Norman Shelton v. Bryan Bledsoe

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 12-4226
_____________

NORMAN SHELTON,
Appellant

v.

BRYAN A. BLEDSOE, Warden of USP Lewisburg;
THOMAS A. KANE,
ACTING DIRECTOR OF BUREAU OF PRISONS;
JOSEPH NORWOOD, REGIONAL DIRECTOR OF THE
NORTHEAST BUREAU OF PRISONS;
CHUCK MAIORANA, Associate Warden at USP Lewisburg;
KRISTA BAHRE, Associate Warden at USP Lewisburg;
JAMES DUNKELBERGER,
Case Manager Coordinator at USP Lewisburg;
JOHN ADAMI, Unit Manager at USP Lewisburg; J
FOSNOT, Acting Captain of Security at USP Lewisburg;
F. PERRIN, Corrections Officer at USP Lewisburg with
ranks of Lieutenant and Special Investigation Supervisor;
S. HEATH, Corrections Officer at USP Lewisburg with ranks
of Lieutenant and Special Investigation Supervisor;
NELSON DREES, Corrections Officer at USP Lewisburg
with ranks of Lieutenant
and Special Investigation Supervisor;
WHITAKER, Corrections Officer at USP Lewisburg;
RUPERT, Correction Officer,
Corrections Officer at USP Lewisburg;
ZERDES, Corrections Officer at USP Lewisburg; ROOP,
Corrections Officer at USP Lewisburg;
WELLS, Corrections Officer at USP Lewisburg; POTTER,
Corrections Officer at USP Lewisburg;
KULAGO, Corrections Officer at USP Lewisburg; FISHER,
Corrections Officer at USP Lewisburg;
MOFFIT, Corrections Officer at USP Lewisburg; COMBE,
Corrections Officer at USP Lewisburg;
 THE UNITED STATES OF AMERICA, through its
department, THE FEDERAL BUREAU OF PRISONS
JOHN DOE CORRECTION OFFICERS
______________

APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. No. 3:11-cv-01618)
District Judge: Honorable William J. Nealon
____________

Argued
September 11, 2013
____________

Before: McKEE, Chief Judge, SMITH and SLOVITER,
Circuit Judges

(Opinion Filed: January 7, 2015)
____________

Stephen D. Brown, Esq.
Christine C. Levin, Esq. (ARGUED)
Jennifer L. Burdick, Esq.
Francis J. Demody, Esq.
Sean P. McConnell
Dechert LLP
Cira Centre
2929 Arch St.
Philadelphia, PA 19104

Attorneys for Plaintiff-Appellant

Michael J. Butler, Esq. (ARGUED)
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

Attorney for Defendants-Appellees

2
 ____________

OPINION OF THE COURT
____________

McKEE, Chief Judge.

Norman Shelton appeals the district court’s denial of
class certification and grant of summary judgment in favor of
defendants on Shelton’s claims for alleged violations of the
Eighth Amendment and the Federal Tort Claims Act
(“FTCA”). For the reasons that follow, we will vacate the
order denying class certification and granting summary
judgment to defendants on Shelton’s Eighth Amendment
claim. We will affirm the district court’s dismissal of
Shelton’s FTCA claim.

I. FACTS AND PROCEDURAL HISTORY

The Special Management Unit, or “SMU,” is a
housing unit within the United States Penitentiary at
Lewisburg, Pennsylvania (“USP-Lewisburg”). The SMU
houses inmates who have been identified as having violent
tendencies or who have a history of gang involvement during
their incarceration. Inmates assigned to the SMU are
confined to their cells for 23 hours a day, but they can spend
the remaining hour in a recreation cage if they choose. SMU
officials (including several of the defendants) are responsible
for assigning cellmates in a manner that ensures the safety
and security of the prison. When first assigned to the SMU,
inmates are interviewed by prison officials. Information
obtained during the interview is used to ensure that inmates
who may be hostile to each other are not housed in the same
cell.

Shelton, an inmate at USP-Lewisburg, brought this
action on behalf of himself and other inmates housed in the
SMU. He alleges that the defendants have engaged in a
pattern, practice, or policy of improperly placing inmates who
are known to be hostile to each other in the same cell. He

3
also claims that the defendants fail to intervene when the
predictable inmate-on-inmate violence erupts, and that
defendants improperly restrain inmates who refuse cell
assignments with inmates who are known to be hostile to
them. The complaint seeks damages for Shelton personally,
but it seeks only injunctive and declaratory relief on behalf of
the class. Appendix (“A A.”) 88-89.

Shelton’s individual claims under the Eighth
Amendment and the FTCA were initially based on two
separate incidents in 2009, one of which occurred in August,
and the other in November. However, Shelton voluntarily
dismissed claims arising from the August incident. We are
therefore only concerned with the November incident, which
occurred when Shelton was scheduled to be moved to another
cell and housed with an inmate named Carr. According to
Shelton, Carr had previously told a prison official, defendant
Raup, that he would attack Shelton if they were housed in the
same cell.

Raup purportedly threatened Shelton with punitive
restraints when Shelton asked not to be housed with Carr.
Shelton alleges that he was nevertheless physically forced
into the cell by defendants Raup, Zelder, and two John Doe
corrections officers. The next day, while Shelton was
bending over to retrieve a food tray, Carr purportedly
assaulted him. Shelton alleges that defendants Fisher, Raup,
Kulago, Zelder, Moffit and Combe were outside his cell
during the attack but did not attempt to intervene. The
defendants claim that they responded in accordance with
applicable policies that are designed to protect both inmates
and guards.

Shelton’s Eighth Amendment claims on behalf of the
class are based on allegations that prison officials improperly
placed inmates in cells with inmates known to be hostile to
them. He alleges that the committee that makes the cell
assignments places hostile inmates in the same cell despite
committee’s knowledge of prior violence between the inmates
and its knowledge of the obvious risk the cell assignments
create. According to Shelton, the injurious effects of this
practice are exacerbated by a prison policy which prevents

4
guards from promptly intervening when inmate-on-inmate
violence erupts. This policy purportedly requires corrections
officers to stand outside a cell and use only verbal warnings
until a lieutenant arrives when inmate violence erupts inside a
cell.

Shelton defined the class for which he sought
injunctive and declaratory relief as:
[a]ll persons who are currently or will be
imprisoned in the SMU program at USP
Lewisburg. The class period commences from
the time of this filing, and continues so long as
USP Lewisburg Officials and Corrections
Officers persist in the unconstitutional patterns,
practices, or policies of (1) placing hostile
inmates together in cells or recreation cages,
and enforcing this placement through the use of
punitive restraints, and (2) failing to take any
reasonable measures to protect the inmates from
inmate-on-inmate violence by hostile inmates.

A A. 77 (Compl. ¶ 119).

Shelton filed his motion for class certification 90 days
after he filed the complaint, as required by Local Rule 23.3.
Defendants responded by opposing class certification and
asking the district court to dismiss the claims or grant
summary judgment in their favor. No discovery requests
were filed by either party; no disclosures were provided; and
no discovery occurred. However, Shelton filed a brief
opposing summary judgment, and he attached a Rule 56(d)
declaration to that brief. See Fed. R. Civ. P. 56(d). The
declaration stated that counsel needed discovery in order to
properly respond to the defendants’ motions.

As we noted at the outset, the district court denied
Shelton’s motion for class certification and granted
defendants’ motion for summary judgment. The court did so
without first addressing Shelton’s Rule 56(d) declaration.
This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 28

5
U.S.C. § 1331, and we have jurisdiction to review final
decisions of a district court pursuant to 28 U.S.C. § 1291. We
review rulings on class certification for abuse of discretion.
A court abuses its discretion “if [its] decision rests upon a
clearly erroneous finding of fact, an errant conclusion of law
or an improper application of law to fact.” Hayes v. Wal-
Mart Stores, Inc., 725 F.3d 349, 354 (3d Cir. 2013) (citation
and internal quotation marks omitted). Our review of the
district court’s legal rulings is de novo. Id.

To prevail on a motion for summary judgment, the
moving party must demonstrate “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
reviewing a grant of summary judgment, we assess the record
using the same standard that district courts apply. Interstate
Outdoor Adver., L.P. v. Zoning Bd. of Twp. of Mount Laurel,
706 F.3d 527, 530 (3d Cir. 2013). We must review the record
in the light most favorable to the nonmoving party and draw
all reasonable inferences in that party’s favor. Id.

We review the district court’s response to a Rule 56(d)
declaration for abuse of discretion. Murphy v. Millennium
Radio Grp. LLC, 650 F.3d 295, 310 (3d Cir. 2011).

III. CLASS CERTIFICATION

Class actions are an exception to the general rule that
litigation must be conducted by individual named parties. See
Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013).
Rule 23 of the Federal Rules of Civil Procedure contains the
procedural requirements for class action litigation. A party
seeking to bring a class action “must affirmatively
demonstrate his[or her] compliance” with Rule 23. Id. An
inquiry under Rule 23 begins with a determination of whether
the plaintiff has satisfied the prerequisites of Rule 23(a):
numerosity, commonality, typicality, and adequacy of the
class representative. Depending on the type of class the
movant seeks to certify, s/he must also demonstrate that the
class meets certain requirements of Rule 23(b).

Shelton asked the court to certify a class under Rule

6
23(b)(2), which applies when “the party opposing the class
has acted or refused to act on grounds that apply generally to
the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2). The district court did not
analyze the specific requirements of Rule 23(a) or Rule
23(b)(2). Instead, it denied Shelton’s motion for class
certification because it found that the proposed class was not
“objectively, reasonably ascertainable.” Shelton v. Bledsoe,
No. 3:CV-11-1618, 2012 WL 5250401, at *4 (M.D. Pa. Oct.
24, 2012).

Because we have not yet addressed the issue, this
appeal requires us to decide whether ascertainability is a
requirement for certification of a Rule 23(b)(2) class that
seeks only injunctive and declaratory relief. We must also
address the question of whether the district court properly
defined the class in analyzing whether class certification was
appropriate.

A. Ascertainability

The word “ascertainable” does not appear in the text of
Rule 23. However, “[a]lthough not specifically mentioned in
the rule, an essential prerequisite of an action under Rule 23
is that there must be a ‘class.’” 7A C. Wright, A. Miller, &
M. Kane, Fed. Prac. & Proc. Civ. § 1760 (3d ed. 2005).
Courts have generally articulated this “essential prerequisite”
as the implied requirement of “ascertainability”—that the
members of a class are identifiable at the moment of
certification. Because the question is intensely fact-specific
and the origins of the requirement murky, a precise definition
of the judicially-created requirement of ascertainability is
elusive. See Alliance to End Repression v. Rochford, 565
F.2d 975, 980 n.6 (7th Cir. 1977) (noting that “[i]t is not clear
whether the source of th[e] implied requirement [of
ascertainability] is . . . Rule 23(a)(2) or more simply
something inherent in the very notion of a ‘class’”). We
recently held, in the context of a Rule 23(b)(3) class action,
that certification is only appropriate if the members of the
class are “currently and readily ascertainable based on
objective criteria.” Marcus v. BMW of N. Am., LLC, 687 F.3d

7
583, 593 (3d Cir. 2012).

In Marcus, we analyzed the question of
ascertainability separately from the question of whether the
class was properly defined under Rule 23(c)(1)(B). See Fed.
R. Civ. P. 23(c)(1)(B) (“An order that certifies a class action
must define the class and the class claims, issues, or defenses
. . . .”).1 We have interpreted Rule 23(c)(1)(B) to require a
certification order that includes “a readily discernible, clear,
and precise statement of the parameters defining the class or
classes to be certified.” Wachtel ex rel. Jesse v. Guardian
Life Ins. Co. of Am., 453 F.3d 179, 187 (3d Cir. 2006).
Marcus stands for the proposition that ascertainability
requires something more than a class capable of clear
definition by a court; it requires that the class’s members be
identifiable. 687 F.3d at 593 (“If class members are
impossible to identify without extensive and individualized
fact-finding or ‘mini-trials,’ then a class action is
inappropriate.”). However, Marcus involved a Rule 23(b)(3)
class, and it is not clear that the reasons for requiring
ascertainability are applicable here, where Shelton attempted
to certify a class under Rule 23(b)(2) seeking only injunctive
and declaratory relief.

Though classes certified under Rule 23(b)(3) and Rule
23(b)(2) all proceed as “class actions,” the two subsections
actually create two remarkably different litigation devices.
Rule 23(b)(3) requires that “the court finds that the questions
of law or fact common to class members predominate over

1
We did not analyze ascertainability as an implied
requirement of Rule 23(a), as some other courts have done.
See Floyd v. City of New York, 283 F.R.D. 153, 161
(S.D.N.Y. 2012) (“Some courts have added an ‘implied
requirement of ascertainability’ to the express requirements of
Rule 23(a) . . . .” (citing In re Initial Pub. Offerings Sec.
Litig., 471 F.3d 24, 30 (2d Cir. 2006))). Instead, in Marcus
we treated ascertainability as an implied requirement, the
analysis of which preceded the Rule 23(a) analysis. Marcus,
687 F.3d at 593. This divergence illustrates another
ambiguity of the ascertainability standard: the section of Rule
23 from which it is implied.

8
any questions affecting only individual members, and that a
class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.” Fed. R. Civ.
P. 23(b)(3). As compared to Rule 23(b)(2), Rule 23(b)(3)
“allows class certification in a much wider set of
circumstances” including those “in which class-action
treatment is not as clearly called for.” Wal-Mart Stores, Inc.
v. Dukes, 131 S. Ct. 2541, 2558 (2011) (citation and internal
quotation marks omitted). Because a Rule 23(b)(3) class is
such an “adventuresome innovation,” id., Congress included
additional “procedural safeguards for (b)(3) class members
beyond those provided for (b)(1) or (b)(2) class members.”
Comcast, 133 S. Ct. at 1432. In addition to requiring
predominance and superiority for such a class, Rule 23
requires that potential class members be given the
opportunity to opt-out, and that they receive “best notice that
is practicable under the circumstances, including individual
notice to all members who can be identified through
reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B).

In contrast, “[t]he key to the (b)(2) class is the
‘indivisible nature of the injunctive or declaratory remedy
warranted—the notion that the conduct is such that it can be
enjoined or declared unlawful only as to all of the class
members or as to none of them.’” Wal-Mart, 131 S. Ct. at
2557 (emphasis added) (quoting Richard A. Nagareda, Class
Certification in the Age of Aggregate Proof, 84 N.Y.U. L.
Rev. 97, 132 (2009)). Because there is no right to opt out
from such a class, and because significant individual issues
in a (b)(2) class might present manageability issues and
undermine the value of utilizing the class action mechanism,
we have instructed that such classes must be cohesive. See
Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d Cir.
1998). However, this requirement comes from Rule 23(b)(2)
itself, not from any general requirement of ascertainability.
Because the focus in a (b)(2) class is more heavily placed on
the nature of the remedy sought, and because a remedy
obtained by one member will naturally affect the others, the
identities of individual class members are less critical in a
(b)(2) action than in a (b)(3) action. See Wal-Mart, 131 S.
Ct. at 2558 (“When a class seeks an indivisible injunction
benefitting all its members at once, there is no reason to

9
undertake a case-specific inquiry into whether class issues
predominate or whether class action is a superior method of
adjudicating the dispute.”); Barnes, 161 F.3d at 143 n.18
(“Injuries remedied through (b)(2) actions are really group,
as opposed to individual injuries.” (citation omitted)).

Indeed, an Advisory Committee note to Rule 23 notes
that “illustrative” examples of a Rule 23(b)(2) class “are
various actions in the civil-rights field where a party is
charged with discriminating unlawfully against a class,
usually one whose members are incapable of specific
enumeration.” Fed. R. Civ. P. 23 advisory committee’s note
(1966) (emphasis added). In light of this guidance, a
judicially-created implied requirement of ascertainability—
that the members of the class be capable of specific
enumeration— is inappropriate for (b)(2) classes. Moreover,
the enforcement of the remedy usually does not require
individual identification of class members in (b)(2) class
actions: “If relief is granted . . . the defendants are legally
obligated to comply, and it is usually unnecessary to define
with precision the persons entitled to enforce compliance,
since presumably at least the representative plaintiffs would
be available to seek . . . relief if necessary.” Rice v. City of
Phila., 66 F.R.D. 17, 19 (E.D. Pa. 1974).

Thus, it does not follow from our holding in Marcus
that ascertainability is always a prerequisite to class
certification. In the context of a (b)(3) class, the requirement
that the class be defined in a manner that allows ready
identification of class members serves several important
objectives that either do not exist or are not compelling in
(b)(2) classes.2 See Carrera v. Bayer Corp., 727 F.3d 300,

2
First, it eliminates serious administrative
burdens that are incongruous with the
efficiencies expected in a class action by
insisting on the easy identification of class
members. . . . Second, it protects absent class
members by facilitating the best notice
practicable . . . in a Rule 23(b)(3) action. . . .
Third, it protects defendants by ensuring that
those persons who will be bound by the final

10
307 (3d Cir. 2013) (noting that ascertainability plays “key
roles . . . as part of a Rule 23(b)(3) class action lawsuit”).
The ascertainability requirement ensures that the procedural
safeguards necessary for litigation as a (b)(3) class are met,
but it need not (and should not) perform the same function in
(b)(2) litigation. See Battle v. Pennsylvania, 629 F.2d 269,
271 n.1 (3d Cir. 1980) (“Where . . . the class action seeks
only injunctive or declaratory relief, for which the notice
provision of [Rule] 23(c)(2) is not mandatory, the district
court has even greater freedom in both the timing and
specificity of its class definition.”).

Although this issue is a matter of first impression for
us, some of our sister courts of appeals have addressed this
issue and agree that it is improper to require ascertainability
for a (b)(2) class. The Courts of Appeals for the First and
Tenth Circuits explicitly rejected an ascertainability
requirement for Rule 23(b)(2) classes. The court’s analysis in
Shook v. El Paso County is particularly germane to our
inquiry. 386 F.3d 963, 972 (10th Cir. 2004). There, the court
explained that “many courts have found Rule 23(b)(2) well
suited for cases where the composition of the class is not
readily ascertainable; for instance, in a case where the
plaintiffs attempt to bring suit on behalf of a shifting prison
population.” Id. at 972. Similarly, the First Circuit explained
that a (b)(2) class definition need not be as precise as that of a
(b)(3) class. See Yaffe v. Powers, 454 F.2d 1362, 1366 (1st
Cir. 1972) (holding that, because “notice to the members of a
(b) (2) class is not required . . . the actual membership of the
class need not . . . be precisely delimited”). Both courts
reasoned that the district courts erred in those cases by
requiring ascertainability (or “identifiability”), which the
courts noted was only applicable to Rule 23(b)(3) classes.
See Shook, 386 F.3d at 972 (noting that the district court
impermissibly “imported additional elements from Rule
23(b)(3) into the (b)(2) analysis [including] identifiability”);
Yaffe, 454 F.2d at 1366 (“[T]he [district] court applied

judgment are clearly identifiable.

Marcus, 687 F.3d at 593 (internal citations and quotation
marks omitted); see also Hayes, 725 F.3d at 354-55.

11
standards applicable to a subdivision (b) (3) class rather than
to a subdivision (b) (2) class.”).

The Court of Appeals for the Fifth Circuit has also tied
the ascertainability (or “precise class definition”) requirement
to the procedural protections of Rule 23(b)(3), noting that
“[s]ome courts have stated that a precise class definition is
not as critical where certification of a class for injunctive or
declaratory relief is sought under [R]ule 23(b)(2).” In re
Monumental Life Ins. Co., 365 F.3d 408, 413 (5th Cir. 2004).
However, the court clarified that, “[w]here notice and opt-out
rights are requested [in a (b)(2) class action] . . . a precise
class definition becomes just as important as in the [R]ule
23(b)(3) context.” Id. There, plaintiffs sought a mix of
injunctive relief and backpay. Id. Here, only injunctive and
declaratory relief are sought.3

Other courts have certified very broadly-defined (b)(2)
classes without explicitly discussing ascertainability. For
example, the Court of Appeals for the Second Circuit upheld
the certification of a Rule 23(b)(2) class that was probably
unascertainable. The class there included children currently
in the custody of a city agency, those who would be in
custody in the future, and even some children who should be

3
The Court of Appeals for the Seventh Circuit has also
discussed this issue, though its guidance is less clear. It
initially implied a “definiteness” requirement from Rule 23,
but it held that “a class that satisfies all of the other
requirements of Rule 23 will not be rejected as indefinite
when its contours are defined by the defendants’ own
conduct.” Rochford, 565 F.2d at 978. Subsequently, it
clarified that Rochford’s “tolerance of a wildly indefinite
class definition” is disfavored, Jamie S. v. Milwaukee Pub.
Sch., 668 F.3d 481, 496 (7th Cir. 2012), and it suggested an
indefinite class may only be certified if its “members could be
enumerated eventually.” Rahman v. Chertoff, 530 F.3d 622,
626 (7th Cir. 2008). However, the classes in each of these
more recent cases failed to meet the requirements of Rule
23(a), and certification was inappropriate on that basis. See
Jamie S., 668 F.3d at 496-97; Rahman, 530 F.3d at 627.

12
known to the city agency. See Marisol A. v. Giuliani, 126
F.3d 372, 375 (2d Cir. 1997).4 In a recent case, a district
court for the Southern District of New York explained that
“[i]t would be illogical to require precise ascertainability in a
suit that seeks no class damages. The general demarcations of
the proposed class are clear . . . and that definition makes the
class sufficiently ascertainable for the purpose of Rule
23(b)(2).” Floyd v. City of New York, 283 F.R.D. 153, 172
(S.D.N.Y. 2012). That court also noted that a number of
other federal courts have certified unascertainable classes
under Rule 23(b)(2). See id. at 171-72 nn. 115-17 (collecting
cases).5 Finally, we think it significant that the Supreme
Court’s analysis of whether a class had been properly
certified under Rule 23(b)(2) in Wal-Mart Stores, Inc. v.
Dukes lacks any inquiry into “ascertainability.” 131 S. Ct. at
2557.

The nature of Rule 23(b)(2) actions, the Advisory
Committee’s note on (b)(2) actions, and the practice of many
of other federal courts all lead us to conclude that
ascertainability is not a requirement for certification of a
(b)(2) class seeking only injunctive and declaratory relief,
such as the putative class here. This does not suggest that we
are jettisoning the basic requirement that “there must be a
‘class’” in a class action. See C. Wright, A. Miller, & M.
Kane, supra § 1760. Rather, we are merely holding that, for
certification of a 23(b)(2) class seeking only declaratory or
injunctive relief, a properly defined “class” is one that: (1)
meets the requirements of Rule 23(a); (2) is sufficiently

4
That class was defined as “[a]ll children who are or will be
in the custody of the New York City Administration for
Children’s Services (“ACS”), and those children who, while
not in the custody of ACS, are or will be at risk of neglect or
abuse and whose status is or should be known to ACS.”
Marisol A., 126 F.3d at 375.
5
The district court in Floyd describes our decision in Baby
Neal for and by Kanter v. Casey, 43 F.3d 48 (3d Cir. 1994) as
certifying a Rule 23(b)(2) class that was “clearly
unascertainable.” Floyd, 283 F.R.D. at 172 n.117. It is
important to note that we did not specifically address
ascertainability in that case.

13
cohesive under Rule 23(b)(2) and our guidance in Barnes,
161 F.3d at 143; and (3) is capable of the type of description
by a “readily discernible, clear, and precise statement of the
parameters defining the class,” as required by Rule
23(c)(1)(B) and our discussion in Wachtel, 453 F.3d at 187.
No additional requirements need be satisfied.

B. Class Definition

Shelton’s proposed class, when properly defined, is
easily capable of the type of description demanded by Rule
23(c)(1)(B). As noted above, he seeks certification of a class
consisting of

[a]ll persons who are currently or will be imprisoned in
the SMU program at USP Lewisburg. The class
period commences from the time of this filing, and
continues so long as USP Lewisburg Officials and
Corrections Officers persist in the unconstitutional
patterns, practices, or policies of (1) placing hostile
inmates together in cells or recreation cages, and
enforcing this placement through the use of punitive
restraints, and (2) failing to take any reasonable
measures to protect the inmates from inmate-on-
inmate violence by hostile inmates.

A A. 77. The district court noted that Shelton proposed a
class of “all persons who are currently or will be imprisoned
in the [SMU] . . . .” Shelton, 2012 WL 5250401, at *1. For
reasons that are not at all apparent, the district court
improperly narrowed the class to inmates “placed with an
inmate that prison officials knew, or should have known,
posed a threat to that inmate[;]” inmates “housed with a
hostile inmate [and] assaulted by the hostile inmate, and
prison officials fail[ed] to intervene[;]” and “inmates who,
pursuant to a prison practice, are placed in painful punitive
restraints for refusing a dangerous cell assignment.” Id. at 5-
6. The court thereby imposed extra requirements requiring
the very individualized, case-by-case determinations that the
court then paradoxically ruled were fatal to class
certification. Though we have clarified that the type of
ascertainability analysis performed by the district court is

14
inappropriate here, it is also important to note that the district
court erred by narrowing the definition of the proposed class.

15
 It is difficult to understand why the district court
redefined the proposed class in this manner. Courts have
discretionary authority to “reshape the boundaries and
composition of the class,” but when they do so, “that action
entails a determination that reformulating the class will better
serve the purposes of Rule 23 and the underlying policies of
the substantive law than would denying certification
altogether.” Tobias Barrington Wolff, Discretion in Class
Certification, 162 U. Pa. L. Rev. 1897, 1925 (2014). Here
however, the court appears to have simply misinterpreted or
misunderstood the class Shelton was proposing. That resulted
in a class definition that undermined, rather than served, the
purposes of Rule 23 “and the underlying polices of the
substantive law.” See id. Given the declaratory and
injunctive relief that Shelton seeks, the narrowing of the
requested class was neither necessary nor appropriate.

Common sense supports the assumption that the
Bureau of Prisons (“BOP”) knows where inmates in a given
institution are housed, and the defendants have offered
nothing that would undermine that assumption or support a
finding that the BOP would have trouble determining which
inmates have been assigned to the SMU at USP-Lewisberg
since the complaint was filed. Accordingly, if Shelton has
satisfied the other requirements of Rule 23, the district court
should have no trouble describing the class as required by
Rule 23(c)(1)(B) and, eventually, Rule 23(c)(3)(A). Indeed,
in the unlikely event that it becomes necessary to actually
identify class members at some point during the litigation, the
district court should be able to determine individual members
based on the BOP’s own records.

The district court also erred in concluding that the
class was overly broad because some putative class members
have not yet suffered an injury. See Shelton, 2012 WL
5250401, at *5. There is no requirement that every class
member suffer an injury before a class is certifiable under
Rule 23. In fact, we have held to the contrary. In Hassine v.
Jeffes, we stated:

Rule 23 does not require that the representative

16
 plaintiff have endured precisely the same
injuries that have been sustained by the class
members, only that the harm complained of be
common to the class, and that the named
plaintiff demonstrate a personal interest or
threat of injury that is real and immediate, not
conjectural or hypothetical.

846 F.2d 169, 177 (3d Cir. 1988) (internal quotation marks
and alterations omitted) (second emphasis added).

This is particularly true in the context of a claim under
the Eighth Amendment, which protects against the risk—not
merely the manifestation—of harm. As the Supreme Court
has explained, “an inmate seeking an injunction to prevent a
violation of the Eighth Amendment must show that prison
officials are ‘knowingly and unreasonably disregarding an
objectively intolerable risk of harm, and that they will
continue to do so . . . into the future.’” Brown v. Plata, 131 S.
Ct. 1910, 1960 (2011) (citing Farmer v. Brennan, 511 U.S.
825, 846 (1994)). In Plata, prisoners with physical or mental
illness challenged a state prison system’s medical care
system. In deciding the propriety of the remedy that had been
granted to the prisoners, who comprised two separate Rule 23
classes, the Court explained that “[p]risoners who are not sick
or mentally ill do not yet have a claim that they have been
subjected to care that violates the Eighth Amendment, but in
no sense are they remote bystanders in [the state’s] medical
care system. They are that system’s next potential victims.”
Id. at 1940. There, as here, the focus was more on the
defendants’ conduct and policies than on the individual
identities or medical issues of each class member. See id.
(noting that “all prisoners in California are at risk so long as
the State continues to provide inadequate care”).

We have instructed district courts to consider this
aspect of Eighth Amendment claims when deciding whether
the requirements of Rule 23 have been met at the class
certification stage. See Hagan v. Rogers, 570 F.3d 146, 157-
58 (3d Cir. 2009) (holding that a class of “inmates . . . [who]
were either subject to actual skin infections, or were subject
to the threat of future injury due to deliberate indifference on

17
the part of prison officials in failing to contain the contagion”
should not fail for lack of typicality under Rule 23(a) because
all class members were at least “subject to the threat of an
injury”).

Thus, Shelton’s proposed class is not overbroad or
improperly defined for purposes of Rule 23. On remand, the
district court must consider whether the properly-defined
putative class meets the remaining Rule 23 requirements for
class certification.

IV. SUMMARY JUDGMENT

Shelton also appeals the district court’s entry of
summary judgment in favor of defendants on his individual
claims under the Federal Tort Claims Act and the Eighth
Amendment.6 We will first discuss the court’s failure to
consider the declaration Shelton’s attorney filed under Fed R.
Civ. P. 56(d) in opposition to summary judgment.

A. Rule 56(d)

As we noted earlier, Shelton’s opposition to the
defendants’ motion for summary judgment included a
declaration that his counsel submitted pursuant to Rule 56(d).
According to that declaration, Shelton needed discovery in
order to properly respond to the defendants’ summary
judgment motion.

“[I]t is well established that a court ‘is obliged to give
a party opposing summary judgment an adequate opportunity
to obtain discovery.’” Doe v. Abington Friends Sch., 480
F.3d 252, 257 (3d Cir. 2007) (quoting Dowling v. City of
Phila., 855 F.2d 136, 139 (3d Cir. 1988)). Rule 56(d) states
that “[i]f a nonmovant shows by affidavit or declaration that,

6
The district court’s order granting summary judgment to the
defendants disposed of Shelton’s remaining claims and
followed its order denying class certification. See Shelton v.
Bledsoe, No. 3:CV-11-1618, 2012 WL 5267034, at *8-9
(M.D. Pa. Oct. 24, 2012).

18
for specified reasons, it cannot present facts essential to
justify its opposition, the court may: (1) defer considering the
motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other
appropriate order.” Fed. R. Civ. P. 56(d).

Defendants rely on the non-precedential decision in
Superior Offshore International, Inc. v. Bristow Group, Inc.,
490 F. App’x 492, 501 (3d Cir. 2012), to argue that Shelton
was required to file a “motion” in order to seek relief under
Rule 56(d). The panel in Superior Offshore did state that “[a]
Rule 56(d) motion is the proper recourse of a party faced with
a motion for summary judgment who believes that additional
discovery is necessary before he can adequately respond to
that motion.” Id. (citation and internal quotation marks
omitted). We have previously referred to items filed under
Rule 56(d) as “motions.” See Murphy, 650 F.3d at 309-10.
More pointedly, the panel in Doe v. Abington Friends School
explained that, in responding to a motion for summary
judgment, “if the non-moving party believes that additional
discovery is necessary, the proper course is to file a motion . .
. .” 480 F.3d at 257.

However, we do not interpret these statements or our
opinions in Murphy or Doe as actually requiring that an
opposition under Rule 56(d) be registered in a motion to the
court. The unambiguous text of the Rule does not require an
opposition on Rule 56(d) grounds to be formally styled as a
motion. Indeed, the text of the rule, Advisory Committee’s
notes, our own precedent, and guidance from other circuit
courts all indicate that a formal motion is not required by the
Rule.

Rule 56 sets forth the procedure for requesting and
opposing summary judgment. It requires only that a party’s
request for summary judgment be styled as a motion. Rule
56(a) provides:

A party may move for summary judgment,
identifying each claim or defense . . . on which
summary judgment is sought. The court shall
grant summary judgment if the movant shows

19
 that there is no genuine dispute as to any
material fact and the movant is entitled to
judgment as a matter of law. The court should
state on the record the reasons for granting or
denying the motion.

Id. (emphasis added). The Rule specifically requires a
“motion” to be filed, and it refers to the party requesting
summary judgment as “the movant.” However, no such
language is used to refer to the party opposing summary
judgment. Rule 56(c) sets out the procedures that must be
followed to oppose a motion for summary judgment. It refers
to the party opposing a summary judgment not as a “movant,”
but merely as the “party asserting that a fact . . . is genuinely
disputed.” Fed. R. Civ. P. 56(c)(1). In describing the
procedures that must be followed to obtain or oppose
summary judgment, Rule 56(c) repeatedly refers to the initial
request for summary judgment as a motion, but it requires
only affidavits or declarations from the opposing party.7

The current dispute concerns the interpretation and
application of Rule 56(d), which by its own terms applies
only “When Facts are Unavailable to the Nonmovant.” Fed.
R. Civ. P. 56(d). The procedure by which the party opposing

7
Rather than requiring a motion to allege a factual dispute,
Rule 56(c)(1) requires that the opposing party “must support
the assertion [that a dispute of fact exists] by: (A) citing to
particular parts of materials in the record, including
depositions, [etc.]” Subdivision (2) provides that “[a] party
may object that the material cited to support or dispute a fact
cannot be [admitted into evidence.]” Fed. R. Civ. P. 56(c)(2).
We do not interpret the reference to “a party” to require that
the opponent to a summary judgment motion file an opposing
motion. Rather, it is clear from the context that the drafters
used the term there for sake of simplicity and clarity. Rule
56(c)(3) only addresses what the reviewing court may
consider and is not relevant to our inquiry. Rule 56(c)(4) is
entitled “Affidavits or Declarations.” It provides that
affidavits or declarations “used to support or oppose a motion
must be made on personal knowledge, [and] set out facts that
would be admissible in evidence.” Id. (emphasis added.)

20
summary judgment submits an affidavit or declaration under
Rule 56(d) supplants the procedure that would otherwise
follow under Rule 56(c) if facts were available to the
nonmovant. See 10B C. Wright, A. Miller, & M. Kane, Fed.
Prac. & Proc. § 2740 (3d ed. 2005) (“[W]hen the movant has
met the initial burden required for the granting of a summary
judgment, the opposing party must either establish a genuine
issue for trial . . . or explain why he cannot yet do so . . . .”).
As was true with regards to Rule 56(c), it makes little sense to
conclude that the drafters would refer to the party presenting
such an affidavit or declaration as a “nonmovant” if they
intended to require the affidavit or declaration to be presented
by motion. Moreover, the text of the Rule does not require
that the party who opposes summary judgment by filing an
affidavit or declaration must thereafter move for discovery.
Rather, the Rule simply allows the court to respond to a Rule
56(d) affidavit or declaration by “allow[ing] time . . . to take
discovery.” Fed. R. Civ. P. 56(d). Thus, no formal discovery
motion is contemplated, and we decline to infer any such
requirement.

This was readily apparent in the phrasing of the Rule
before the 2010 Amendments. See St. Surin v. V.I. Daily
News, Inc., 21 F.3d 1309, 1313-14 (3d Cir. 1994) (citing
cases that emphasize the requirement of an “affidavit”). The
Advisory Committee has explained that the Rules were
amended “without substantial change.” Fed. R. Civ. P. 56(d),
advisory committee’s note (2010). Prior to the amendments,
Rule 56(f), which became Rule 56(d), was captioned “When
Affidavits are Unavailable.” The Rule stated: “Should it
appear from the affidavits of a party opposing the motion that
[s/]he cannot for reasons stated present by affidavit facts
essential to justify his [or her] opposition, the court may
refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or depositions
to be taken or discovery to be had or may make such other
order as is just.” Costlow v. United States, 552 F.2d 560, 563
n.2 (3d Cir. 1997). The old rule thus assumes that the party
opposing summary judgment will file an affidavit, not a
motion for discovery, in response to a summary judgment
motion. Furthermore, the 2010 Amendments to the Federal
Rules of Civil Procedure allow for alternatives to a formal

21
affidavit such as “a written unsworn declaration, certificate,
verification, or statement subscribed in proper form as true
under penalty of perjury.” Fed. R. Civ. P. 56, advisory
committee’s note (2010).

Our holding that a formal motion is not required to
request discovery under Rule 56 is consistent with the
analysis of other circuit courts of appeals. Although the
request for discovery is sometimes—rather casually—
characterized as a “motion,” courts recognize that the
nonmoving party can respond to a motion for summary
judgment by filing an affidavit or declaration requesting
discovery. For example, before the current amendments to
Rule 56 were enacted, the Court of Appeals for the Tenth
Circuit stated that it was considering the denial of a Rule
56(f) “motion,” but the opposition was actually an affidavit
attached to the party’s response to the motion for summary
judgment. Trask v. Franco, 446 F.3d 1036, 1041-42 (10th
Cir. 2006). Other courts have followed similar practices.8

8
It is clear that many courts’ use of the word “motion” to
refer to an opposition registered pursuant to Rule 56(d) is
imprecise; affidavits and declarations are regularly demanded
and accepted. See Hicks v. Johnson, 755 F.3d 738, 743 (1st
Cir. 2014) (referring to a “rule 56(d) motion” but explaining
that “[t]o benefit from the protections of Rule 56(d), a litigant
must ordinarily furnish the nisi prius court with a timely
statement—if not by affidavit, then in some other
authoritative manner” (citation omitted)); Toben v.
Bridgestone Retail Operations, LLC, 751 F.3d 888, 894-95
(8th Cir. 2014) (considering a properly submitted affidavit
under Rule 56(d), but referring to it as a “motion”); In re
World Trade Center Lower Manhattan Disaster Site Litig.,
758 F.3d 202, 212 n.3 (2d Cir. 2014) (“[T]o the extent that
plaintiffs needed additional time for discovery, they failed to
file an affidavit pursuant to [Rule] 56(d).”); Nguyen v. CNA
Corp., 44 F.3d 234, 242 (4th Cir. 1995) (“[A] party may not
simply assert in its brief that discovery was necessary and
thereby overturn summary judgment when it failed to comply
with the requirement . . . to set out reasons for the need for
discovery in an affidavit.” (citation omitted)).

22
 Thus, nothing precludes a party from requesting an
opportunity for discovery under Rule 56(d) by simply
attaching an appropriate affidavit or declaration to that party’s
response to a motion for summary judgment, and by asserting
that summary judgment should not be granted without
affording the responding nonmovant an opportunity for
discovery. Moreover, we note that district courts usually
grant properly filed requests for discovery under Rule 56(d)
“as a matter of course,” whether the nonmovant’s response to
a summary judgment motion is characterized as a motion,
affidavit, or declaration. Murphy, 650 F.3d at 309-10
(quoting Doe, 480 F.3d at 257); cf. Mid-South Grizzlies v.
Nat’l Football League, 720 F.2d 772, 779 (3d Cir. 1983).
This is particularly true when there are discovery requests
outstanding or where relevant facts are under control of the
party moving for summary judgment. Murphy, 650 F.3d at
310.

If discovery is incomplete, a district court is rarely
justified in granting summary judgment, unless the discovery
request pertains to facts that are not material to the moving
party’s entitlement to judgment as a matter of law. Doe, 480
F.3d at 257. Summary judgment may also be granted if the
Rule 56(d) declaration is inadequate. See Koplove v. Ford
Motor Co., 795 F.2d 15, 18 (3d Cir. 1986) (finding the
affidavit insufficient because it did not specify what
discovery was needed or why it had not previously been
secured). An adequate affidavit or declaration specifies
“what particular information that is sought; how, if disclosed,
it would preclude summary judgment; and why it has not
been previously obtained.” Dowling, 855 F.2d at 140 (citing
Hancock Indus. v. Schaeffer, 811 F.2d 225, 229-30 (3d Cir.
1987)).

Here, the district court granted summary judgment to
the defendants without even considering the declaration that
Shelton’s attorney filed in response to defendants’ motion for
summary judgment. This was an abuse of discretion.
Accordingly, we will reverse the grant of summary judgment
and remand so that the district court may consider counsel’s

23
declaration regarding the need for discovery.9

B. FTCA Exhaustion

Regardless of whether Shelton’s Rule 56(d)
declaration justifies discovery in advance of the court’s ruling
on defendants’ motion for summary judgment, it is clear that,
because he did not exhaust his administrative remedies,
Shelton cannot establish a claim for negligence under the
FTCA based on the purported incident in November 2009.

No claim can be brought under the FTCA unless the
plaintiff first presents the claim to the appropriate federal
agency and the agency renders a final decision on the claim.
28 U.S.C. § 2675(a); see also McNeil v. United States, 508
U.S. 106, 112 (1993); Deutsch v. United States, 67 F.3d 1080,
1091 (3d Cir. 1995) (“[A] claimant must have first presented
the claim, in writing and within two years after its accrual, to
the appropriate federal agency, and the claim must have been
denied.”). This requirement is jurisdictional and cannot be
waived. Rosario v. Am. Export-Isbrandtsen Lines, Inc., 531
F.2d 1227, 1231 (3d Cir. 1976).

Here, defendants supported their motion to dismiss
and/or for summary judgment on Shelton’s FTCA claim with
a declaration from Mike Romano, agency counsel for the
BOP. Romano stated that, based upon his search of the
administrative claims database of the BOP, Shelton had not
filed an administrative tort claim regarding any incident on
November 26, 2009. Romano did, however, confirm that
Shelton had filed seven tort claims regarding other incidents
in 2009 and 2011. Shelton’s only response to this declaration

9
To the extent the district court did not address the parties’
arguments as to the defendants’ motion to seal documents, the
district court can consider whether the documents should be
sealed on remand. The court’s inquiry should take into
consideration the amount of time that has passed since the
documents were originally filed and whether the institutional
concerns that may have initially justified sealing are still
sufficient to prevent Shelton from examining those
documents.

24
was his insistence that he needed discovery to prove that he
had filed an administrative tort claim. Shelton further argues
in a letter to this court that his complaint alleges that he
exhausted his remedies as to the November 26, 2009 incident.
He claims that allegation is sufficient because he needs
discovery to “bolster” his claim that he has appropriately
exhausted this claim. However, his argument ignores the fact
that the government has already produced the relevant
discovery. The government’s evidence establishes that
Shelton did not exhaust, and Shelton does not explain how
any additional discovery could refute the finding that he
failed to exhaust any claim arising from a November 26, 2009
incident.

The district court correctly found Shelton’s reply
inadequate and held that Romano’s declaration was sufficient
to establish that Shelton had not exhausted any claim arising
from the alleged incident on November 26, 2009.
Accordingly, the court granted the defendants’ motion to
dismiss the FTCA claim based on its conclusion that
Shelton’s failure to exhaust deprived the court of jurisdiction
to hear that claim. We agree. Accordingly, we will affirm
the district court’s finding that it had no jurisdiction to hear
Shelton’s FTCA claim.

V. CONCLUSION

For the foregoing reasons, we will vacate the order
denying Shelton’s motion for class certification and the order
granting summary judgment to defendants on Shelton’s
Eighth Amendment claims. We will remand for the district
court to consider both issues in a manner consistent with this
opinion. We will affirm the district court’s dismissal of
Shelton’s FTCA claim.

25