if no fault of harm has yet be falling that made the prison justice league's allegation in this lawsuit is that inmates in these still prison unit in general but including the one hundred members of the jail there in that  a substantial risk of serious harm as a direct result of the way that the warden of that prison runs in the fact that she is exercising deliberate indifference with regard to the way that officers are systemically using force force in a way that i not required to maintain a restore discipline now for social standing the third prong which we face with the question is whether or not the prison justice league in order to demonstrate that risk is required to  draw on a significant individual participation of its members the answer is it no it is not required it does not need to draw on significant participation of its members or due to that claim for at least two reasons the first is i believe the claim at least plausible it could be proved by looking exclusively to documents of witnesses that are within the defendant's control and if that's true it would necessarily require to spaceship any members beyond showing that there are members who themselves have standing which is a different problem of the test when i originally got this case what i envisioned was doing discovery to get copies a use of force reports was there voluminous to get videotapes from t v c j get copies of grievances and other similar documents all which are within the defendant's control and to take those and to submit them to the review of experts other people with expertise in the field of corrections and what i had to succeed those experts testimony would meant to reflect those constitutional mandates about only using force to the agree necessary to maintain or restore discipline but as a result of the way she sure owns the prison and does not keep her officers in line that inevitably that does create a risk of significant harm to the inmates and has in fact on so here so that's the first reason why i believe that the claim can be proven without significant participation of members but your first argument is you can't assign associational standing at this dismissal stage you have to have discovery to find out if it's a policy therefore no need to look at individual provocation etc that essentially i would seem yes more precisely though i believe that the allegations at this stage set forth a possible basis for showing that we can establish those claims without relying on significant participation of details members in the middle of it you're conceding that you have to rely on things that you don't yet hack because you have to get those from the defendant and then you've got to speculate about what may be contained in documents or videotapes when you get well no i don't believe that that's the it's schools of way that we can establish that claim but at the extreme end i mean with regard to the third element of associations stand in i think at least it's plausible to to believe that it could be established by looking school documents than there are any associations standing case granted in the use of force context where the courts ultimately have to decide was the force to dissimilar none of them regard prisons i'll grant you that that's a problem because wouldn't eighth amendment claims require that individual eyes look except when you're moving into this atmosphere just a policy of deliberate indifference but even there you would have to have shown that the warden was overlooking complaint after complaint there was another incident that there was a policy that that doesn't exist here let's see maybe or maybe not in this does get into the second point that i was going to play that even if you assume that in order to predict the future then let me just be clear i think that an inmate who just arrived at the unit a day before this lawsuit was filed if they had access to this information to understand the risk they were in would have a basis for seeking injunctive relief against the risk that they were facing it's not about the individuals who are filing it whether or not that they have themselves suffered injury at that juncture separate from facing the substantial risk of serious harm which is not entirely front of you ok that bar the prison justice league is a five a one c three nonprofit organization represented by the i r s and it has a board staff on one hand who are not members they administer the organization but on the other hand it is a membership base organization like many others like the n r a for instance and its members according to its bylaws its membership is limited to people who are currently incarcerated in a texas prison the prisoners  at the time of filing the lawsuit there were seven hundred members and one hundred who were in the particular prison that we're dealing with in this case instance of us that invest review that to some degree but of course looking what's happened in the past that doesn't mean that you have to look at what's happened in the past with regard to the particular people who are bringing the claim the prison justice league has one hundred members at these still you know that's a unit that has the capacity to hold just north of three thousand people so if we're operating at full capacity we talking about roughly three percent of the total population i would argue that there's nothing to stop those one hundred people from drawing out evidence from other inmates experience immediately before then that around them to establish that because of the systemic practices to which the warden of the unit is deliberately different they're all at risk i mean maybe a game to the standing of the members which is a separate element put it under the circuits case law or a versus a t f which is twenty twelve case only one member of the association needs to have immediate standing to bring the claims the you're speaking with respect to standing and i was pointing out that the standing of the the members of the association i mean it's a separate element and there is case law to the effect that only one person needs to have standing for the association itself to satisfy that element which i believe psychiatric society but the problem for you is you have to be able to demonstrate that you can get to demand you can get to proof of the use of excessive force without some individualized fact driven determination about whether or not excessive force was used don't don't you have to have that in order to prevail on these claims and go forward on the client we certainly don't need an individualized terminations on behalf of all of the members of the association or any more than a sample of the members of of parties that have standing to bring claims which perhaps in summary judgment or a child are not successful with and i mean it does require predicting the future but going back to the legal standard whether or not it requires a significant individual participation of p j ellesmere you mention the case of the associa of american physicians did in that case say you've got to be able to establish this banding without a fact intensive individual inquiry from them with the participation of those individual member and you're saying in order to have associations then you've got to be able to do that your contention is you can do that on an excessive force calling without that kind of testimony or information i think there are some examples of excessive force that are more others i mean if you assume a hypothetical with me for instance where officers periodic lee and predictably formed a document that inmates had to walk through in which they would be beaten when they passed out the allegations claim but that is something that you could look at from the outside that would clearly have been a violation of the amendment and i feel that another extreme example is you can look to document terry evidence initially and relying on some witnesses if necessary but certainly not more than a sample of the membership involved perhaps other witnesses who are not members but with respect you know establish that there is a systemic practice of using force that grossly exceeds what's necessary to maintain discipline and it may be that once we develop the evidence that you know it's not adequate to pass muster on summary judgment it could be that the association would be dismissed on summary judgment looking at it from the base of the planes i believe that we've established a plausible basis for believing that it could be accomplished this court should affirm the dismissal of the prison justice league games as the prison justice league does not have standing to bring these claims that would require the individual participation of its members let me pick you up i think that's a given th of the individual affected members of the programs here as plaintiffs to resolve the claims or prayers for relief at issue does that mean that they can participate witnesses your honor  honor and the individual participation that we're looking at here is similar to common proof in a class action would you need to have individualized inquiries into the facts of each case to prove up the underlying use of force claims that the prison justice league is relying on to say that warden bailey was deliberately indifferent to a systemic problem in her unit there is a systemic i mean if the claim of the plaintiff is that is there's a systemic flaw here that the policy here and the culture that's created by the system itself is to promote this kind of creates this kind of all in this case because there is this that underlying excessive use of force claim which is a fact intensive inquiry is the supreme court laid out in hudson versus mill and there are certain factors that have to be examined and they have to be examined on a case by case basis that's where that individualized participation comes in because you have to look at why force was used how much force was used when you say case by case you mean individual inmate by individual and yes pardon me your honor initial inmate by individual inmate in order to prove that overlying claim of the deliberate indifference to prove morton bailey was deliberately indifferent we have to know what she was and deliberately indifferent to the p j l has asserted that in this case it was uses of force against the prison justice league and so given that claim and given the standard for that claim asserted by the supreme court in hudson versus mcmillan specifically the most important inquiry any use of force case whether or not the officers acted with malicious maliciously  cause harm or in a good faith effort to maintain order what if there were a written policy or just a custom in practice to use force on entry of every blind or disabled person why would you need any inquiry at all into individual conduct that would be a classic case of a policy just looking at the divine its conduct your honor if there was a written policy and a practice of when a disabled and may comes in and then officers then are supposed to use force against them automatically for no reason but that would be a case that would be a different case than what we have here with the amended complaint paragraph thirty three to forty three and then the relief request urge that they say they were aware of excessive and acquiesce so they're alleging it arguably and therefore here's the question why don't the cases they cite the up third circuit green spring case the eleventh circuit bre ok say we don't decide this at this stage it's premature we just don't know if a policy like that that would allow focus just on the defendant's conduct only for injunctive relief in which case i think you're just agreeing with me it would be appropriate to recognize associates instead we don't know that respectfully i disagree with but you did just say if there were a policy where you only looked at the defendant's conduct as that was the second they arrived here you shackled them or whatever you just said that would be a different case you might have association standing your out of this case is different from the eleventh circuit cases because of the standard in the inquiry that this court that requires requires itself to look at when you consider an association  conduct only they've got a policy i understood you to answer and it's my view of the law to the association's standing would be appropriate if they're just saying stop that looking forward my question to you is looking at the eleventh circuit and especially the third circuit green spring we just don't know that so the case law is saying don't make these decisions denying standing at the front end before they have discovery about what the character of the use of force violations your honor we do have that evidence page eighty one of the record in the amended complaint it's the four examples provided by the prison justice league when the present justice league asserts that a representative sample might be used in this case instead of individual participation of each of the members if you look at those four examples to our diminished uses of force and none of these cases do we know who the officers were who allegedly used excessive force we don't know the reason force was used we have no idea about the relationship between the force used and the reason for using force and we have absolutely no insight into the subject of intent of those officers we don't know whether or not they acted in the licious lee and sadistically soley to cause harm or whether they had a good faith belief what do we do two pages later in the complaint bold heading t d c j leadership is aware still having to assess these underlying excessive use of force claims as the blighting versus miscues e case that the appellate psych that says in order to find that there has been deliberate indifference you have to first establish that there has been an underlying constitutional violation and we can't and the appellant in the plainest the trial court cannot prove the underlying constitutional violation on one hundred plus members of the prison justice league in order own have to have testimony from individuals and i don't know how you prove those things your honor it we would have to have testimony from individuals who would have to have participation of those members because these are very if you for of the case so that you don't run into that problem because you can't bar these prisoners from testifying if we if this case were to go forward but then we would be putting the district court in the position of having to try these individual cases under the guise of an association a standing case where there is or is not such a pull no your honor not in this case because it would require that individualized proof the better it is at this early stage i mean obviously the complaint is laced through also with grievances are concerned and we're not saying that in this case we would have to look and see whether or not each and every one of the inmates who is part of the prison justice league exhausted those administrative remedies that's not a consideration that has to be made and an excessive use of force case but we don't even get to the retaliation claims because the underlying claim here the basis for this litigation is that excessive use of force claim and there is no way to craft release that is consistent with the prison litigation reform what's what's what gets you in that particular unit you're out of there is and the assignment to a unit is somewhat random and depending on where this seems to be a distinctive unit who goes into the a still unit there are they do have a more advanced medical unit so there are some older patients some disabled patients it's not entirely it's not considered a geriatric prison it's considered to be an advanced medical you know if you're blind do go into that unit you might go to that unit yes  and but in this case we don't know whether this injunction would just be for the one hundred members who are alleged by the prison justice league to have these disabilities or whether it would apply to the prison as a whole because that unclear from the amended complaint what relief is actually requested and consistent to be consistent with the p l o or any of the prison litigation reform act really it has to be narrowly tailored and no injunction could issue in this case that would be narrowly tailored the issues that each of these inmates is asserting underlying these claims there is no way to redress these uses of force with each particular inmate an injunction would simply restate the eighth amendment constitutional law t c t v c j policy that excessive use of force is unconstitutional which would effectively do nothing to redress these prisoners needs if they do so in fact exist and that is why when we look at the relief requested in this case it would also require individualized proof in a fact specific inquiry you would have to look at which officers were asserting force over which inmates and whether or not maybe a narrow injunction against one officer when it comes to one inmate would redress that problem because of this individual is proof that is required to prove the claims asserted in the relief requested the prison justice league does not have standing to bring these claims on behalf of its members and that's why this court should affirm the ruling of the district court international which is also cited in the briefing it's a second circuit case the phrase is depleted and redundant is a case in which the court was looking at whether a policy requiring non profits receiving certain federal funds would be required to adopt a killer policy with regard to anti prostitution and the factual question was whether these individual non profits had adequate alternative channels for protected expression quickly become depleted and redundant the critical thing in that case was at the critical facts were demonstrated by looking to the defendant's conduct so i mean looking at that delineation i think it's important not to lose sight of that component your honor to your point i agree well my position would be exactly what you articulated that at this point it's premature to say that there is not a practice of using force that is so obvious and systemic in the greta's if you ever  alleging your complaint a systemic policy denying medical care you even used the phrase deliberate indifference anywhere in the complaint certainly not medical care abuse use the did you even use the phrase deliberate indifferen i honestly don't recall i believe that with when i look at the end especially your it's very particular as john doe request the court and join them for returning him to the a still unit even as to injunctive relief that's his situation i mean i think i think we've discussed a lot and if if you were to have alleged systemic violations with a policy in the custom in practice denying medical care or upon entry then associates standing seems fairly compelling maybe opposing counsel seem to muddy the distinction between their claim for a true spec world here and i would argue that the appropriate course of action would be to look at the allegations when you look at the actual pleading notice standard coupled with the briefing that has been presented to th inevitable amended complaint excluding the individual claims of mr doe it may be that at that juncture the claims would be vulnerable to told the six motion i don't believe that they would be procedurally that be the case on today