Opposition Brief — Charles Brooks, et al., Petitioners v. Jeremy James Allen

Supreme Court briefNov 3, 2025

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No. 25-350

In the

Supreme Court of the United States



CHARLES BROOKS, ET AL.,

Petitioners,

JEREMY JAMES ALLEN,

Respondent.



On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit



BRIEF IN OPPOSITION



VINCENT J. MOCCIO

BENNEROTTE & ASSOCIATES LLP

3085 Justice Way, Ste. 200

Eagan, MN 55121

PHILLIP F. FISHMAN

PHILLIP FISHMAN LAW OFFICE

825 Nicollet Mall, Ste. 1600

Minneapolis, MN 55402

VINCENT W. MOCCIO

115 Valleyview Place

Minneapolis, MN 55419

MAHESHA P. SUBBARAMAN

Counsel of Record

SUBBARAMAN PLLC

80 S. 8th St., Ste. 900

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

November 3, 2025

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTION PRESENTED

Using the boilerplate phrase “[n]o action shall be

brought,” the Prison Litigation Reform Act of 1995

(or PLRA) requires prisoner-litigants to exhaust all

available administrative (prison) remedies. 42 U.S.C.

§1997e(a). In Jones v. Bock, 549 U.S. 199 (2007), this

Court held that the PLRA’s exhaustion rule carries

the same meaning as other affirmative defenses that

use the same boilerplate (like statutes of limitations).

Id. at 220. This reading means that absent express

PLRA text to the contrary, the PLRA abides by the

Federal Rules of Civil Procedure. Id. at 212.

Federal Rule of Civil Procedure 15 governs the

amendment of actions and application of the relation

back doctrine. Every precedential circuit decision to

apply Jones in the context of an amended complaint

has found that Rule 15 applies, making it possible in

some cases for an amended complaint to obviate a

PLRA exhaustion defense to an original complaint.

The Court, in turn, has denied review of this multicircuit consensus. Wexford Health v. Garrett, 140 S.

Ct. 1611 (2020). The Court has also reaffirmed Jones.

See Perttu v. Richards, 605 U.S. 460, 469–70 (2025).

The Court has even observed in dicta that a PLRA

exhaustion defense to an “original” complaint may be

“arguably cured” by a plaintiff’s “subsequent filings.”

Ramirez v. Collier, 595 U.S. 411, 423 (2022).

As a result, the question presented is whether

Rule 15 governs the effect of amended complaints for

purposes of PLRA exhaustion—a question on which

no genuine circuit split exists (i.e., post-Jones) and on

which no decision of this Court casts any doubt.

TABLE OF CONTENTS

Page

Question Presented.................................................

Table of Authorities ................................................ iii

Introduction ............................................................

Statement of the Case ............................................

A. Legal Overview.............................................

B. Facts & Procedural Background ................. 11

Reasons to Deny the Petition ................................. 19

I. The Eighth Circuit properly interpreted the

PLRA’s text as dictated by this Court’s

decisions in Jones and now Perttu .............. 19

II. There is no circuit split—only a strawman

contrived by ignoring Jones and Perttu ...... 25

III. This case is an even poorer vehicle for the

question presented than the 2020 Wexford

petition (which the Court denied) ............... 29

IV. Petitioners’ sky-is-falling policy arguments

lack merit while eliding Petitioners’ effort

to upset stable, even-handed rules.............. 31

Conclusion ............................................................... 32

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Bargher v. White,

928 F.3d 439 (5th Cir. 2019) ........... 3, 8, 27–28, 31

Baxter v. Rose,

305 F.3d 486 (6th Cir. 2002) ................................. 4

Cox v. Mayer,

332 F.3d 422 (6th Cir. 2003) ......................... 26–27

Edwards v. Prime, Inc.,

602 F.3d 1276 (11th Cir. 2010) ..................... 26–27

Garrett v. Wexford Health,

938 F.3d 69 (3d Cir. 2019) ................................. 7–8

Goldenberg v. Murphy,

108 U.S. 162 (1883) ............................................. 24

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

240 U.S. 251 (1916) ............................................. 31

Harris v. Garner,

216 F.3d 970 (11th Cir. 2000) ......... 4, 8, 22, 26–27

Heglund v. Aitkin Cnty.,

871 F.3d 572 (8th Cir. 2017) ............................... 16

Jackson v. Fong,

870 F.3d 928 (9th Cir. 2017) ........................... 6, 26

Jones Bey v. Johnson,

407 F.3d 801 (6th Cir. 2005) ................................. 4

Jones v. Bock,

549 U.S. 199 (2007) .......... 1, 4-8, 10, 19–23, 25–28

TABLE OF AUTHORITIES—cont’d

Page(s)

CASES—CONT’D

Mattox v. Edelman,

851 F.3d 583 (6th Cir. 2017) ............................... 26

May v. Segovia,

929 F.3d 1223 (10th Cir. 2019) ........... 7, 23, 27–28

Miller’s Heirs v. M’Intyre,

31 U.S. 61 (1832) ................................................. 24

Nerness v. Johnson,

401 F.3d 874 (8th Cir. 2005) ................................. 3

New Hampshire v. Maine,

532 U.S. 742 (2001) ............................................. 30

Norton v. City of Marietta,

432 F.3d 1145 (10th Cir. 2005) ............................. 3

Perttu v. Richards,

605 U.S. 460 (2025) .................. 1, 10, 19-22, 25–26

Ramirez v. Collier,

595 U.S. 411 (2022) ................................. 1, 8–9, 23

Rhodes v. Robinson,

621 F.3d 1002 (9th Cir. 2010) ........................... 6, 9

Royal Canin U.S.A., Inc. v. Wullschleger,

604 U.S. 22 (2025) ..................................... 9–10, 21

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) ............................................. 20

Smith v. Terry,

491 F. App’x 81 (11th Cir. 2012) ......................... 27

TABLE OF AUTHORITIES—cont’d

Page(s)

CASES—CONT’D

Stites v. Mahoney,

594 F. App’x 303 (7th Cir. 2015) ................... 22, 27

T Mobile Ne. LLC v. City of Wilmington, Del.,

913 F.3d 311 (3d Cir. 2019) ................................... 7

United States v. Bailey,

700 F.3d 1149 (8th Cir. 2012) ............................. 15

United States v. Harris,

124 F.4th 1088 (7th Cir. 2025) ............................ 27

United States ex rel. Polansky v. Exec.

Health Res., Inc., 599 U.S. 419 (2023) .................. 9

Wexford Health v. Garrett,

140 S. Ct. 1611 (2020) ..................................... 8, 25

STATUTORY PROVISIONS

28 U.S.C. §1292(b) .............................................. 18, 30

42 U.S.C. §1983 ......................................... 3, 13, 17, 24

42 U.S.C. §1997e(a)..................................................... 3

42 U.S.C. §1997e(g)(1) ............................................ 5–6

42 U.S.C. §1997e(h) .................................................... 3

Minn. Stat. §541.076(b) ................................ 15, 24, 29

Prison Litigation Reform Act of 1995,

Pub. L. No. 104-134, tit. VIII

110 Stat. 1321, 1321-71......................................... 3

TABLE OF AUTHORITIES—cont’d

Page(s)

RULES

Federal Rule of Civil Procedure 8(b)(6) ..................... 6

Federal Rule of Civil Procedure 15 ..............................

.................. 1, 7, 16, 18–19, 21–23, 25–28, 31

Federal Rule of Civil Procedure 15(c) ...... 7, 21, 23, 28

Federal Rule of Civil Procedure 15(c)

Advisory Committee Note (1966) ........................ 21

OTHER AUTHORITIES

Brief in Opposition (BIO),

Wexford Health v. Garrett, No. 19-867

(U.S. Mar. 11, 2020) ........................ 1, 8, 25–28 30,

Certiorari Petition (Cert. Pet.),

Wexford Health v. Garrett, No. 19-867

(U.S. Jan. 8, 2020) ....................................... 1, 8, 25

INTRODUCTION

In 2020, prison staff petitioned for review of

whether the Prison Litigation Reform Act (or PLRA)

allows an amended complaint to overcome a failureto-exhaust defense to a prisoner’s original complaint.

Cert. Pet. i, 9, Wexford Health v. Garrett, No. 19-867

(U.S. Jan. 8, 2020). This question rested on a mirage.

The Wexford petitioners conjured a circuit split based

on decisions that were non-precedential, inapposite,

or issued before Jones v. Bock, 549 U.S. 199 (2007)—

this Court’s seminal precedent on PLRA exhaustion.

BIO 22–27, Wexford, No. 19-867 (U.S. Mar. 11, 2020).

Circuit precedents applying Jones in actual cases of

amended complaints all concurred: PLRA exhaustion

abides Federal Rule of Civil Procedure 15. Id. And

under Rule 15’s regulation of amended pleadings and

‘relation back,’ an amended complaint may in some

cases moot a PLRA exhaustion defense. Id.

Petitioners in this case (prison staff) raise the

same question as the Wexford petitioners. But the

Eighth Circuit decision below only reaffirms the still

undivided view of the circuits that PLRA exhaustion

(as defined by Jones) abides Rule 15. See Pet. App. 6a–

7a. And following the decision below, this Court has

expressly reaffirmed Jones’s pivotal holding: “PLRA

exhaustion is … subject to ‘the usual practice under

the Federal Rules ….’” Perttu v. Richards, 605 U.S.

460, 468 (2025). Intervening Court dicta after the

Wexford petition further establishes that a PLRA

exhaustion defense to an “original” complaint may be

“arguably cured” by a prisoner’s “subsequent filings,”

including the submission of “an amended complaint.”

Ramirez v. Collier, 595 U.S. 411, 423 (2022).

So Petitioners are stuck conjuring the same

circuit-split mirage as the Wexford petitioners while

stressing the policy importance of PLRA exhaustion.

Pet. 8–13. In the words of Yogi Berra, “it’s déjà vu all

over again.” And compared to Wexford, this case is an

even worse vehicle for deciding Rule 15’s relationship

to PLRA exhaustion. Petitioners neglect the judicial

estoppel problem raised by their earlier successful

advocacy that the amended complaint here (not the

original) dictates when suit against Petitioners was

“brought.” Petitioners also neglect this case’s lack of

finality. Litigation is ongoing and Petitioners remain

able to prevail in several other ways that would moot

the need to review the question presented.

Finally, at bottom, Petitioners seek adoption of a

rule that makes no practical difference as a matter of

their own stated goal of vindicating exhaustion.

According to Petitioners, inmates with pending suits

who are released may not amend their suits to add

unexhausted claims. But Petitioners concede PLRA

exhaustion applies only to current prisoners. So all

inmates need to do to file suit on unexhausted (but

still timely) claims is wait until after their release to

sue—or after release, dismiss without prejudice their

original filed-in-jail actions and file new complaints.

Petitioners’ advocacy is nothing more tha a bid for a

more inefficient approach to prisoner litigation.

In sum: the Court made the right call five years

ago when it denied the Wexford petition. Nothing has

changed since then to merit a different result here. If

anything, review has become even less tenable given

this Court’s intervening PLRA and Federal Rules

jurisprudence, which bolsters the decision below.

STATEMENT OF THE CASE

A. Legal Overview

1. The Prison Litigation Reform Act of 1995

(PLRA) provides with respect to “a prisoner confined

in any jail, prison, or other correctional facility” that:

“[n]o action shall be brought with respect to prison

conditions under [42 U.S.C.] [§]1983 … or any other

[f]ederal law … until such administrative remedies as

are available are exhausted.” Pub. L. No. 104–134, tit.

VIII, §803(d), 110 Stat. 1321, 1321–71 (codified at 42

U.S.C. §1997e(a)). By definition, this exhaustion rule

applies only to persons who are “incarcerated or

detained” (i.e., current prisoners). 110 Stat. 1321–72

(“Definition”) (codified at 42 U.S.C. §1997e(h)).

The circuits uniformly agree on this, and it is not

disputed here: 1 a “plaintiff who seeks to bring suit

about prison life after he has been released … does not

have to satisfy the PLRA’s exhaustion requirements

before bringing suit.” Norton v. City of Marietta, 432

F.3d 1145, 1150 (10th Cir. 2005); see also Nerness v.

Johnson, 401 F.3d 874, 876 (8th Cir. 2005). So PLRA

exhaustion does not apply to the prisoner who (for

example) suffers an injury his last week in jail and

decides to postpone suing until after his release. No

PLRA text requires prisoners to file suits during their

incarceration or in a manner that assures PLRA

exhaustion will apply. See Bargher v. White, 928 F.3d

439, 448–49 (5th Cir. 2019).

See Defs. SJ Mem. 6, Allen v. Piepho, No. 21-cv-2689 (D.

Minn. May 12, 2023) (ECF 81) (“Th[e] exhaustion requirement

applies only to individuals who are incarcerated or detained, not

those who bring federal claims after being released ….”).

2. In the decade following the PLRA’s passage,

various circuits determined the mandatory phrasing

of PLRA exhaustion displaced normal civil litigation

standards, including the Federal Rules. For example,

singling out the word “action” in “no action shall be

brought,” the Sixth Circuit held the “plain language”

of PLRA exhaustion fixed a “total exhaustion rule”:

“complete dismissal … [when] a prisoner’s complaint

… alleges both exhausted and unexhausted claims.”

Jones Bey v. Johnson, 407 F.3d 801, 805–07 (6th Cir.

2005). This rule barred adherence to usual practices,

instead requiring prisoners to file all new complaints

that stated only unexhausted claims. Id.; see Baxter v.

Rose, 305 F.3d 486, 488–90 (6th Cir. 2002).

The Eleventh Circuit took a similar approach.

Singling out the word “brought” in “no action shall be

brought,” the Eleventh Circuit held that the “plain

language” of PLRA exhaustion mandated “a prisoner

must exhaust … before filing suit”—“amendment or

supplement” under the Federal Rules was “beside the

point.” Harris v. Garner, 216 F.3d 970, 974, 981 (11th

Cir. 2000) (en banc) (italics in original). On this view,

the PLRA required dismissal of prisoner suits filed in

jail that lacked exhaustion even though such

dismissal would be “without prejudice to re-filing …

when the plaintiff is released” (at which point, PLRA

exhaustion would not apply). Id. at 980. As far the

Eleventh Circuit was concerned, the PLRA afforded

no room for amendment to “make any difference” in

prisoner suits because the PLRA said “no action shall

be brought.” See id. at 983. The Eleventh Circuit also

stressed “[a]t the risk of being repetitive” that its view

was equally justified by the PLRA’s “purpose”: “to

stem … prisoner lawsuits.” Id. at 972, 983.

3. In 2007, the Court decided Jones v. Bock, 549

U.S. 199 (2007)—a unanimous decision on the proper

application of PLRA exhaustion. The Court held that

numerous circuits had “exceed[ed] the proper limits

on the judicial role” through their innovation of strict

hurdles that PLRA exhaustion did “not require[].” Id.

at 202. These innovated hurdles included the Sixth

Circuit’s “‘total exhaustion’ rule.” Id. at 206.

The Court acknowledged the Sixth Circuit’s rule

had a textual basis: “no action shall be brought.” Id.

at 221. Noting the “many” federal statutes that use

the same words—especially “statutes of limitations”

—the Court recognized these words were “boilerplate

language.” Id. at 220. And upon close examination of

statutes of limitations and other provisions featuring

the same boilerplate, the Court found zero support for

a total-exhaustion rule: “we have never heard of an

entire complaint being thrown out simply because one

of several discrete claims was barred by the statute of

limitations ….” Id. at 220–21. So the Court found that

the PLRA’s use of “no action shall be brought” abided

the “general rule”: when a complaint has “both good

and bad claims,” the court “proceeds with the good and

leaves the bad.” Id. at 221.

Through this analysis, the Court underscored its

general holding in Jones that the PLRA does not hide

procedural elephants in linguistic mouseholes.

“[W]hen Congress meant [in the PLRA] to depart from

the usual procedural requirements, [Congress] did so

expressly.” Id. at 216. For example, the PLRA states

that defendants “may waive the right to reply” and

this waiver “shall not constitute an admission.” 42

U.S.C. §1997e(g)(1). This text expressly departs from

the Federal Rules, which generally presume that

allegations are “admitted if … not denied.” Fed. R.

Civ. P. 8(b)(6). Based on this example and others, the

Court determined in Jones that when the PLRA lacks

comparable text on a given procedural matter, such

“silen[ce]” is “strong evidence that the usual practice

should be followed.” 549 U.S. at 212.

The Court buttressed this holding with a stern

warning: “courts should generally not depart from

…the Federal Rules on the basis of perceived policy

concerns.” Id. PLRA exhaustion was no exception. The

Court recognized “exhaustion was a ‘centerpiece’ of

the PLRA” and “the PLRA dealt extensively with

exhaustion.” Id. at 212, 214. But these realities just

confirmed that absent “departures specified by the

PLRA,” PLRA exhaustion abides “usual procedural

practice.” Id. at 214. The Court emphasized that any

other determination risked judicial rewriting of the

PLRA—or a complete subversion of “the process of

amending the Federal Rules.” Id. at 216–17.

4. Following Jones, the circuits began work

“harmoniz[ing] the PLRA with the … Federal Rules …

as the Supreme Court has instructed.” Rhodes v.

Robinson, 621 F.3d 1002, 1007 (9th Cir. 2010). In

2017, the Ninth Circuit held PLRA exhaustion turns

on “when a plaintiff files the operative complaint, in

accordance with the Federal Rules [i.e., Rule 15].”

Jackson v. Fong, 870 F.3d 928, 935 (9th Cir. 2017).

A supplemental prisoner complaint filed post-release

named new defendants (doctors). See id. at 932–34.

On these facts (which precluded relation back), the

Ninth Circuit held this “operative complaint” was not

subject to PLRA exhaustion. See id. at 931.

In 2019, the Tenth Circuit likewise concluded

Rule 15 governs the effect of amended complaints for

purposes of PLRA exhaustion. See May v. Segovia, 929

F.3d 1223, 1227–29 (10th Cir. 2019). Reciting Jones’s

mandate that “courts should generally not depart

from … the Federal Rules,” the Tenth Circuit

observed that when “the conditions of Rule 15(c) are

met,” amended complaints “relate[] back to the date of

the original.” Id. at 1228–29. As a result, Rule 15(c)

rendered a second amended complaint (SAC) filed by

a prisoner after his release subject to PLRA

exhaustion. See id. The SAC met Rule 15(c), relating

the SAC back to an original complaint filed in jail

when PLRA exhaustion applied. See id. The SAC

“supersede[d] the original complaint’s allegations but

not its timing.” Id. at 1229 (italics in original).

Later in 2019, the Third Circuit agreed with the

Ninth and Tenth Circuits that Rule 15 governs the

effect of amended complaints for purposes of PLRA

exhaustion. See Garrett v. Wexford Health, 938 F.3d

69 (3d Cir. 2019). The Third Circuit saw “nothing” in

PLRA exhaustion—including its boilerplate language

—that would displace Rule 15’s “usual operation.” Id.

at 90. Third Circuit law, in turn, deemed Rule 15 to

have the following usual operation: “a complaint that

relates back can cure an untimely initial complaint.”

T Mobile Ne. LLC v. City of Wilmington, Del., 913 F.3d

311, 328 (3d Cir. 2019). The prisoner in Wexford filed

his original complaint while in jail and without

exhausting available remedies. 938 F.3d at 84. After

his release, the prisoner filed an amended complaint

that met Rule 15’s conditions for relation back. Id. The

Third Circuit concluded the prisoner’s amended

complaint “cure[d] the original filing defect.” Id.

5. The Third Circuit’s decision in Wexford drew

a certiorari petition. See Cert. Pet., Wexford Health v.

Garrett, No. 19-867 (U.S. Jan. 8, 2020). The Wexford

petitioners asserted a circuit split on whether the

PLRA allows an amended complaint to overcome a

failure-to-exhaust defense to a prisoner’s original

complaint. Id. at i, 9. The Wexford petitioners argued

the Third Circuit’s affirmative answer on this point

conflicted with Fifth Circuit (Bargher), Sixth Circuit

(Cox), and Eleventh Circuit (Harris) cases answering

‘no.’ Id. at 10–16. But Harris and Cox preceded this

Court’s seminal decision in Jones, while Bargher did

not involve any amended complaint. See BIO 22–27,

Wexford, No. 19-867 (U.S. Mar. 11, 2020). The Court

denied review. Wexford Health v. Garrett, 140 S. Ct.

1611 (2020). Justice Thomas dissented, finding the

Third Circuit gave Jones’s discussion of boilerplate

“more [credit] than it is worth.” Id. at 1612.

6. Post-Wexford, the Court decided cases that

afforded further insight on PLRA exhaustion and the

Federal Rules. As detailed below, each case bolstered

the uniform, post-Jones view among the circuits that

the Federal Rules governed the effect of amended

complaints for purposes of PLRA exhaustion:

In 2022, the Court decided Ramirez v. Collier,

595 U.S. 411 (2022). Prisoner John Ramirez sought a

religious accommodation related to his forthcoming

execution. See id. at 416. Prison officials argued that

PLRA exhaustion barred Ramirez’s lawsuit. See id. at

421–23. “[Ramirez] filed suit before [Texas] prison

officials ruled on [Ramirez’s] Step 2 grievance”—a

grievance that “prison officials did not decide …until

six days after Ramirez sued.” Id. at 422–23.

The Court found this failure-to-exhaust did not

matter since “Ramirez filed an amended complaint

th[e] same day” that exhaustion finally occurred and

“a second amended complaint after that.” Id. at 423.

The Court found these “subsequent filings” “arguably

cured” the “original [lack-of-exhaustion] defect.” Id.

The Court pointed to a Ninth Circuit decision that

explained PLRA exhaustion abided the “general rule”

that an “amended complaint supercedes the original,

the latter being treated thereafter as non-existent.”

Id. (quoting Rhodes, 621 F.3d at 1005). The Court

noted, however, that it “need not definitively resolve

the issue” since it was not raised below. Id.

In 2023, the Court decided United States ex

rel. Polansky v. Executive Health Resources, Inc., 599

U.S. 419 (2023). Polansky raised the question of what

standard courts should apply in evaluating opposed

government motions to dismiss suits under the False

Claims Act (FCA). Id. at 435. The Court held that the

Federal Rules furnished the proper standard. Id. The

Court’s logic was simple: “[t]he Federal Rules are the

default rules in civil litigation.” Id. at 436. The Court

was not free to “lightly infer” that the FCA displaced

the Federal Rules—especially since “[a]s a practical

matter, the Federal Rules appl[ied] in FCA litigation

… every day.” Id. The Court then had “no reason” to

innovate “an exception for … dismissals.” Id.

In 2025, the Court decided Royal Canin U.S.A.,

Inc. v. Wullschleger, 604 U.S. 22 (2025). At issue was

whether civil plaintiffs may upset removals of their

lawsuits from state court to federal court by filing

amended complaints that eliminate the legal basis for

removal. Id. at 25. The Court determined “usual

procedural principle[s]” allowed exactly this outcome.

Id. at 35. Under these principles, “[t]he plaintiff is the

master of the complaint”: “[i]f a plaintiff amends her

complaint, the new pleading supersedes the old one”

and “[t]he original pleading no longer performs any

function.” Id. Put another way, “[t]he amended

complaint becomes the operative one”—and that fact

may reconfigure litigation as the amended complaint

takes “the place of what has come before.” Id.

7. Five months after Royal Canin, the Court

decided Perttu v. Richards, 605 U.S. 460 (2025). This

case gave the Court a chance to revisit its seminal

analysis of PLRA exhaustion in Jones. A Michigan

prisoner asserted “a right to a jury trial on PLRA

exhaustion when that dispute is intertwined with the

merits of the underlying suit.” Id. at 464. The Court

found “as a matter of statutory interpretation” that

the PLRA maintained this right. Id. at 468.

In this regard, the Court fully reaffirmed Jones.

The Court echoed Jones’s view that the mandatory

phrasing of PLRA exhaustion—“[n]o action shall be

brought”—is “boilerplate.” Id. at 470. The Court next

observed this boilerplate appeared in other defenses

that “routinely [went] to the jury,” like “statutes of

limitations.” Id. Nothing about the words “[n]o action

shall be brought” then controlled “whether judges or

juries should resolve factual disputes related to

exhaustion.” Id. This text instead showed the PLRA

was “silent on the issue”—“strong evidence that the

usual practice should be followed.” Id. So, “[j]ust like

in Jones,” id., the Court found: “PLRA exhaustion is

subject to … ‘the usual practice under the Federal

Rules’” (here, a jury-trial right). Id. at 468.

B. Facts & Procedural Background

1. Jeremy Allen was a prisoner at Minnesota

Correctional Facility—Faribault (“MCF-Faribault”)

in Rice County, MN for over four years, from July 26,

2017 through April 18, 2022. See Pet. 34a. Allen was

released from jail on April 22, 2022. Pet. 35a.

2. During his time in jail, on December 3, 2017,

Allen fell out of his bunk. 2 Allen suffered a serious

injury to his right hand—two fractured metacarpals

(palm bones)—for which Allen sought medical help. 3

Prison officials took Allen to a local hospital where Dr.

Bryan Armitage diagnosed Allen’s injury, applied “a

posterior splint,” and told Allen to return within “two

or three days for further care.” 4 Allen returned two

days later, but pain and swelling prevented

application of a cast or any further treatment. 5 Dr.

Armitage specifically instructed that Allen return in

two weeks (i.e., no later than December 20, 2017) for

treatment and possible surgical intervention. 6

But Allen never received this follow-up care.

Prison officials failed to return Allen to a doctor until

January 23, 2018—five weeks beyond the date that

Dr. Armitage prescribed. 7 Prison officials meanwhile

remained aware of Allen’s ongoing time-sensitive

need for treatment. The Minnesota Department of

Am. Compl. ¶¶5, 12, Allen v. Piepho, No. 21-cv-2689 (D.

Minn. Apr. 30 2022) (ECF 21).

See id. ¶¶12–16.

Id. ¶15.

Id.

Id. ¶16.

Corrections (MNDOC) hired for-profit Centurion to

provide medical treatment to MNDOC prisoners. 8 The

same day that Dr. Armitage treated Allen for the first

time, MNDOC medical provider Cheryl Piepho

advised Centurion of Allen’s “urgent” need for followup care. 9 And after Dr. Armitage directed that Allen

needed to return in two weeks for possible surgery,

Piepho noted Armitage’s prescription as did Charles

Brooks, another MNDOC medical provider. 10

Centurion personnel recognized the failure of

prison officials to afford the follow-up care that Allen

needed. On December 26, 2017, Centurion employee

Rita Iverson allegedly told Piepho in Allen’s case:

“Orth[opedic] consult submitted as Urgent. Changed

to Priority.” 11 Two months later, in February 2018,

Centurion physician assistant Gene Kliber added the

following note: “[Allen] was due … [for a] follow up ….

That [medical] appointment did not happen.” 12 Kliber

further noted that “it was a full month before” Allen

received the necessary follow-up care. 13

When prison officials finally returned Allen to

Dr. Armitage on January 23, 2018, surgery was no

longer an option because of the improper way Allen’s

injury healed in the interim. 14 Dr. Armitage ordered

physical therapy, but the damage was done. 15 Allen

Am. Compl. ¶10, Allen, D. Minn. No. 21-cv-2689 (ECF 21).

Id. ¶¶7, 19.

Id. ¶¶8, 20, 21.

Id. ¶¶11, 22.

Id. ¶¶11, 26.

Id. ¶26.

Id. ¶17.

Id.

suffered intense physical and psychological trauma as

he waited for prison officials to afford the urgent

follow-up care that his broken hand required. 16 In the

months and years to come, Allen suffered more

disabilities and symptoms, including—as confirmed

by MNDOC medical notations—a “loss of function,”

“decreased grip,” and “decreased flexion range.” 17 In

the end, prison officials left Allen with a permanently

disfigured hand, forever compromising Allen’s future

ability to obtain work and earn stable wages. 18

3. On November 10, 2021, while still in prison,

Allen (through counsel) filed a lawsuit in Minnesota

state court over his disfigured hand. 19 Allen asserted

prison officials and staff were deliberately indifferent

to his serious medical needs, violating his Eighth and

Fourteenth Amendment rights (as made actionable by

42 U.S.C. §1983). 20 Allen also pressed a medical

malpractice claim under Minnesota law. 21

Allen sued MNDOC, the head of MNDOC (Paul

Schnell), and the chief medical director of MNDOC

(Dr. James Amsterdam). 22 Allen also sued Centurion

and the Centurion personnel who were involved in his

care, including Kliber and two Centurion doctors

(Edward Shaman and Alyas Masih). 23 Finally, Allen

sued John and Jane Does A–F (Does)—placeholders

Am. Compl. ¶17, Allen, D. Minn. No. 21-cv-2689 (ECF 21).

Id. ¶¶28, 29.

Id. ¶30.

Compl. (attached to Removal Notice), Allen v. Piepho, No.

21-cv-2689 (D. Minn. Dec. 17, 2021) (ECF 1-1).

See id. ¶¶34–39, 46–55.

See id. ¶¶40–45. 56–58.

See id. ¶¶6, 7.

See id. ¶¶8–10; see also Pet. 34a n.1.

for any other prison medical providers liable to Allen

but presently unknown to him. 24 MNDOC used paper

records to document Allen’s care, and these records

bore a number of illegible handwritten signatures,

including those of Piepho and Brooks. Pet. 35a.

4. In December 2021, the Centurion defendants

removed Allen’s lawsuit to federal district court in

Minnesota. 25 Still in prison, Allen agreed to dismisswithout-prejudice the head of MNDOC (Schnell) and

MNDOC’s chief medical director (Amsterdam). Pet.

35a. Allen then subpoenaed MNDOC to identify the

jail personnel whose illegible signatures appeared in

Allen’s MNDOC medical records. Id. On March 31,

2022, MNDOC named Piepho and Brooks. Id.

5. On April 30, 2022—a month after MNDOC’s

disclosure and a week after Allen’s release from jail —

Allen filed an amended complaint with the district

court’s permission. 26 Allen replaced the placeholder

Doe defendants with MNDOC employees Piepho and

Brooks and Centurion employee Iverson. 27 Allen also

restored MNDOC’s head (Schnell) as a defendant. 28

Piepho, Brooks, and Schnell then waived service of the

Amended Complaint on May 2, 2022. 29

6. Between September and October 2022, Allen

agreed to dismiss with prejudice his claims against

Centurion and the individual Centurion personnel

Compl. ¶5, D. Minn. No. 21-cv-2689 (ECF 1-1).

Notice, D. Minn. No. 21-cv-2689 (ECF 1).

Order, D. Minn. No. 21-cv-2689 (ECF 20).

Am. Compl. ¶¶7, 8, 11, D. Minn. No. 21-cv-2689 (ECF 21).

Id. ¶9.

MTD Mem., D. Minn. No. 21-cv-2689 (ECF 30).

named as defendants in his amended complaint (i.e.,

Dr. Shaman, Dr. Alyas, Kliber, and Iverson). 30

7. On June 30, 2022, the MNDOC defendants

moved to dismiss Allen’s amended complaint. 31 The

MNDOC defendants presented several grounds for

dismissal, one of which was a statute-of-limitations

defense. Allen’s medical malpractice claims under

Minnesota law fell under a 4-year limitations period,

unlike the longer 6-year limitations period governing

Allen’s federal constitutional claims. See Minn. Stat.

§541.076(b) (“An action by a patient … alleging

malpractice … must be commenced within four years

….”); see also United States v. Bailey, 700 F.3d 1149,

1153 (8th Cir. 2012) (“[L]imitations on claims under

42 U.S.C. §1983 … is six years in Minnesota.”).

The MNDOC defendants argued that the 4-year

limitations period barred Allen’s medical malpractice

claims against Piepho and Brooks. 32 Finding these

malpractice claims accrued no later than January 23,

2018 (when doctors found no cure was possible), the

MNDOC defendants argued Allen “did not commence

a lawsuit against Piepho and Brooks until more than

four years later, on May 2, 2022.” 33 So on the pivotal

See Order on Stip., D. Minn. No. 21-cv-2689 (ECF 49)

(dismissing Centurion personnel); Order on Stip. D. Minn. No.

21-cv-2689 (ECF 54) (dismissing Centurion).

Waiver of Service, D. Minn. No. 21-cv-2689 (ECF 24).

MTD Mem. 13–14, D. Minn. No. 21-cv-2689 (ECF 30).

Id. at 13. The MNDOC defendants cited the May 2, 2022

waiver-of-service date—rather than the amended complaint’s

April 30, 2022 filing date—because suit commencement under

Minnesota rules turns on waiver rather than filing. See Defs. SJ

Mem. 9 n.4, D. Minn. No. 21-cv-2689 (ECF 81). The MNDOC

question of when Allen brought suit against Piepho

and Brooks, the MNDOC defendants made clear their

position that the operative complaint was the

amended complaint—not the original complaint. And

the MNDOC defendants cemented this position by

stressing that: “[Allen’s] original [c]omplaint asserted

no [legal] claims against Piepho and Brooks.” 34

The MNDOC defendants also took the position

that Piepho and Brooks were entitled to the benefit of

the Federal Rules in terms of amended complaints

and relation-back doctrine. The MNDOC defendants

observed that under Rule 15—as explained by the

Eighth Circuit in Heglund v. Aitkin County, 871 F.3d

572 (8th Cir. 2017)—“when an amended complaint

replaces a Doe defendant with the name of an actual

defendant, it does not relate back to the original

complaint for statute of limitations purposes.” 35 The

MNDOC defendants urged the district court to hold:

“[a]ny … assert[ion] that the [a]mended [c]omplaint

[here] relates back to the initial [c]omplaint with

respect to Piepho and Brooks … [is] futile.” 36

Confronted with these arguments, Allen agreed

to dismiss his medical malpractice claims against

Piepho and Brooks. 37 Allen also agreed to dismiss all

remaining claims against MNDOC and the head of

defendants insisted Minnesota rules “should apply” since “this

action was initiated in state court before removal.” Id.

MTD Mem. 13, D. Minn. No. 21-cv-2689 (ECF 30).

MTD Mem. 13–14, D. Minn. No. 21-cv-2689 (ECF 30).

Id.

MTD Opp. Mem. 1, D. Minn. No. 21-cv-2689 (ECF 38)

(“[Allen] will voluntarily dismiss Count II (medical malpractice)

against Defendants Piepho and Brooks.”).

MNDOC (Schnell). 38 The district court accepted both

dismissals and entered them with prejudice. 39

At the same time, the district court allowed

Allen’s §1983 claims to proceed against Piepho and

Brooks, rejecting a qualified immunity defense. 40 The

MNDOC defendants based this defense in significant

part on Piepho’s and Brooks’s “job functions.” 41 But

these “facts” were “not part of the pleadings.” 42 Given

this reality, the district court “decline[d] to dismiss” at

this time “in the absence of a full record.” 43

8. On May 11, 2023, Piepho and Brooks—now

the only remaining defendants—moved for summary

judgment on the sole ground of PLRA exhaustion. 44

Piepho and Brooks noted PLRA exhaustion “[does] not

[apply to] those who bring federal claims after being

released.” 45 Piepho and Brooks then forgot their own

successful motion-to-dismiss position that Allen “did

not commence a lawsuit against Piepho and Brooks

until … May 2, 2022” 46—i.e., after Allen’s release from

jail on April 22, 2022. Pet. 35a.

Piepho and Brooks now took the opposite view,

classifying Allen’s original complaint as the operative

one: “Allen commenced this lawsuit on December 13,

MTD Opp. Mem. 1, D. Minn. No. 21-cv-2689 (ECF 38)

(“Plaintiff will voluntarily dismiss … Schnell and … DOC.”).

MTD Order at 19, D. Minn. No. 21-cv-2689 (ECF 61).

See id.

Id. at 15.

Id.

Defs. First SJ Mot., D. Minn. No. 21-cv-2689 (ECF 81).

Id. at 6.

MTD Mem. 13, D. Minn. No. 21-cv-2689 (ECF 30).

2021, when two [MN]DOC defendants waived service

of a summons on [Allen’s] state court complaint.” 47

PLRA exhaustion then barred this filed-in-jail, nonexhausted complaint. 48 Piepho and Brooks separately

insisted that Allen’s amended complaint related back

to any exhaustion defect in his original one—another

view contradicting their motion-to-dismiss. 49

The district court rejected Piepho and Brooks’s

PLRA exhaustion argument. Pet. 36a–40a. Rule 15

remained effective under the PLRA, and no relation

back occurred through Allen’s replacement of the Doe

placeholders with Piepho and Brooks. Id.

9. On interlocutory review under 28 U.S.C.

§1292(b), the Eighth Circuit affirmed. Pet. 2a–9a. The

PLRA did not depart from Rule 15—and under Rule

15, the conditions of relation back were not met. Id.

Judge Loken dissented. Pet. 10a–20a. The Eighth

Circuit denied rehearing, with four judges stating

they would have granted rehearing. Pet. 42a.

10. On September 19, 2025, Piepho and Brooks

petitioned for Supreme Court review. Meanwhile, the

parties remain in active litigation (i.e., no appellate

stay has been entered). Discovery is ongoing and the

state has expressed its intention to file a dispositive

motion in the near future. Finally, the district court

has scheduled this case for trial next year.

11. This brief-in-opposition follows.

Defs. First SJ Mot. 9, D. Minn. No. 21-cv-2689 (ECF 81).

See id. at 6–14.

Defs. SJ Reply 12–16, D. Minn. No. 21-cv-2689 (ECF 85).

REASONS TO DENY THE PETITION

The Eighth Circuit properly interpreted

the PLRA’s text as dictated by this Court’s

decisions in Jones and now Perttu.

In this case, the Eighth Circuit determined that:

“the PLRA is silent—both explicitly and implicitly—

on amendments to complaints and the application of

the relation back doctrine. We must then apply the

typical rules governing amendments and relation

back in civil actions.” Pet. 6a. The typical rules in

question established: (1) Allen’s amended complaint

was the operative complaint; and (2) Allen’s amended

complaint did not relate back to the date of Allen’s

original complaint because the amended complaint

did not satisfy Federal Rule of Civil Procedure 15’s

mandates for relation-back. Pet. 6a–8a. The Eighth

Circuit thus concluded PLRA exhaustion “did not”

apply here because “[when] Allen filed his amended

complaint, he was no longer an inmate.” Id.

Petitioners argue the Eighth Circuit is wrong:

“the text of the PLRA makes plaintiff’s confinement

status at the beginning of the lawsuit dispositive of

the exhaustion issue.” Pet.14. In other words, PLRA

exhaustion looks only and forever at a prisoner’s

original complaint. But Petitioners’ support for this

notion consists entirely of outdated or out-of-context

citations and circular logic. By contrast, the Eighth

Circuit’s recognition that PLRA exhaustion is silent

on amendment and relation-back—requiring typical

rules to be applied—tracks this Court’s view of PLRA

exhaustion in Jones v. Bock, 549 U.S. 199 (2007) and

now Perttu v. Richards, 605 U.S. 460 (2025).

Start with Jones. Looking at the statutory text of

PLRA exhaustion—“no action shall be brought” the

Sixth Circuit saw a “‘total exhaustion’ rule.” 549 U.S.

at 205–06. This Court reversed. Id. at 219–24. The

Court explained “no action shall be brought” is

“boilerplate language” that exists in “many” federal

laws, particularly “statutes of limitations.” Id. at 220

(“Statutes of limitations … are often introduced by a

variant of the phrase ‘no action shall be brought’ ….”).

So the Court reviewed statutes of limitations to see

whether “total exhaustion” was the rule. Id. After

all, “boilerplate is boilerplate for a reason—

because it offers tried-and-true language to ensure a

precise and predictable result.” Seila Law LLC v.

CFPB, 591 U.S. 197, 235 (2020) (bold added).

The Court’s examination in Jones of statutes of

limitations yielded no evidence of a total-exhaustion

rule. 549 U.S. at 220. The Court explained: “we have

never heard of an entire complaint being thrown out

simply because one of several discrete claims was

barred by the statute of limitations.” Id. The words “no

action shall be brought” in the PLRA then stood

“silent on the issue”—“strong evidence that the usual

practice should be followed.” Id. at 212. “As a general

matter, if a complaint contains both good and bad

claims, the court proceeds with the good and leaves

the bad.” Id. at 221. The Court ruled that PLRA

exhaustion abided this practice: “[i]f Congress meant

to depart from this [general] norm, we would expect

some indication of that, and we find none.” Id.

Now consider Perttu. At issue was whether “a

right to a jury trial on PLRA exhaustion [existed]

when that issue is intertwined with the merits of a

claim that falls under the Seventh Amendment.” 605

U.S. at 468. The Court applied the same methodology

it used in Jones, while quoting and citing Jones every

step of the way. Id. at 469–70. The Court declared:

“[a]s we noted in Jones, the phrase ‘[n]o action shall

be brought’ is ‘boilerplate language’ often used for …

statutes of limitations ….” Id. The Court’s review

of statutes of limitations revealed these “affirmative

defenses … routinely go to the jury.” Id. “Just like in

Jones, then,” the Court found “statutory silence”—

“strong evidence that the usual practice should be

followed.” Id. And the usual practice “in cases of

intertwinement,” was an “order[ing] of operations” to

“preserve the jury trial right.” Id. at 471.

In this case, the Eighth Circuit had to decide

whether PLRA exhaustion respects or displaces the

usual practices governing amended complaints and

the relation-back doctrine. Pet. 2a–3a; 5a–8a. Under

the Jones/Perttu methodology, the wording of PLRA

exhaustion (“no action shall be brought”) carries the

same effect as statutes of limitations. The “general

rule … in applying [a] statute of limitations” is that

“reference must be had to the time [an] amended

complaint is filed” when certain conditions exist (e.g.,

an amendment brings in “a new and independent

right of action”). Oolitic Stone Co. v. Ridge, 91 N.E.

944, 949 (Ind. 1910). Indeed, relation-back would not

exist but for statutes of limitations abiding the tenet

that an amended pleading “‘supersedes’ the old one.”

Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22

(2025). The purpose of relation-back is to address the

timeliness of amended complaints. See FRCP 15(c)

1966 Adv. Cmte. Note (“relation back is intimately

connected with … statute[s] of limitations”).

The Eighth Circuit thus correctly recognized that

“the PLRA is silent” about amended complaints and

relation back, just as the PLRA is silent about total

exhaustion and jury trials. And Petitioners do not

dispute that: (1) when the PLRA is silent, usual

practices apply; and (2) presuming the PLRA is silent

here, the Eighth Circuit correctly applied the usual

practice on amendments and relation back (Federal

Rule 15). Petitioners argue only that the PLRA “is not

truly silent” here because the PLRA’s use of the word

“brought”—in the phrase “no action shall be

brought”—“unambiguously refers to the beginning of

a case” (i.e., the original complaint). Pet.13.

Petitioners cite Harris v. Garner, 216 F.3d 970,

974, 981 (11th Cir. 2000) (en banc), which echoes

Petitioners’ thinking that “[i]t is confinement status

at the time the [prisoner’s] lawsuit is ‘brought,’ i.e.,

filed, that matters.” Id. at 975. But Harris precedes

this Court’s definitive holding in Jones and again in

Perttu that the phrase “no action shall be brought”

must be read as a whole—not by reading each word

(like “brought” or “action”) in isolation. Perttu, 605

U.S. at 468–70; Jones, 549 U.S. at 219–24. And when

read as a whole, this “boilerplate language” requires a

review of statutes of limitations (and other laws

featuring the same boilerplate) to gauge meaning.

Petitioners meanwhile do not mention “boilerplate”

even once in their analysis, much less maintain that

statutes of limitations accord with Petitioners’ view of

“brought.” Pet. 13–14. Petitioners’ citation of Stites v.

Mahoney, 594 F. App’x 303, 304–05 (7th Cir. 2015)

shares this problem, leaving aside the fact that Stites

(a pro se appeal) entails a ‘drive by’ reading of PLRA

exhaustion that never once considers Jones.

Petitioners cite May v. Segovia, 929 F.3d 1223,

(10th Cir. 2019)—a PLRA exhaustion case in which

the Tenth Circuit notes “[t]he amended complaint,

as the operative complaint, supersedes the original

complaint’s allegations but not its timing.” See id. at

1229 (italics in original). Petitioners omit the context

surrounding this observation: a discussion of what

happens “when a complaint is properly amended and

the [relation-back] conditions of Rule 15(c) are met.”

Id. May cuts against Petitioners, showing that PLRA

exhaustion looks at original complaints only to the

extent Rule 15 says so; the PLRA’s use of the word

“brought” does not by itself elicit this result.

So Petitioners pivot to extolling why exhaustion

“makes sense.” Pet.14. Petitioners whistle past the

senseless consequences of their PLRA interpretation.

For example, under Petitioners’ view, if an action is

“brought” (i.e., begun) without exhaustion, the PLRA

mandates dismissal even if exhaustion later occurs.

See Ramirez v. Collier, 595 U.S. 411, 422–23 (2022)

(“[P]rison officials did not decide th[e] grievance until

six days after Ramirez sued.”). Petitioners’ totaldismissal argument denies any possibility that “[an]

original [exhaustion] defect” may be “cured” by later

filings, id., because exhaustion hinges on the word

“brought,” making “[the complaint] at the beginning

of the lawsuit dispositive of the exhaustion issue.”

Pet.14. So if a prisoner files suit and later exhausts,

Petitioners’ total-dismissal argument mandates that

the prisoner’s original action must be dismissed and

the prisoner must file a new, post-exhaustion suit—a

multiplication of paperwork that “[does] not comport”

with any notion of trying to “reduce the quantity of

inmate [litigation].” Jones, 549 U.S. at 223.

Petitioner stresses the word “brought,” implying

the word itself settles that an action is “brought”

when—and only when—a plaintiff files his original

complaint. Pet. 13–14. This circular logic collapses

upon proper consideration of the history of pleading.

This history teaches that for affirmative defenses like

exhaustion and statutes of limitations, “the word

‘commenced’ is sometimes used, and at other times the

word ‘brought’” and “the two words … mean the same

thing.” Goldenberg v. Murphy, 108 U.S. 162, 163,

(1883). This history also teaches that “[u]ntil [given]

defendants [are] made parties to the bill, the suit

cannot be considered as having been commenced

against them.” Miller's Heirs v. M'Intyre, 31 U.S. 61,

64 (1832). The decision below then stands in perfect

harmony with the word “brought”: an action was not

“brought” against Petitioners until Allen’s amended

complaint, which coming after Allen’s release made

PLRA exhaustion inapplicable. Pet.6a–8a.

Petitioners’ own advocacy confirms this point.

Besides his §1983 claims, Allen sued Petitioners for

medical malpractice. By statute, such claims “must be

commenced within four years” of accrual. Minn. Stat.

§541.076(b). Petitioners did not read the word

“commenced” (equal to “brought”) to make Allen’s

original complaint dispositive of the statute’s rule.

Petitioners instead maintained that Allen’s amended

complaint was dispositive because Allen “did not

commence a lawsuit” against Petitioners until the

amended complaint. 50 No reason then exists to grant

review of an argument over the word “brought” that

Petitioners themselves do not fully believe.

MTD Mem. 13–14, D. Minn. No. 21-cv-2689 (ECF 30).

II.

There is no circuit split—only a strawman

contrived by ignoring Jones and Perttu.

Petitioners maintain that the circuits “are split”

on PLRA exhaustion “with respect to inmates who

begin their lawsuits while incarcerated but amend

their complaints to add unexhausted claims after they

are released.” Pet.9. In 2020, the Court heard the

same claim in Wexford Health v. Garrett, No. 19-867

(U.S. Jan. 8, 2020) (cert. pet.). The Court denied

review following effective brief-in-opposition analysis

showing no circuit split exists. BIO 22–27, Wexford,

No. 19-867 (U.S. Mar. 11, 2020); see also Wexford

Health v. Garrett, 140 S. Ct. 1611 (2020).

It is now five years later. One might expect that

anyone seeking review of the same issue urged by the

Wexford petitioners would come to the Court with

fresh intervening citations showing the circuits are

indeed split on this issue. Petitioners do the opposite:

they rehash the exact same circuit decisions that the

Wexford BIO successfully tackled and call it a day.

Compare Pet.8–11 with Wexford BIO 22–27. Worse

still, Petitioners ignore this Court’s pivotal decisions

in Jones and now Perttu, which dispose of any effort to

prove a circuit split through cases predating these

binding precedents on PLRA exhaustion.

Petitioners contend “[a] majority of the circuits”

agree that PLRA exhaustion turns on a prisoner’s

original complaint, displacing usual practices under

Federal Rule 15 governing amendment and relationback. See Pet.9. Petitioners cite Fifth, Sixth, Seventh,

Tenth, and Eleventh Circuit decisions that fall into

the following three categories. See Pet. 8–10.

The first category is circuit cases that predate

Jones. The Eleventh Circuit falls into this category

with Harris v. Garner, 216 F.3d 970, 974, 981 (11th

Cir. 2000) (en banc). So does the Sixth Circuit with

Cox v. Mayer, 332 F.3d 422 (6th Cir. 2003). Viewing

these cases as evidence of a circuit split is a problem

because these “circuits might well decide these cases

differently today.” Jackson v. Fong, 870 F.3d 928, 935

n.3 (9th Cir. 2017). Harris and Cox deem PLRA

exhaustion to displace usual practices (like Rule 15)

without the benefit of Jones’s later decisive command

—now reinforced by Perttu—that “PLRA exhaustion

is … subject to the usual practice under the Federal

Rules.” Perttu, 605 U.S. at 469 (cleaned up).

Harris and Cox suffer other defects that belie

their capacity to generate a circuit split. Harris did

not involve an amended complaint: “[n]o motion to

amend the complaint was filed ….” 261 F.3d at 981

n.10. The Harris majority opinion saw fit to “assume”

an amendment “for purposes of discussion.” Id. But as

the Eleventh Circuit has later said (in a decision by

author of the Harris opinion, no less): “regardless of

what a court says in its opinion, the decision can hold

nothing beyond the facts of that case.” Edwards v.

Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010). Cox

presents the same defect: “[the] plaintiff made no …

motion” to file an amended complaint. 332 F.3d at 428.

Later Sixth Circuit panels have thus declared that

“[t]he Cox panel’s dicta do not bind us.” Mattox v.

Edelman, 851 F.3d 583, 593 (6th Cir. 2017).

The second category is circuit cases decided

after Jones that set no precedent and ignore Jones.

The Seventh Circuit falls into this category with Stites

v. Mahoney, 594 F. App’x 303 (7th Cir. 2015)—a nonprecedential order enforcing PLRA exhaustion

without consideration of Jones. See id. at 303–04.

Stites has “no legal status outside the parties or the

case in which it was decided.” United States v. Harris,

124 F.4th 1088, 1092 (7th Cir. 2025) (“Just because a

decision can be found on Westlaw does not mean it has

precedential effect in our circuit.”).

The second category also covers Smith v. Terry,

491 F. App’x 81 (11th Cir. 2012). A non-precedential

Eleventh Circuit decision, Smith invokes the circuit’s

pre-Jones view of PLRA exhaustion (Harris) without

mentioning Jones. See Smith, 49 F. App’x at 82–84.

Smith also does this hypothetically. Id. Because the

record “fail[ed] to establish whether the district court

ever permitted … amend[ment],” Smith “assume[s]—

without deciding—that [the plaintiff] was permitted

to amend.” Id. at 83. The result is more Harris and

Cox-style dicta. See Edwards, 602 F.3d at 1298.

The third category is post-Jones circuit cases

that Petitioners misread as supportive of their view,

when the opposite is true or the case is inapposite. The

Tenth Circuit fits this bill with May v. Segovia, 929

F.3d 1223 (10th Cir. 2019). Far from embracing

Petitioners’ view that PLRA exhaustion displaces the

usual practice under Federal Rule 15 on amendment

and relation-back, May goes into great detail on how

PLRA exhaustion works within (not outside) Rule 15.

See id. at 1228–31. May also cabins its force through

its identification of briefing failures and alternative

grounds to affirm. Id. at 1231–34. May does not then

prove a circuit split now any more than it did five

years ago in Wexford. See Wexford BIO 26–27.

The same goes for the Fifth Circuit and Bargher

v. White, 928 F.3d 439 (5th Cir. 2019). This decision

fails to prove any circuit split for the simple reason

that the Bargher plaintiff “never filed a post-release

amended or supplemental complaint.” Wexford BIO

25. Hence, Bargher lacks any discussion of Federal

Rule 15 or usual practices related to amendment and

relation-back. 28 F.3d at 446–48. While the Bargher

plaintiff continued to litigate his filed-in-jail lawsuit

after his release, the sole complaint on file did not

reflect or incorporate plaintiff’s release. 928 F.3d at

447. All Bargher then does is apply PLRA exhaustion

in line with a case’s operative complaint. Id.

With the preceding three categories in mind,

Petitioners fail to identify any precedential circuit

decision that applies Jones/Perttu and concludes—

opposite to the Eighth Circuit below—that the PLRA

displaces usual practices related to amendments and

relation-back. Just the opposite: Petitioners concede

that the Third Circuit and Ninth Circuit agree with

the Eighth Circuit. Pet.10–11. The Tenth Circuit’s

decision in May also agrees with the Eighth Circuit,

with both circuits aligning their application of PLRA

exhaustion with Federal Rule 15(c). May observes

that when “the conditions of Rule 15(c) are met,” an

amended complaint will “relate back” to the “timing”

of an original complaint and, by extension, any lack of

PLRA exhaustion. 929 F.3d at 1229. The Eighth

Circuit’s decision here builds on this analysis, noting

the flip side: when Rule 15(c) is not met, an amended

complaint “does not relate back,” which may then

make PLRA exhaustion inapplicable. Pet.8a.

No circuit split thus exists in this case.

III. This case is an even poorer vehicle for the

question presented than the 2020 Wexford

petition (which the Court denied).

Petitioners argue this case is an “ideal vehicle” to

decide the question presented since a decision for

Petitioners would end the litigation and because “no

factual disputes” exist that would cloud the question.

Pet.15, In reality, two major vehicle problems make

this case an even worse candidate for review than the

Wexford petition that the Court denied five years ago.

These vehicle problems are as follows:

1. Judicial estoppel. Petitioners obtained a

vital advantage in the district court by arguing the

exact opposite of the position they now advance here.

Minnesota law dictates that “[a]n action … alleging

[medical] malpractice … must be commenced” within

a 4-year period. Minn. Stat. §541.076. Invoking this

rule, Petitioners had to answer the general question

of when they believed Allen “commenced” (brought)

his “action.” Petitioners elected to answer that Allen

“did not commence a lawsuit against [them]” until the

amended complaint (which Allen filed after his release

from jail). 51 Petitioners stressed that Allen’s “original

complaint asserted no claims” against them and that

it was “futile” to assert that “the amended complaint

relate[d] back.” 52 Allen thereafter agreed to dismiss

his medical malpractice claims against Petitioners 53—

a dismissal that the district court both accepted and

then entered with prejudice. 54

MTD Mem. 13, D. Minn. No. 21-cv-2689 (ECF 30).

Id. at 13–14 (cleaned up).

MTD Opp. Mem. 1, D. Minn. No. 21-cv-2689 (ECF 38).

MTD Order at 19, D. Minn. No. 21-cv-2689 (ECF 61).

Now, to obtain the benefit of PLRA exhaustion

from this Court, Petitioners take the opposite view:

Allen “brought” (commenced) his “action” as of his

original complaint. Pet. 10 (“timing … determined by

… the original complaint”). But if that is true, Allen’s

medical malpractice claims are timely and merit

revival. The doctrine of judicial estoppel then permits

Allen to seek this outcome—or to argue Petitioners

cannot prevail on their PLRA exhaustion argument

(no matter the argument’s merits) given Petitioners’

previous advocacy that Allen’s amended, post-release

complaint establishes when Allen’s action began. The

doctrine “prevents a party from prevailing in one

phase of a case on an argument and then relying on a

contradictory argument to prevail in another phase.”

New Hampshire v. Maine, 532 U.S. 742, 749 (2001).

The doctrine’ manifest applicability here then poses a

problem many times greater than the judicial waiver

problem that pervaded Wexford. See Wexford BIO 28

(detailing history of waived arguments).

2. Interlocutory review. This case comes to the

Court not on a case-ending final judgment, but as the

result of interlocutory review under 28 U.S.C.

§1292(b). Pet. 23a–32a. Litigation is ongoing, and

Petitioners have raised other significant arguments

on which Petitioners might succeed (e.g., qualified

immunity) and thereby moot any further need on their

part for judicial review of PLRA exhaustion. The

Court has previously recognized that a lack of finality

in proceedings is a “fact” that “itself alone furnish[es]

sufficient ground” for a denial of review. HamiltonBrown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258

(1916). This case falls well within that principle and

merits robust application of it.

IV. Petitioners’ sky-is-falling policy arguments

lack merit while eliding Petitioners’ effort

to upset stable, even-handed rules.

Petitioners insist that the decision below allows

“an ‘end-run’ around PLRA exhaustion” that “risk[s]

… ‘opening the floodgates.’” See Pet.11. If that were

true, such a flood (i.e., hundreds or dozens of cases)

should have occurred by now. Application of PLRA

exhaustion consistent with Federal Rule 15 has been

the law for nearly a decade in the Ninth Circuit and

half-a-decade in the Third Circuit. Petitioners fail to

identify any flood of prisoner cases turning on Rule 15

in these circuits—only a few cases that Petitioners

deem objectionable. See Pet.11–12. Petitioners’ sky-isfalling argument then reduces to a bare preference

against “encourag[ing] prisoners to file unexhausted

claims as their release date approaches.” Id.

To avoid this problem, Petitioners insist upon a

reading of PLRA exhaustion that requires dismissal of

prisoner actions lacking exhaustion at the time of the

original complaint even if: (1) exhaustion later occurs;

or (2) the prisoner may “immediately refile” and, due

to release, PLRA exhaustion will not apply to the new

action. Bargher, 928 F.3d at 447–48. All this policy

does is generate bureaucracy. Instead of being able to

rely on the usual, efficient practice of amended

complaints and relation-back, Petitioners’ totaldismissal rule compels refiling an entire suit. Worse

still, Petitioners’ advocacy returns the PLRA to a

byzantine relationship with the Federal Rules,

making it harder for everyone to know just when the

Rules apply. Nothing in the PLRA requires that

result—or warrants review to produce it.

CONCLUSION

The Court should deny review of this case.

Respectfully submitted,

MAHESHA P. SUBBARAMAN

Counsel of Record

SUBBARAMAN PLLC

80 S. 8th St., Ste. 900

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

VINCENT J. MOCCIO

BENNEROTTE & ASSOCIATES LLP

3085 Justice Way, Ste. 200

Eagan, MN 55121

PHILLIP F. FISHMAN

PHILLIP FISHMAN LAW OFFICE

825 Nicollet Mall, Ste. 1600

Minneapolis, MN 55402

VINCENT W. MOCCIO

115 Valleyview Place

Minneapolis, MN 55419

Dated: November 3, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.