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

No. 25-350

In the

Supreme Court of the United States

CHARLES BROOKS, et al.,

Petitioners,

v.

JEREMY JAMES ALLEN,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Eighth Circuit

REPLY BRIEF FOR PETITIONERS

Keith Ellison

Attorney General

State of Minnesota

Liz Kramer

Solicitor General

Counsel of Record

Michael Goodwin

Assistant Attorney General

Benjamin Harringa

Assistant Attorney General

445 Minnesota Street, Suite 600

St. Paul, MN 55101

(651) 757-1010

liz.kramer@ag.state.mn.us

Counsel for Petitioners

387382

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I.

The Eighth Circuit Deepened A Circuit

Split That This Court Should Resolve . . . . . . . . . 1

II. The Decision Below Is Wrong . . . . . . . . . . . . . . . . 4

III. This Case Is An Ideal Vehicle To Resolve

The Split On An Important Issue . . . . . . . . . . . . 7

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Bargher v. White,

928 F.3d 439 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Cox v. Mayer,

332 F.3d 422 (6th Cir. 2003) . . . . . . . . . . . . . . . . . 2, 3, 9

Delk v. Hardeman Cnty. Corr. Facility,

No. 1:16-CV-01275, 2022 WL 891229

(W.D. Tenn. Mar. 25, 2022) . . . . . . . . . . . . . . . . . . . . . 4

Garrett v. Wexford Health,

938 F.3d 69 (3d Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . . 2

Gundy v. United States,

588 U.S. 128 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Harris v. Garner,

216 F.3d 970 (11th Cir.2000) . . . . . . . . . . . . . . . 2, 3, 5, 9

Jackson v. Fong,

870 F.3d 928 (9th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . 2

Jones v. Bock,

549 U.S. 199 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Landry v. Dep’t of Child & Fam. Servs.,

No. CV 21-794, 2021 WL 2374798

(E.D. La. June 10, 2021) . . . . . . . . . . . . . . . . . . . . . . . . 8

iii

Cited Authorities

Page

Kingdomware Technologies, Inc. v. United States,

579 U.S. 162 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Makell v. Cnty. of Nassau,

599 F. Supp. 3d 101 (E.D.N.Y. 2022) . . . . . . . . . . . . . . 4

Mattox v. Edelman,

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

McDowell v. Bowman,

No. 21-10840, 2022 WL 4140331

(11th Cir. Sept. 13, 2022) . . . . . . . . . . . . . . . . . . . . . . . .3

New Hampshire v. Maine,

532 U.S. 742 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Perttu v. Richards,

605 U.S. 460 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Porter v. Nussle,

534 U.S. 516 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Raja v. Kim,

No. 1:19-CV-00817-HBK, 2021 WL 3032813

(E.D. Cal. July 19, 2021) . . . . . . . . . . . . . . . . . . . . . . . . 3

Ramirez v. Collier,

595 U.S. 411 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Reed Elsevier, Inc. v. Muchnick,

559 U.S. 154 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iv

Cited Authorities

Page

Ricker v. Salas,

No. 19-CV-807 TWR (LL), 2020 WL 6484639

(S.D. Cal. Nov. 3, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . 3

Sanchez v. Nassau Cnty.,

662 F. Supp. 3d 369 (E.D.N.Y. 2023) . . . . . . . . . . . . . . 4

Scott v. Hearne,

No. CV 19-0911, 2023 WL 3138000

(W.D. La. Apr. 27, 2023) . . . . . . . . . . . . . . . . . . . . . . . . 4

Seila L. LLC v. Consumer Fin. Prot. Bureau,

591 U.S. 197 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Stites v. Mahoney,

594 F. App’x 303 (7th Cir. 2015) . . . . . . . . . . . . . . . . . . 2

Wexford Health v. Garrett,

140 S. Ct. 1611 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Witzke v. Femal,

376 F.3d 744 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . 9

Statutes

28 U.S.C. § 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

42 U.S.C. § 1997e(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

Steven Shapiro, et al., Supreme Court Practice,

4-57 (11th Ed. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1

INTRODUCTION

This case presents the Court with a clean vehicle to

resolve a clear and deepening split about whether a postrelease amended complaint on can override a prisoner’s

failure to have exhausted remedies when he “brought” his

action, as required by the Prison Litigation Reform Act

(PLRA). 42 U.S.C. § 1997e(a). Respondent ignores lower

courts’ own recognition of the circuit split and misreads

this Court’s case law. He also manufactures vehicle

problems that do not exist. And he (tellingly) devotes

much of his Brief in Opposition to the merits, arguing

that the Eighth Circuit was right. Even if that matters at

this stage, this argument fails because the Eighth Circuit

made the same analytical mistakes as the Ninth and

Third Circuits in excusing Respondent’s admitted failure

to exhaust. The Court should grant certiorari to resolve

an important question that has divided the lower courts.

ARGUMENT

I.

The Eighth Circuit Deepened A Circuit Split That

This Court Should Resolve.

Respondent’s suggestion that the lower courts are

not actually divided is impossible to square with the

decisions of those courts, which have themselves identified

the circuit split highlighted in the Petition. Indeed, when

different circuits look at the same statutory text, disagree

with each other about what it means, and acknowledge

that the circuits are divided, there is a split in authority

by any definition. Before the Eighth Circuit decision here,

the Third and Ninth Circuits broke with the Sixth, Tenth,

Eleventh Circuits, and recognized the divergence. See

2

Garrett v. Wexford Health, 938 F.3d 69, 84, n. 21; 90-91

(3d Cir. 2019) (describing different approaches within

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

2017) (disagreeing with Sixth Circuit’s decision in Cox v.

Mayer and Eleventh Circuit’s en banc decision in Harris

v. Garner, 216 F.3d 970 (11th Cir.2000)). And though

Stites v. Mahoney, is not precedential within the Seventh

Circuit, it nonetheless reflects a different outcome than

would be reached under Third, Ninth, and now Eighth

Circuit precedent. 594 F. App’x 303, 304 (7th Cir. 2015).1

The circuits see themselves diverging in their approaches

to the question presented here.

Take Garrett, the Third Circuit case that this Court

declined to hear in 2020, over the dissent of Justice

Thomas. Wexford Health v. Garrett, 140 S. Ct. 1611,

1612 (2020) (Thomas, J., dissenting from the denial of

certiorari). The Third Circuit “decline[d] to adopt the

Eleventh Circuit’s analysis” in Harris, noting that the

panel “[did] not share the Eleventh Circuit’s view [ . . . ]

that the PLRA expressly overrides Rule 15 with regard

to the administrative exhaustion requirement.” Garrett,

938 F.3d at 91 n. 25. The Ninth Circuit, for its part, found

Harris “unpersuasive” and speculated that the Sixth and

Eleventh Circuits might revisit their holdings in light of

this Court’s decision in Jones v. Bock, 549 U.S. 199 (2007).

Jackson, 870 F.3d at 935 (noting that Harris predated

Jones).

1. As Justice Thomas has noted, the Fifth Circuit decision in

Bargher v. White, 928 F.3d 439, 447–448 (2019), also conflicts with

the Third Circuit’s reasoning in Garrett, although Bargher does

not involve an amended complaint. Wexford Health v. Garrett, 140

S. Ct. 1611, 1611-1612 (2020) (Thomas, J., dissenting from denial

of certiorari.

3

Both Harris and Cox remain good law in their

respective circuits post-Jones, with those circuits having

specifically rejected arguments to the contrary. See, e.g.,

McDowell v. Bowman, No. 21-10840, 2022 WL 4140331,

at *2 (11th Cir. Sept. 13, 2022) (affirming dismissal for

failure to exhaust and rejecting argument that Harris

was no longer good law). Similarly, the Sixth Circuit has

also declined to revisit Cox. Mattox v. Edelman, 851 F.3d

583, 593 (6th Cir. 2017) (noting that the PLRA exhaustion

analysis of Cox was “likely correct” but distinguishing it).

Suffice to say, the circuits do not share Respondent’s view

that there is no split in authority. Nor does the Eighth

Circuit, which split 7-4 in denying rehearing en banc.

Appx. 42a.

As further proof of the split, lower courts in circuits

on both sides of the split continue apply the law in their

respective circuits to reach different results. For example,

a federal district court in California held that a former

prisoner was not subject to PLRA exhaustion, even though

the post-release amended complaint was basically the

same as the unexhausted one he filed while incarcerated.

Ricker v. Salas, No. 19-CV-807 TWR (LL), 2020 WL

6484639, at *2 (S.D. Cal. Nov. 3, 2020). Noting that the

Tenth and Eleventh Circuits took different approaches

to post-release amended complaints, the court applied

Ninth Circuit law because that circuit had “clearly spoken

to the contrary.” Id. at *7, n.3; see also Raja v. Kim, No.

1:19-CV-00817-HBK, 2021 WL 3032813, at *2 (E.D. Cal.

July 19, 2021) (identifying split in authority).

By contrast, a federal district court in Tennessee

(Sixth Circuit) applied Cox in rejecting a former prisoner’s

argument the exhaustion no longer applied to him, stating

4

“a party once released cannot evade PLRA exhaustion

by simply restating previously made allegations in a

subsequent complaint.” Delk v. Hardeman Cnty. Corr.

Facility, No. 1:16-CV-01275, 2022 WL 891229, at *5 (W.D.

Tenn. Mar. 25, 2022). In the Fifth Circuit, at least one

federal district court has applied Bargher in the context

of a post-release amended complaint. Scott v. Hearne, No.

CV 19-0911, 2023 WL 3138000, at *3 (W.D. La. Apr. 27,

2023). Meanwhile, federal district courts from circuits

that have yet to weigh in have identified the split and

struggled to resolve the issue. Sanchez v. Nassau Cnty.,

662 F. Supp. 3d 369, 397 (E.D.N.Y. 2023) (surveying case

law from inside and outside the Second Circuit and noting

widespread disagreement among federal courts); Makell v.

Cnty. of Nassau, 599 F. Supp. 3d 101, 109 (E.D.N.Y. 2022)

(same, and reaching a different outcome than Sanchez).

These lower court decisions confirm that the split on

PLRA exhaustion is not a “mirage.” Resp. Br. Opp. At 2.

The split is real. Eighth Circuit’s decision below deepens

it. This Court should resolve it.

II. The Decision Below Is Wrong.

The Eighth Circuit joined the wrong side of this

split. Respondent’s contrary argument misreads Jones v.

Bock and draws a series of mistaken interferences from

inapposite cases.

Jones held that the PLRA’s silence on pleading

exhaustion is strong evidence that “the usual practice”

should be followed, meaning that exhaustion is an

affirmative defense to be pleaded and proved by the

defendant. 549 U.S. 199, 212 (2007). But the PLRA is

5

“not truly silent” on amendments to complaints, which

necessarily happen after a lawsuit is “brought.” Appx.

15a. “Brought” is the key term, and Congress’ use of the

past tense is significant because it unambiguously refers

to the beginning of a case. Gundy v. United States, 588

U.S. 128, 143, (2019) (noting significance of past-tense

verb in determining Congress’ intent). Congress’ use

of “boilerplate” statutory language does not mean the

language does not reflect Congressional judgment. See

Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S.

197, 235 (2020) (noting that Congress uses so-called

boilerplate “because it offers tried-and-true language

to ensure a precise and predictable result”). Here,

Congress used “brought” to establish that a prisoner’s

exhaustion obligation is determined when they start the

case. “Brought,” after all, has a settled and fixed meaning

throughout the federal code, and that settled and fixed

meaning refers to the beginning of a case. Harris, 216

F.3d at 973-74 (describing “settled legal definition” of

“brought”).

Respondent also relies on Ramirez and Perttu, but

neither case informs how the Court should decide this one.

Resp. Br. Opp. 8-10, 19-23. Ramirez addressed a different

question: whether a prisoner lawsuit filed after a grievance

was filed—but before the grievance is decided—could be

“cured” by a supplemental pleading. Ramirez v. Collier,

595 U.S. 411, 422-423 (2022). That question is not at issue

here because it is undisputed that Respondent ignored the

grievance process during his four years of incarceration.

Appx. 37a. Second, and more importantly, Respondent

concedes that the language he highlights from Ramirez

was dicta. Resp. Br. Opp. at i. Ramirez merely observed

that the failure to complete the exhaustion process was

6

“arguably cured” by a post-exhaustion supplemental

pleading. Id. at 423. But the Court expressly declined

to decide even that issue because the case was in a

preliminary posture and because it had not been raised

in any of the courts below. Id. at 422-423. Ramirez’s dicta

on a different PLRA issue that it didn’t purport to resolve

is no barrier to review here.

Perttu also does not speak to the issue here. Perttu

decided the narrow issue of whether a party has a jurytrial right on a PLRA exhaustion claim when exhaustion

is “intertwined” with the merits. Perttu v. Richards, 605

U.S. 460, 469 (2025); see also id. at 489-90 (Barrett, J.,

dissenting) (describing narrow circumstances in which the

Perttu rule would apply). Even if Perttu were relevant,

it would only confirm that the Eighth Circuit was wrong.

Perttu held that a party had a jury-trial right on a PLRA

exhaustion claim that is intertwined with the merits, and

it reached that conclusion because the PLRA was silent

on the issue. Id. at 469. Here, by contrast, the PLRA is

“not truly silent” about when Respondent “brought” this

lawsuit. Appx. 15a.

Respondent’s remaining cases —Royal Canin

and Polansky—have nothing to do with the PLRA or

exhaustion. Resp. Br. Opp. at 9-10. Together they stand

for the unremarkable proposition that the Federal Rules of

Civil Procedure are the default unless Congress displaces

them. But here, Congress did create a special rule: strict

and mandatory exhaustion for prisoners, determined by

the prisoner’s incarceration status at the time a lawsuit

is “brought.” Royal Canin and Polansky support, and do

not undermine, the rule Petitioners seek here.

7

III. This Case Is An Ideal Vehicle To Resolve A Split

On An Important Issue.

Contrary to Respondent’s assertions, this case is an

ideal vehicle because the question presented is the only

issue; a reversal by this Court will end the case. Pet. 1516. This Court often decides case-dispositive issues in

an interlocutory posture “where the opinion of the court

below has decided an important issue, otherwise worthy

of review, and Supreme Court intervention may serve to

hasten or finally resolve the litigation.” Steven Shapiro, et

al., Supreme Court Practice, 4-57 (11th Ed. 2019) (citing

examples). That is exactly the situation here.

Indeed, 1292(b) certification exists for this very

purpose. See 28 U.S.C. 1292(b) (authorizing the district

court to certify an interlocutory appeal when “an

immediate appeal from the order may materially advance

the ultimate termination of the litigation”). Both the

district court and court of appeals found this case met

all three criteria, and Respondents did not oppose

certification below. Appx. 21a-31a.

That leaves Respondent’s judicial estoppel argument,

raised for the first time in this litigation. This Court

normally declines to entertain arguments that were

not raised in the courts below. E.g., Kingdomware

Technologies, Inc. v. United States, 579 U.S. 162, 173 (2016).

And here, Respondent failed to raise judicial estoppel at

every stage of the case before his Brief in Opposition.

Respondent did not raise estoppel when Petitioners moved

for early summary judgment, or when they moved for

1292(b) certification. Likewise, Respondent did not raise

estoppel before the Eighth Circuit. Respondent’s judicial

estoppel argument is thus forfeited.

8

Even if not forfeited, Respondent’s newly-discovered

judicial estoppel argument is wrong for at least two reasons.

First, there is no tension between Petitioner’s statute of

limitations argument and its PLRA exhaustion argument

and therefore no occasion to apply judicial estoppel. Reed

Elsevier, Inc. v. Muchnick, 559 U.S. 154, 170 (2010). To

apply judicial estoppel, the estopped party’s positions must

be irreconcilable. See New Hampshire v. Maine, 532 U.S.

742, 751 (2001) (requiring the estopped party’s positions to

be “clearly inconsistent”). That high bar is not met here.

At the district court, Petitioners argued that the state

law malpractice claim was commenced outside the fouryear limitations period and should be dismissed for that

reason. ECF Doc. 30 at 13-16. Petitioners later argued

that Respondent was incarcerated at the time his lawsuit

was “brought” and was therefore subject mandatory

PLRA exhaustion. ECF Doc. 81 at 6-10. These arguments

are not inconsistent because one argument deals with

timeliness of a state-law claim, and the other deals with

Congressionally-mandated pre-condition to suit.

Second, judicial estoppel “typically applies when,

among other things, a party has succeeded in persuading

a court to accept that party’s earlier position, so that

judicial acceptance of an inconsistent position in a later

proceeding would create the perception that either the

first or the second court was misled.” Reed Elsevier, 559

U.S. at 170. But here, Respondent voluntarily dismissed

his state law medical malpractice claim. ECF Doc. 38 at

1. Petitioners thus did not succeed in persuading a court

about the limitations period on the malpractice claim. See

Landry v. Dep’t of Child & Fam. Servs., No. CV 21-794,

2021 WL 2374798, at *4 (E.D. La. June 10, 2021) (declining

to apply judicial estoppel when party voluntarily dismissed

their claims).

9

Respondent also points out that he and other similarlysituated individuals could have simply refiled their

complaints after they were released from incarceration,

making it judicially uneconomical to dismiss them in the

first place. Resp. Br. Opp. At 32. Maybe so. See Harris,

216 F.3d at 980 (discussing possibility of refiling). But their

judicial economy argument cuts both ways, as the Sixth

Circuit recognized:

[T]hough dismissal without prejudice may well

be judicially uneconomical in the instant case,

to excuse plaintiff’s duty to exhaust in every

instance would encourage all prisoners nearing

completion of their sentences to eschew the

grievance process in favor of the courts.

Cox v. Mayer, 332 F.3d 422, 427 (6th Cir. 2003) (emphasis

original). That, in turn, would discourage use of prison

grievance processes, increase the courts’ overall litigation

burden, and deny prison officials a chance to resolve

inmates’ concerns, all in frustration of Congress’ purpose

in enacting the PLRA. Porter v. Nussle, 534 U.S. 516,

525 (2002). Moreover, the circuits have recognized that

the opportunity costs of litigation change post-release,

when inmates are likely to have less time on their hands

than they do while incarcerated. Harris, 216 F.3d at 978;

Witzke v. Femal, 376 F.3d 744, 750 (7th Cir. 2004). So it is

not a foregone conclusion that such cases will simply be

refiled. See Harris, 216 F.3d at 980.

In any event, the exhaustion analysis should operate

in a uniform manner in every circuit. It does not, as the

cases discussed above and in the Petition demonstrate.

The issue presented in this case will continue to divide

the lower courts until this Court resolves the issue.

10

CONCLUSION

For the reasons discussed above and in the Petition,

the Court should grant the petition and reverse the Eighth

Circuit.

Respectfully submitted,

Keith Ellison

Attorney General

State of Minnesota

Liz Kramer

Solicitor General

Counsel of Record

Michael Goodwin

Assistant Attorney General

Benjamin Harringa

Assistant Attorney General

445 Minnesota Street, Suite 600

St. Paul, MN 55101

(651) 757-1010

liz.kramer@ag.state.mn.us

Counsel for Petitioners

Dated: November 14, 2025