care under the circum-
stances, not differences that alter the policy balance that ini-
tially justified Carlson or that would justify dismissal on the
pleadings here.
To sum up, Carlson has been settled law for more than
forty years. Our job is to apply that settled law consistent with
the Supreme Court’s current framework for evaluating the vi-
ability of Bivens claims. We recognize that the Court has cut
back substantially on the Bivens remedy and its deterrent
against abuse of power and authority by federal agents, per-
haps the only legal deterrent not controlled by the executive
branch itself. But again, the Court’s latest cases are not a green
light for “defendants’ effort to smuggle potential substantive
defenses into the question whether the suit presents a new

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No. 24-1151 17
context.” Brooks, 131 F.4th at 616. Because Watkins’ claims that
MCC medical and correctional staff violated their constitu-
tional duty to provide him with adequate medical care fall
well within the right of action recognized by Carlson, his
Bivens claims may go forward.
III. Timeliness of Watkins’ FTCA Claim
A plaintiff pursuing an FTCA claim in court must meet
two separate timing requirements under 28 U.S.C. § 2401(b).
First, the plaintiff must present an administrative claim to the
appropriate federal agency within two years of the claim ac-
cruing. Both sides agree that Watkins satisfied this require-
ment by presenting his administrative claim to the Bureau of
Prisons within five months of his hernia repair surgery. Sec-
ond, the plaintiff must file suit within six months of the “no-
tice of final denial of the claim by the agency to which it was
presented.” Id. Both parties also agree that Watkins missed
this second filing deadline because this second suit was filed
approximately eight months after the Bureau of Prisons
mailed its final denial of his claim.
Watkins’ late filing is not necessarily fatal to his FTCA
claim. Both of “the FTCA’s time bars are nonjurisdictional and
subject to equitable tolling.” United States v. Wong, 575 U.S.
402, 420 (2015). Equitable tolling “pauses the running of, or
‘tolls,’ a statute of limitations when a litigant has pursued his
rights diligently but some extraordinary circumstance pre-
vents him from bringing a timely action.” Lozano v. Montoya
Alvarez, 572 U.S. 1, 10 (2014). “The realm of equitable tolling
is a ‘highly fact-dependent area’ in which courts are expected
to employ ‘flexible standards on a case-by-case basis.’” Socha
v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014) (Socha II), quoting
Socha v. Pollard, 621 F.3d 667, 672 (7th Cir. 2010) (Socha I).

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18 No. 24-1151
Nonetheless, equitable tolling is rare. Id. It will not save an
untimely filing caused by “a garden variety claim of excusable
neglect.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).
Watkins has good arguments, however, that his situation is
quite different from garden variety excusable neglect.
A. Factual Background on FTCA Claim
Because the facts bearing on the availability of equitable
tolling are not relevant to Watkins’ Bivens claims, we set them
out here.7 This is Watkins’ second suit arising from his hernia
repair surgery. He filed his first pro se complaint on August
7, 2020, just eighteen days after the Bureau of Prisons issued
a final denial of his administrative claim. Complaint, Watkins
v. Mohan, No. 20-cv-4662 (N.D. Ill. Aug. 7, 2020), ECF No. 1
(Watkins I). That complaint met both timing requirements im-
posed by section 2401(b), but it was ultimately dismissed for
reasons out of Watkins’ control.
Shortly after filing that original complaint, Watkins sub-
mitted three applications for leave to proceed in forma pau-
peris in August and September 2020. On November 2, 2020,
the district court entered an order denying all three of Wat-
kins’ applications. The order explained that each application
was incomplete and warned Watkins that his suit would be
dismissed unless he submitted a fourth, complete application
by December 4, 2020. Due to disruptions in prison mail
7 In our recitation of facts, we include the date that Watkins claims he
received notice of the dismissal of his first suit, Watkins I, even though that
date was not presented to the district court. “A party appealing a Rule
12(b)(6) dismissal may elaborate on his factual allegations so long as the
new elaborations are consistent with the pleadings.” Geinosky v. City of
Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012); accord, e.g., Veazey v. Commu-
nications & Cable of Chicago, Inc., 194 F.3d 850, 861 (7th Cir. 1999).

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No. 24-1151 19
service caused by COVID-19, however, Watkins did not re-
ceive the November 2 order until well after the district court’s
December 4 deadline. Because the district court never re-
ceived a fourth application from Watkins, on December 21,
2020, it dismissed Watkins I without prejudice for failure to
comply with the November 2 court order.
The dismissal of Watkins I left Watkins 30 days to refile his
suit before the six-month time to file suit under the FTCA ex-
pired on January 20, 2020. Two obstacles prevented him from
refiling during that 30-day window. First, after being exposed
to someone who tested positive for COVID-19, Watkins was
placed in quarantine on January 11. In quarantine, Watkins
did not have access to his documents, mail, phones, or a com-
puter, so he could not have filed a new lawsuit during that
time. Second, Watkins did not receive notice of the dismissal
of Watkins I until January 26, six days after the limitations pe-
riod for his FTCA claim had already expired. Watkins was not
released from quarantine until February 3.
At that point, Watkins would have needed to assess his op-
tions to determine whether and how he could pursue his
FTCA claim despite the expiration of the statute of limita-
tions. Assessing options and choosing an effective response
would challenge many trained and experienced lawyers al-
ready familiar with federal civil practice. Would it be best to
try a Rule 59 motion? A Rule 60 motion? An appeal? A new
lawsuit? Something else? And should these procedures be
used simultaneously or in a particular sequence?
Then Watkins’ ability to pursue his FTCA claim was again
interrupted by COVID-19 on March 3, when he reentered
quarantine after testing positive for COVID-19. He did not
leave quarantine until March 16. Eight days later, on March

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20 No. 24-1151
24, Watkins delivered his complaint and summons for this
lawsuit to prison staff for mailing. He also included a com-
plete application for leave to proceed in forma pauperis and a
motion for appointment of counsel. This suit was docketed in
the district court three weeks later on April 15, 2021.
The district court granted Watkins’ application to proceed
in forma pauperis and recruited counsel to identify potential
additional defendants and to determine whether an amended
complaint would be appropriate. After Watkins’ appointed
counsel filed a second amended complaint, the defendants
moved to dismiss Watkins’ suit under Rule 12(b)(6). The gov-
ernment argued that Watkins’ FTCA claim was time-barred.
In response, Watkins conceded that this suit had been filed
late but argued that equitable tolling should apply.
The district court agreed with the government and dis-
missed Watkins’ FTCA claim under Rule 12(b)(6) as untimely.
Both the government and the district court thought the limi-
tations period might have been equitably tolled until Febru-
ary 3, when Watkins was released from his first period of
quarantine. But the court concluded that Watkins had not dil-
igently pursued his rights during the periods when he was
not in quarantine. On appeal, Watkins argues that dismissal
of his FTCA claim was premature.
B. Standard of Review
Before addressing the merits of Watkins’ equitable tolling
argument, we need to clarify the standard of review that we
apply to a district court’s denial of equitable tolling. The
proper standard of review in a particular case depends on
how and when an issue is raised.

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No. 24-1151 21
“We review de novo a district court’s decision to dismiss
a complaint on statute-of-limitations grounds.” Chicago Build-
ing Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 614 (7th
Cir. 2014). Equitable tolling is one of the theories that a plain-
tiff may raise to defeat a statute of limitations defense. When
a district court denies equitable tolling at the motion to dis-
miss stage, it is making a judgment that the complaint fails to
state a claim for relief because it is “indisputably time-
barred.” Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005). We
therefore review de novo a district court’s rejection of a plain-
tiff’s equitable tolling argument on a Rule 12(b)(6) motion to
dismiss. Rosado v. Gonzalez, 832 F.3d 714, 716–17 (7th Cir. 2016)
(reviewing de novo a district court’s rejection of plaintiff’s eq-
uitable tolling argument on a motion to dismiss); Savory v. Ly-
ons, 469 F.3d 667, 670, 673–74 (7th Cir. 2006) (same).8
The government argues that we should instead review the
district court’s decision for abuse of discretion. But that def-
erential standard applies only to a district court’s equitable
judgment based on a full record. See, e.g., Clark v. Runyon, 116
F.3d 275, 277 (7th Cir. 1997) (“Deferential review is particu-
larly appropriate here, where the district court made the toll-
ing decision after a full evidentiary hearing and where both
of the tolling issues that Clark has raised on appeal are highly
dependent on the facts as the court found them to be.”). In the
habeas context, we have explained that deferential review is
8 “Though district courts have granted Rule 12(b)(6) motions on the
basis of affirmative defenses and this court has affirmed those dismissals,
we have repeatedly cautioned that the proper heading for such motions is
Rule 12(c), since an affirmative defense is external to the complaint.”
Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 n.1 (7th Cir.
2012).

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22 No. 24-1151
not warranted when a district court rules on the issue of equi-
table tolling despite “an obvious need for further record de-
velopment.” Famous v. Fuchs, 38 F.4th 625, 630 n.17 (7th Cir.
2022), citing Schmid v. McCauley, 825 F.3d 348, 350 (7th Cir.
2016). That principle also applies in the context of general civil
litigation.
At the pleading stage, there will usually be an “obvious
need for further factual development” on a plaintiff’s equita-
ble tolling argument. See Brownmark Films, LLC v. Comedy
Partners, 682 F.3d 687, 690 (7th Cir. 2012) (affirmative defenses
“typically turn on facts not before the court” on motion to dis-
miss). Equitable tolling can require a nuanced examination of
the plaintiff’s conduct to determine whether the plaintiff pur-
sued his legal rights diligently and an equitable evaluation of
whether the circumstances justify extraordinary relief. Hyson
USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935, 941 (7th Cir. 2016)
(applying similar analysis to equitable defense of acquies-
cence in trademark context). Without a complete factual rec-
ord, a district court generally does not have a reliable founda-
tion for making this kind of fact-dependent equitable judg-
ment. See id.
The Federal Rules of Civil Procedure provide mechanisms
for resolving a strong statute of limitations defense early. If a
plaintiff or defendant attaches materials in evidentiary form
to a motion to dismiss or response, a judge may consider those
materials and convert a motion to dismiss into a motion for
summary judgment after giving both sides “a reasonable op-
portunity to present all the material that is pertinent to the
motion.” Fed. R. Civ. P. 12(d). Alternatively, a defendant may
plead the statute of limitations as a defense and file a motion
for summary judgment with supporting affidavits. See Early

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No. 24-1151 23
v. Bankers Life & Casualty Co., 959 F.2d 75, 78 (7th Cir. 1992)
(describing these procedures). A district court may also hold
an evidentiary hearing to supplement the record before ruling
on a motion to dismiss on a statute of limitations defense. E.g.,
Clark, 116 F.3d at 276–77 (reviewing for abuse of discretion a
district court’s decision to deny equitable tolling after two-
day bench trial). Following these procedures allows the issue
to be “fully developed at trial” or to “come up to us with a
full, or least a fuller, factual picture.” Early, 959 F.2d at 78.
The district court did not convert defendants’ motion to
dismiss into a motion for summary judgment, nor could it
have. The generalized allegations in Watkins’ response brief
on which the court relied were not presented in affidavit form,
as would have been required by Rule 56(c)(1)(A). The court
also did not consider, at least on the record, whether an evi-
dentiary hearing was needed to supplement the record on eq-
uitable tolling. Because the court dismissed Watkins’ FTCA
claim for failure to state a claim, we review de novo its rejec-
tion of Watkins’ equitable tolling argument.
C. Equitable Tolling at the Pleading Stage
We begin our analysis by clarifying the period for which
Watkins is seeking equitable tolling. The district court’s anal-
ysis rested on a significant factual and legal error. It thought
that Watkins needed to establish that the limitations period
was tolled until April 15, 2021, the date this suit was docketed.
He did not.
A plaintiff whose claim is untimely needs to establish that
the limitations period was tolled until he filed his complaint.
In most civil litigation, a complaint is deemed filed when it is
received by the court. See Fed. R. Civ. P. 3; Gilardi v. Schroeder,

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24 No. 24-1151
833 F.2d 1226, 1233 (7th Cir. 1987). But Watkins was incarcer-
ated at the time he filed this suit, so the prison-mailbox rule
applies. Under the prison-mailbox rule, Fed. R. App. P. 4(c),
“an inmate’s notice of appeal is deemed filed not when re-
ceived by the court but rather when delivered to prison offi-
cials for mailing.” Censke v. United States, 947 F.3d 488, 490 (7th
Cir. 2020), citing Houston v. Lack, 487 U.S. 266, 276 (1988); Tay-
lor v. Brown, 787 F.3d 851, 858–59 (7th Cir. 2015) (explaining
that prison-mailbox rule also applies to all district-court fil-
ings). Assuming Watkins delivered his new complaint and
summons to prison staff for mailing on March 24, 2021, his
FTCA claim was timely if the limitations period was tolled
until March 24.
The district court’s failure to apply the prison-mailbox
rule was an error of law that caused its equitable tolling anal-
ysis to rely on an error of fact. An equitable tolling decision
must rest on an accurate assessment of the period for which
the plaintiff is seeking tolling. When a district court’s equita-
ble tolling analysis relies on an erroneous fact or misconcep-
tion of the law, we have remanded so that the district court
can take a fresh look. E.g., Socha I, 621 F.3d at 670–73 (clarify-
ing the facts on which the district court relied to deny equita-
ble tolling and remanding for further consideration). Keeping
that in mind, we proceed to the core of the argument on ap-
peal.
Watkins offers Hill v. United States, 762 F.3d 589 (7th Cir.
2014), for guidance. In Hill, the counseled plaintiff filed his
FTCA claim nineteen months after the statute of limitations
expired. In opposition to the government’s motion for sum-
mary judgment, the plaintiff argued that equitable tolling
should excuse his delay. The district court rejected the

-- 24 of 45 --

No. 24-1151 25
plaintiff’s equitable tolling argument, reasoning that he had
failed to exercise due diligence. Because we determined that
the district court’s decision was cursory and premature, we
remanded for further fact-finding and consideration. Id. at
591. In Watkins’ view, remand is also warranted in his case
because he may be able to carry his burden on equitable toll-
ing after developing a more robust factual record. We agree.
The district court’s conclusion that Watkins could not benefit
from equitable tolling was at least premature.
Regardless of the stage of litigation, a district court errs
when it makes an equitable tolling decision based on insuffi-
cient or incorrect facts. See Schmid, 825 F.3d at 350. But dis-
missing a complaint as untimely at the pleading stage is espe-
cially likely to be erroneous because, as explained above, the
record will usually be insufficient to make a sound decision
on equitable tolling.
When a plaintiff raises equitable tolling in opposition to a
motion to dismiss, the district court’s task is limited to deter-
mining whether the plaintiff might show that he satisfies the
conditions for equitable tolling on a full record. If so, the
plaintiff’s claim is not “indisputably time-barred,” see Small,
398 F.3d at 898, and dismissal for untimeliness under Rule
12(b)(6) is inappropriate. See Early, 959 F.2d at 80–81 (finding
Rule 12(b)(6) dismissal premature where plaintiff alleged
facts in his brief and at appellate oral argument that could jus-
tify equitable tolling); see also Clark v. City of Braidwood, 318
F.3d 764, 768 (7th Cir. 2003) (finding Rule 12(b)(6) dismissal
premature where plaintiff alleged facts that could establish a
defense to the statute of limitations under the discovery rule);
Sidney Hillman Health Ctr. v. Abbott Laboratories, Inc., 782 F.3d
922, 928–29 (7th Cir. 2015) (reversing premature dismissal).

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26 No. 24-1151
A plaintiff defending against a motion to dismiss may, in
his brief, hypothesize facts that if proven would establish the
timeliness of his complaint. Early, 959 F.2d at 79. He need not
amend his complaint with new facts or submit evidence in
support of his factual allegations. Id. Like interpreting a com-
plaint, determining whether equitable tolling might be avail-
able on a more complete factual record is what the Supreme
Court has called a “context-specific task that requires the re-
viewing court to draw on its judicial experience and common
sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). If the plain-
tiff’s factual allegations make the availability of equitable toll-
ing ambiguous, it is best to defer decision until a full record is
developed for summary judgment or trial.
D. Watkins’ Equitable Tolling Argument
Applying those principles to Watkins’ case reveals that the
district court’s dismissal of his FTCA claim was premature. At
summary judgment or trial, a plaintiff seeking equitable toll-
ing for his FTCA claim bears the burden of establishing “that
(1) she ‘diligently’ pursued her claim; and (2) ‘some extraor-
dinary circumstances’ prevented her from timely filing her
complaint.” Blanche v. United States, 811 F.3d 953, 962 (7th Cir.
2016), first citing Credit Suisse Securities (USA) LLC v. Sim-
monds, 566 U.S. 221, 227 (2012), and then citing Menominee In-
dian Tribe of Wisc. v. United States, 577 U.S. 250, 256 (2016).
Equitable tolling does not require perfect or “maximum
feasible diligence”—reasonable diligence is enough. Holland
v. Florida, 560 U.S. 631, 653 (2010), quoting Starns v. Andrews,
524 F.3d 612, 618 (5th Cir. 2008). If a plaintiff shows both ex-
traordinary circumstances and reasonable diligence, the court
must weigh those considerations against the possibility of
prejudice to the defendant. Menominee Indian Tribe, 577 U.S. at

-- 26 of 45 --

No. 24-1151 27
259 n.5; Donald v. Cook County Sheriff’s Dep’t, 95 F.3d 548, 562
(7th Cir. 1996). Watkins has shown that he may be able to es-
tablish both elements, and neither the government nor the
district court has identified any prejudice caused by the delay.
1. Extraordinary Circumstances
Watkins has identified two potential extraordinary cir-
cumstances outside of his control that prevented him from fil-
ing this suit within the six-month limit. First, Watkins alleges
that disruptions to prison mail service caused by COVID-19
caused him to receive notice of the dismissal of his timely suit
in Watkins I after the six-month limitation period for filing his
FTCA claim had already run. We have explained that “inade-
quate notice” is one of the “factors which may justify equita-
ble tolling.” Donald, 95 F.3d at 562 (internal quotation marks
omitted), quoting Baldwin County Welcome Center v. Brown, 466
U.S. 147, 151 (1984). Until Watkins was notified of the dismis-
sal of Watkins I, he did not have any reason to believe he
needed to do anything more to preserve his FTCA claim. As
the district court recognized, “equitable tolling may well ap-
ply until the date Watkins did learn of the dismissal (or
shortly thereafter).”
Second, Watkins alleges that policies implemented by the
Bureau of Prisons to prevent the spread of COVID-19 pre-
vented him from filing his second suit on time. Specifically,
he alleges that the limitations period expired while he was
isolated in quarantine without access to documents, mail,
phones, or a computer. The district court recognized—and we
agree—that periods of quarantine can constitute extraordi-
nary circumstances. During those periods of isolation, the
judge wrote, “it was nearly impossible for Watkins to pursue
his claims with reasonable diligence.”

-- 27 of 45 --

28 No. 24-1151
The district court, however, rejected Watkins’ argument
that COVID-19 restrictions broadly impeded his ability to file
this suit after he left quarantine on February 3. It is not clear
from the court’s opinion whether it believed that COVID-19
restrictions other than quarantine could never be extraordi-
nary circumstances, or only that they did not qualify as ex-
traordinary on the facts of Watkins’ case. It characterized
other district courts in the Seventh Circuit as holding that
“‘limitations caused by the COVID-19 pandemic’ in prisons
… do not constitute ‘extraordinary circumstances.’” But not-
withstanding that unqualified statement, the court and all the
cases it cited emphasized the plaintiff’s or petitioner’s failure
to explain how COVID-19 restrictions actually affected his
ability to file on time.
To the extent the district court might have believed that
COVID-19 restrictions could never be extraordinary circum-
stances, we respectfully believe that would have been too nar-
row a view of its discretion. COVID-19 restrictions other than
quarantine may qualify as extraordinary circumstances. Like
any other proposed extraordinary circumstances, COVID-19
restrictions would justify equitable tolling only if they actu-
ally caused Watkins’ delay. But if Watkins explains more fully
how COVID-19 restrictions impeded his ability to pursue his
claim, it would certainly be within the district court’s discre-
tion to find that the COVID-19 pandemic and its attendant
disruption were extraordinary circumstances justifying equi-
table tolling. See, e.g., Rivera v. Harry, No. 20-3990, 2022 WL
93612, at *5 (E.D. Pa. Jan. 10, 2022) (finding equitable tolling
warranted because the petitioner was “unable to timely file
the Petition due to the prison’s safeguards against the
COVID-19 pandemic”).

-- 28 of 45 --

No. 24-1151 29
The evaluation will need to be case-specific, considering
how multiple obstacles may have worked together to delay
Watkins’ response to the confounding news that his first and
timely lawsuit had been dismissed. The district court specifi-
cally rejected the proposition that Watkins’ limited access to
the law library and legal papers could amount to extraordi-
nary circumstances, citing district court cases rejecting those
restrictions as grounds for equitable tolling. But we have pre-
viously found equitable tolling to be available where the in-
carcerated petitioner’s limited access to his legal papers and
the law library would have made it “nearly impossible … to
craft a meaningful petition before the deadline.” Socha II, 763
F.3d at 686–87; see also Schmid, 825 F.3d at 350 (“inability to
access vital papers” is a potentially extraordinary circum-
stance). The court will also need to take into account the chal-
lenge Watkins faced when he was notified, after the six-month
limitations period had already expired, that his timely lawsuit
had been dismissed. It is difficult to imagine even a trained
lawyer, let alone a prisoner acting pro se, responding to that
challenge effectively without access to legal research materi-
als and sufficient time to use them.
Moreover, prison restrictions caused by the COVID-19
pandemic may amount on their own to extraordinary circum-
stances even if they resemble prison restrictions imposed for
other reasons or rejected as grounds for equitable tolling in
other cases. The Supreme Court has cautioned against rigidly
applying precedent when making an equitable tolling deci-
sion. Holland, 560 U.S. at 650 (“[Courts of equity] exercise
judgment in light of prior precedent, but with awareness of
the fact that specific circumstances, often hard to predict in
advance, could warrant special treatment in an appropriate
case.”). Consistent with Holland, we have explained that

-- 29 of 45 --

30 No. 24-1151
equitable tolling analysis requires the use of a “‘flexible’
standard that encompasses all of the circumstances that [a
plaintiff] faced and the cumulative effect of those circum-
stances.” Socha II, 763 F.3d at 686, citing Holland, 560 U.S. at
650. Given the flexibility inherent in the equitable tolling
standard, cases that have rejected equitable tolling based on
inadequate library access or similar conditions may be rele-
vant but not dispositive. See Estremera v. United States, 724
F.3d 773, 777 (7th Cir. 2013) (noting that we have disallowed
equitable tolling based on lack of library access “on the facts
of those cases”).
Right now, the record does not contain enough infor-
mation to determine whether the COVID-19 restrictions at the
prison where Watkins was incarcerated rose to the level of ex-
traordinary circumstances. But on remand, Watkins may be
able to show that COVID-19 restrictions made it nearly im-
possible for him to file this suit any sooner than he did.
2. Reasonable Diligence
As for reasonable diligence, the district court noted that
“once ‘an obstacle that prevents filing a suit is removed’” the
litigant must sue within a reasonable period of time. It con-
cluded that Watkins failed to “provide any justification for the
delay in his filing” of this suit, which asserted “substantially
the same claims” as Watkins I. Specifically, Watkins failed to
show that he “did not have access to his papers, the law li-
brary, or the mail … while he was out of quarantine.” 2023
WL 8527414, at *5.
We do not have enough information to conclude that Wat-
kins was not reasonably diligent during the periods that he
was not in quarantine. Some of the information we do have

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No. 24-1151 31
suggests the opposite. We know that Watkins pursued his first
suit diligently, even though that suit was dismissed for rea-
sons out of his control. He filed the complaint in Watkins I just
eighteen days after receiving a final administrative decision,
and he filed an application for leave to proceed in forma pau-
peris before being ordered to do so by the court. Due to
COVID-19 related delays in the mail, Watkins could not cor-
rect the deficiencies in his in forma pauperis applications so
that his first, timely suit could go forward. While Watkins’ dil-
igence in filing Watkins I did not necessarily carry over into this
suit, it is relevant context because it shows that Watkins was
actively pursuing his judicial remedies. See Irwin, 498 U.S. at
96 (“We have allowed equitable tolling in situations where the
claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period ….”).
Although we can sometimes discern that a litigant was not
reasonably diligent based on the pleadings, e.g., Sidney Hill-
man Health Ctr., 782 F.3d at 930–31, that conclusion is not war-
ranted here. After February 3, Watkins spent only 36 days out
of quarantine before filing this suit. It is unlikely that Watkins
could have acted immediately after leaving quarantine. As a
pro se plaintiff, it would not have been immediately obvious
to Watkins whether he still had a viable FTCA claim after the
limitations period expired. As noted above, he would have
needed to do legal research to learn that he could seek the
modification of the judgment in Watkins I under Rule 59 or
relief from the judgment under Rule 60. He would have also
needed to do legal research to determine whether there were
grounds for appealing the dismissal of Watkins I or to discover
that equitable tolling was available.

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32 No. 24-1151
In light of those procedural complexities, the district
court’s observation that this suit asserts the same claims as
Watkins I is not probative of reasonable diligence. “It is haz-
ardous to conjecture about the amount of time a filing should
have taken based on the end result” because “sometimes it
takes longer to review the possibilities” and “discard the least
promising.” Socha II, 763 F.3d at 688. From our vantage point
it is not facially unreasonable for an unrepresented prisoner-
plaintiff to take 36 days to research his legal options and de-
cide how to proceed, especially with a problem as tricky as
this one involving deadlines for appeal and possible Rule 59
and 60 motions.
We do not yet know the other ways that the COVID-19
pandemic may have affected Watkins’ prison and his ability
to pursue his claim, and we will not speculate at this time.
Because these kinds of factual determinations are “not appro-
priately made at the pleadings stage,” Sidney Hillman Health
Ctr., 782 F.3d at 928, we have remanded for fact-finding on
reasonable diligence for far longer periods of delay. See Hill,
762 F.3d at 590–91 (remanding for fact-finding on whether
plaintiff was reasonably diligent during a nineteen-month de-
lay); Early, 959 F.2d at 77, 80–81 (remanding for fact-finding
on whether plaintiff was reasonably diligent during a nearly
year-long delay). And those cases did not involve a public
health crisis, like COVID-19, that affected what qualifies as
reasonable diligence. Although Watkins has not yet detailed
how he was reasonably diligent during the relevant 36-day
period, he could submit an affidavit explaining his efforts to
refile this suit and how they were affected by COVID-19 re-
strictions. “It is best to await a final decision rather than leap
into a subject that evidence may cast in a new light.” Reiser v.
Residential Funding Corp., 380 F.3d 1027, 1030 (7th Cir. 2004)

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No. 24-1151 33
(affirming denial of motion to dismiss where plaintiff may
have been able to establish equitable tolling on more complete
factual record).
3. Proceedings on Remand
Because Watkins has alleged facts that may amount to ex-
traordinary circumstances, and the record does not compel
the conclusion that he was not reasonably diligent, his FTCA
claim is not indisputably time-barred. Watkins has done
enough to have the opportunity to develop the record sup-
porting his equitable tolling argument. The district court is
best positioned to undertake this “equitable, often fact-inten-
sive inquiry,” in the first instance. Holland, 560 U.S. at 654,
quoting Gonzalez v. Crosby, 545 U.S. 524, 540 (2005) (Stevens,
J., dissenting). As it reconsiders Watkins’ claim, we encourage
the district court to “keep in mind the flexibility that is often
appropriate for pro se litigants, who are likely not well versed
in complex procedural rules.” Socha I, 621 F.3d at 673.
We note two things in closing. First, neither the district
court nor the government has suggested that tolling the limi-
tations period would prejudice the government in any way.
The administrative claim process gave the government notice
of his underlying claim. In addition, Watkins timely filed his
first suit, putting the government on notice of his intent to
pursue the claim. If Watkins can establish extraordinary cir-
cumstances and reasonable diligence, the district court
should consider the apparent lack of prejudice to the govern-
ment when determining whether the balance of equities fa-
vors tolling the statute of limitations. See Baldwin County, 466
U.S. at 152 (absence of prejudice is “a factor to be considered
in determining whether the doctrine of equitable tolling
should apply once a factor that might justify such tolling is

-- 33 of 45 --

34 No. 24-1151
identified” but is not independent basis for invoking doc-
trine), quoted in Menominee Indian Tribe, 577 U.S. at 259 n.5;
Hill, 762 F.3d at 590 (finding it relevant that neither district
court nor government suggested that government had been
prejudiced by plaintiff’s untimely filing).
Second, the government argues that even if the statute of
limitations was tolled for nine days between January 11 and
January 20 (the period between Watkins entering quarantine
for the first time and the lapse of the six-month limitations
period), that extension would toll the statute of limitations
only to February 12, nine days after Watkins left his first stint
in quarantine. The government cites no authority for the
proposition that a district court should count up the days dur-
ing which an obstacle prevents a plaintiff from filing a suit
and credit him exactly that many days on the back end.
Equitable tolling does not “bring about an automatic ex-
tension of the statute of limitations by the length of the tolling
period or any other definite term.” Cada v. Baxter Healthcare
Corp., 920 F.2d 446, 452 (7th Cir. 1990). The “doctrine of equi-
table tolling gives the plaintiff just so much extra time as he
needs, despite all due diligence on his part, to file his claim.”
Heck v. Humphrey, 997 F.2d 355, 357 (7th Cir. 1993) (emphasis
omitted), aff’d on other grounds, 512 U.S. 477 (1994); accord,
Chapple v. Nat’l Starch & Chemical Co. & Oil, 178 F.3d 501, 506
(7th Cir. 1999) (plaintiff seeking equitable tolling must have
“brought the suit as soon as it was practicable”); Booker v.
Ward, 94 F.3d 1052, 1057 (7th Cir. 1996) (equitable tolling
“gives the plaintiff only the extra time that he needs, despite
all due diligence on his part, to file his claim” (citing Heck, 997
F.2d at 357)). On remand, if the district court finds that Wat-
kins has established extraordinary circumstances warranting

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No. 24-1151 35
equitable tolling, the limitations period should be tolled for as
long as Watkins was reasonably diligent. No more but also no
less.
The judgment of the district court is REVERSED, and this
case is REMANDED for further proceedings consistent with
this opinion.

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36 No. 24-1151
KIRSCH , Circuit Judge, concurring in the judgment in part
and dissenting in part. Jordan Watkins sued medical staff at a
pretrial detention center under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleg-
ing inadequate medical treatment for chronic pain and swell-
ing after a hernia operation. Because this claim presents a new
context that risks further intrusion on legislative and execu-
tive prerogatives, I cannot agree with the decision to reinstate
it and respectfully dissent. However, I agree that we should
remand Watkins’s claim under the Federal Tort Claims Act,
28 U.S.C. § 1346(b), so the district court can revisit his entitle-
ment to equitable tolling on a more developed record. I write
separately on this issue because I feel the majority goes too far
by instructing the district court on how it must evaluate the
merits of this argument.
I
Bivens remains good law for now. Plaintiffs can still main-
tain causes of action for certain constitutional violations un-
der Bivens, Davis v. Passman, 442 U.S. 228 (1979), and Carlson
v. Green, 446 U.S. 14 (1980). But as the Supreme Court has
made clear, if a case presents a new context that is “meaning-
fully different” from one of these three cases, we cannot au-
thorize a remedy if any “special factors” counsel hesitation.
Egbert v. Boule, 596 U.S. 482, 492 (2022) (cleaned up); Ziglar v.
Abbasi, 582 U.S. 120, 136 (2017). This inquiry often collapses
into a “single question: whether there is any reason to think
that Congress might be better equipped to create a damages
remedy.” Egbert, 596 U.S. at 492.
The majority extends Carlson to a new context despite the
Court’s explicit instruction not to. Resisting this conclusion,
the majority overreads our holding in Brooks v. Richardson, 131

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No. 24-1151 37
F.4th 613 (7th Cir. 2025), to declare that any claim that “a fed-
eral prison’s staff provided constitutionally deficient medical
care” fits “squarely” within the context of Carlson. Ante, at 7–
8 (quoting Brooks, 131 F.4th at 615). This outcome is untenable
under the Court’s decisions curtailing the reach of the Bivens
doctrine and its broad understanding of what constitutes a
new context. Ziglar, 582 U.S. at 130; Hernández v. Mesa, 589
U.S. 93, 102 (2020).
As a threshold matter, the majority misapprehends the po-
tential scope of Watkins’s claim. Watkins was a pretrial de-
tainee for most of his time at the Metropolitan Correctional
Center (MCC), which serves as a temporary holding facility
for pretrial detainees and inmates serving brief sentences. Af-
ter pleading guilty, Watkins remained at the MCC as a con-
victed prisoner for 11 days until his transfer to a permanent
prison facility. While Watkins’s post-conviction care is subject
to the Eighth Amendment, any claims arising from alleged
mistreatment before his guilty plea are governed by the Fifth
Amendment. This means that any claims predicated on pre-
conviction conduct inevitably arise under a different consti-
tutional provision from Carlson, which authorized a remedy
for Eighth Amendment violations. 446 U.S. at 17–18. And as
the Court instructed in Ziglar, we must consider “the consti-
tutional right at issue” when analyzing Bivens contexts. 582
U.S. at 139–40. The majority largely ignores this issue, reason-
ing that “defendants always had a constitutional duty to re-
spond reasonably to [Watkins’s] known serious medical
needs.” Ante, at 10 n.3. While true, this fails to appreciate that
claims under the Fifth Amendment undoubtedly present a
new context from Carlson. Stanard v. Dy, 88 F.4th 811, 818 (9th
Cir. 2023) (although post-sentencing Eighth Amendment
claims could proceed, “[t]here is little doubt that [plaintiff’s]

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38 No. 24-1151
Fifth Amendment claim does present a new context” from
Carlson). This blow is not necessarily fatal to the entire suit,
because we analyze Bivens actions claim-by-claim. See Egbert,
596 U.S. at 493–502. But because claims arising out of conduct
that occurred while Watkins was a pretrial detainee neces-
sarily present a new context from Carlson, our analysis must
focus more narrowly on the few days when he was held as a
prisoner at the MCC.
We must therefore ask whether the alleged misconduct
during these 11 days presents a new context from Carlson. As
in Carlson, Watkins alleges that federal correctional staff pro-
vided constitutionally deficient medical care. But this does
not end the analysis; even when a case presents “significant
parallels” to an existing Bivens case, “a modest extension is
still an extension.” Ziglar, 582 U.S. at 147. The Court has pro-
vided a non-exhaustive list of factors to consider when decid-
ing whether a claim involves a new context. Id. at 139–40. We
have simplified the inquiry: a case is meaningfully different,
and therefore a new context, “when it involves a factual dis-
tinction or new legal issue that might alter the policy balance
that initially justified the implied damages remedies in the
Bivens trilogy.” Snowden v. Henning, 72 F.4th 237, 239 (7th Cir.
2023). We may not recognize a cause of action “if there is even
a single reason to pause” before doing so. Egbert, 596 U.S. at
492 (cleaned up). There are at least two reasons in this case.
First, Watkins's injury differs meaningfully, in both nature
and severity, from the medical conditions at issue in Carlson
and Brooks. In both cases, prisoners experienced an acute
medical emergency that should have received immediate
treatment to avoid serious injury or death. Green v. Carlson,
581 F.2d 669, 671 (7th Cir. 1978) (prisoner died because

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No. 24-1151 39
defendants failed to give him competent medical treatment
for eight hours during an extreme asthma attack); Brooks, 131
F.4th at 614 (prisoner with acute appendicitis was severely in-
jured when his appendix burst because defendants refused to
send him to a hospital for ten days). By contrast, Watkins had
a chronic, non-emergent medical condition that required con-
tinuous, periodic treatment over several months. Courts reg-
ularly find that these types of differences create new contexts.
See Johnson v. Terry, 119 F.4th 840, 859 (11th Cir. 2024) (new
context when the “severity, type, and treatment” of the inju-
ries “differ[ed] significantly from those of the prisoner in Carl-
son”); Rowland v. Matevousian, 121 F.4th 1237, 1243 (10th Cir.
2024) (new context when plaintiff did not die and defendants
conservatively treated his hernia before operating); Wal-
termeyer v. Hazlewood, 136 F.4th 361, 367–68 & n.4 (1st Cir.
2025) (distinguishing Brooks, 131 F.4th at 614–15); see also
Bulger v. Hurwitz, 62 F.4th 127, 138 (4th Cir. 2023) (“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[,]” thus constituting a “meaningful difference”).
According to the majority, these differences are but a “var-
iation on a theme” that we already rejected in Brooks, ante, at
11–13, but this stretches Brooks far beyond its facts. To be sure,
in Brooks we found the length of time prison medical staff
failed to treat an acutely ill prisoner and the fact that he did
not die more pertinent to the merits than to context. Brooks,
131 F.4th at 615. And, as we recognized, all prison medical
care implicates resource constraints. Id. at 615–16. But this
doesn’t mean the nature of the medical condition and its treat-
ment are irrelevant to the context of a Bivens claim. Because
prison medical facilities are generally designed to treat

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40 No. 24-1151
occasional, acute illnesses, the long-term management of
chronic conditions necessarily involves substantial non-med-
ical considerations beyond those incident to emergency treat-
ment. Stacy L. Gavin, What Happens to the Correctional System
When a Right to Health Care Meets Sentencing Reform, 7 NAELA
J. 249, 254–55 (2011). For example, because prisons do not tra-
ditionally house specialists or diagnostic and testing equip-
ment, chronically ill prisoners in need of these services fre-
quently must be seen by offsite providers. Id.; see also Doug-
las C. McDonald, Medical Care in Prisons, 26 Crime. & Just. 427,
443 (1999). And because prisoners must be transported and
monitored by armed guards at all times, these visits generate
significant costs and risks on top of the need to schedule and
pay for the care itself. Gavin, supra, at 255.
The majority points out that the defendants in Carlson had
mismanaged the prisoner’s asthma long before the attack that
led to his death. Ante, at 12. But while the attack was precipi-
tated by this period of negligence, the undeniable core of the
claim in Carlson pertained to the total failure to administer
proper treatment for a life-threatening medical emergency.
Thankfully, unlike the prisoners in Carlson and Brooks, Wat-
kins’s condition never came close to endangering his life. In-
stead, his claim is cabined to the prison’s insufficient manage-
ment of a chronic, non-emergent condition. Specifically, he
complains that MCC medical staff conservatively treated him
with pain medication and did not arrange a follow-up ap-
pointment with the outside physicians that performed his
hernia operation before his transfer. In other words, Watkins
asks us to wade into a dispute involving scheduling and ad-
ministrative considerations that were absent in Carlson.

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No. 24-1151 41
The majority dismisses this concern, assuming that the
Court in Carlson must have anticipated judicial scrutiny of
prison administration. Ante, at 12. This misses the mark. Of
course Carlson “approved of some intrusion into the function-
ing of federal prisons.” Sargeant v. Barfield, 87 F.4th 358, 367
(7th Cir. 2023). The question is whether a “claim threatens to
intrude in ways Carlson did not contemplate.” Id. In this case,
Watkins’s claim directly implicates broader issues within the
prison healthcare system—namely, how prisons must con-
tract, schedule, and coordinate appointments with outside
providers. This is a factual distinction that “might alter the
cost-benefit balance that justified an implied damages rem-
edy” in Carlson, creating a new context. Snowden, 72 F.4th at
244. Acknowledging this factual difference is not an attempt
to “smuggle” a potential defense into the pleading stage.
Ante, at 16 (quoting Brooks, 131 F.4th at 616). On the contrary,
the majority’s decision to ignore it threatens to interfere with
prison operations in ways Carlson did not anticipate.
Second, Watkins’s injuries arose in a different context than
the prisoner in Carlson. As a pretrial detention center, the
MCC is an inherently transitory facility. Indeed, during the
relevant period for his Eighth Amendment claim, Watkins
was facing an imminent transfer to a permanent facility. By
contrast, the prisoners in Carlson and Brooks were housed in
permanent prison facilities without any scheduled transfers
when their claims arose. The majority diminishes these differ-
ences, since theoretically all federal prisoners are subject to
transfer at any time. Ante, at 11. But the abstract possibility of
a transfer is a far cry from Watkins’s impending placement in
a permanent prison. And, importantly, detention centers such
as the MCC face a unique set of challenges given the type and
number of detainees they house on a temporary basis.

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42 No. 24-1151
Marquez v. Rodriguez, 81 F.4th 1027, 1031 (9th Cir. 2023) (de-
scribing how “jails and prisons are operated differently” be-
cause “[j]ails are typically smaller than prisons, they are not
intended for long-term detention, and they house a different
class of inmates”).
To bolster its position, the majority argues that Carlson al-
ready accounted for this type of policy consideration because
the defendants there kept the prisoner in a particular facility
against medical advice. Ante, at 13. But the comparison is un-
availing. In this case, defendants operated out of an entirely
transitory facility and, accordingly, had to balance any deci-
sions regarding follow-up consultations, appointments with
off-site providers, and long-term care against the administra-
tive and logistical realities of Watkins’s fast-approaching
transfer to a new facility. Any claim in this context therefore
requires us to “factor in a sensitive mixture of things we are
ill-positioned to assess,” as it “invariably implicate[s] housing
policies” and transfer decisions particular to Watkins’s tran-
sitory situation. Sargeant, 87 F.4th at 367. The policy consider-
ations at stake here are thus separate and distinct from those
bearing on the decision in Carlson to not transfer a particular
prisoner from his long-term placement.
At minimum, Watkins asks us to interfere with prisons in
ways that Carlson did not contemplate. See id. But I am even
more concerned by the systemic implications of recognizing a
cause of action for these sorts of claims. It is impossible, at this
juncture, to know exactly how the majority’s decision will im-
pact the operation of pretrial detention centers and their rela-
tionship to the rest of the BOP. This uncertainty is particularly
troubling given the prevalence of chronic conditions in the
prison population. AmeriHealth Administrators, The

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No. 24-1151 43
Challenge of Correctional Health Care 2 (2015) (estimating
that approximately 40% of all prisoners report at least one se-
rious chronic medical condition). We simply “cannot predict
the ‘systemwide’ consequences of recognizing a cause of ac-
tion” under these circumstances. Egbert, 596 U.S. at 493 (quot-
ing Ziglar, 582 U.S. at 136); see also Goldey v. Fields, 606 U.S.
__, 2025 WL 1787625, at *2 (2025) (declining to recognize a
Bivens cause of action for an Eighth Amendment excessive-
force claim because it “could have negative systemic conse-
quences for prison officials and the ‘inordinately difficult un-
dertaking’ of running a prison”) (quoting Turner v. Safley, 482
U.S. 78, 84–85 (1987)). This “uncertainty alone is a special fac-
tor that forecloses relief.” Egbert, 596 U.S. at 493. Congress, ra-
ther than the judiciary, is far “better equipped” to fashion a
remedy given these competing considerations. Id. at 492.
Appellate courts continue to struggle with the Court’s lim-
ited guidance on how to conduct a “new context” analysis. In
practice, whether a given cause of action proceeds depends
largely on what differences are meaningful to a particular
panel of judges. The result has been a flood of inconsistent
case law across and within circuits.* In my view, today’s de-
cision adds to this growing discordance. Despite our mandate
not to, it extends Carlson to a new context that risks further
* For instance, despite its permissive stance on the nature and extent
of the injury for Carlson claims, the Fifth Circuit requires a near exact fac-
tual match in the Fourth Amendment Bivens context. Compare Carlucci v.
Chapa, 884 F.3d 534, 536–38 (5th Cir. 2018), with Oliva v. Nivar, 973 F.3d
438, 442–43 (5th Cir. 2020). And while the Tenth Circuit considers the se-
verity of the injury and type of treatment when assessing Carlson suits, it
finds the presence of a warrant and location of arrest insignificant for
Bivens actions. Compare Rowland, 121 F.4th at 1243, with Logsdon v. U.S.
Marshall Serv., 91 F.4th 1352, 1357–58 (10th Cir. 2024).

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44 No. 24-1151
encroachment on legislative and executive functions. Egbert,
596 U.S. at 493. Mindful that “our watchword is caution,” Her-
nández, 589 U.S. at 101, I disagree with the majority’s decision
to take this risk.
II
As for Watkins’s FTCA claim, I agree with my colleagues
that de novo review is appropriate because it was dismissed
for failing to state a claim under Federal Rule of Procedure
12(b)(6). Considering this standard, I also agree that dismissal
was premature. The statute of limitations is an affirmative de-
fense, so “it is rarely a good reason to dismiss under Rule
12(b)(6).” Reiser v. Residential Funding Corp., 380 F.3d 1027,
1030 (7th Cir. 2004). Watkins was not required to anticipate or
overcome it in his complaint, Sidney Hillman Health Ctr. v. Ab-
bott Labs., Inc., 782 F.3d 922, 928 (7th Cir. 2015), nor was he
obligated to respond to the government’s motion to dismiss
with an affidavit or other evidence supporting his request for
equitable tolling, Early v. Bankers Life & Cas. Co., 959 F.2d 75,
79 (7th Cir. 1992). Because his claim is not undisputedly time
barred, remand is warranted for further factual development.
On a more complete record, the district court can properly de-
cide whether to toll the limitations period under the standard
articulated by the majority.
In my view, however, the majority places too heavy a ju-
dicial thumb on Watkins’s side of the scale. It opines that 36
days is not a facially unreasonable amount of time for Wat-
kins to research and evaluate his legal options, instructs the
district court to approach equitable tolling with “flexibility”
on remand, and even directs it to “consider the apparent lack
of prejudice to the government.” Ante, at 32–34 (quotation
omitted). Equitable tolling is an “extraordinary remedy that

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No. 24-1151 45
is rarely granted,” and it’s far from clear whether Watkins can
ultimately meet his burden to justify it. Carpenter v. Douma,
840 F.3d 867, 870 (7th Cir. 2016) (quotation omitted). While I
am comfortable sending the claim back for additional fact-
finding, we should refrain from “prejudg[ing] the issue” as
the majority seems to do. Hill v. United States, 762 F.3d 589,
591 (7th Cir. 2014).

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