permissive appeal from me district court's decision certifying a rule twenty three b three class of nearly ten thousand inmates in the illinois department of corrections use inmates were part of prison w searches that occurred in or different prisons over twenty nine different days in two thousand and fourteen although the plaintiffs sued approximately five hundred department employees they sought class certification against twenty two supervisors only they allege that these supervisors together planned and executed the shakedowns in a manner that but violated the class members th amendment rights the defendant tonight the shakedowns occurred as plaintiffs alleged which would have been contrary to the department's written policies and training the district court certified the class based at least in at least in part in the court's own words on plaintiff's allegations rather than on the evidence the court did not hold plaintiffs to their burden of presenting significant of their alleged policy and the court did not meaning consider whether even if licensed absolution proof of their policy resolving the question of whether plaintiffs policy existed would decide anything more than a very small part of the case the district court's case in that wal mart involved eighty centralise structure in which each supervisor had discretion as we apply the decision you are correct that in this case we need to spend and admit that there was a policy the problem for plaintiffs is that the policy that defendants at mit to is quite different from the policy that plaintiffs alleged was concocted and implemented and in that regard this case is very much white wal mart because in wal mart the defendants there admitted they had policies relating to the promotion and salaries of wal mart employees however what the plaintiffs were saying is that and what they were challenging is that the at wal mart the company had different policies they had underwritten policies that were discriminatory and what the supreme court said under those circumstances is that where a plaintiff is challenging a alleged policy by defendants that anything but our view is that this case is just like wal mart in that just as in wal mart there is an admission by defendants of a policy problem or plaintiffs criminality in our circumstances based on the testimony of a single inmate that he was subjected to and i'm constitutional shakedown and i think what it means that that was a result of a policy concocted at the present significant proof of that policy because otherwise there is simply no blue there is no policy or i've written practice can and so hold the class together white would it be sufficient here that is the defendants have conceded that the shakedowns and the policy about the shakedowns that was a uniform policy why wouldn't that be sufficient to establish commonality and the issues that you're raising precisely how that policy was executed why would that go to the merits as  it was followed the defendants deny that there was any policy of reverse flip searching the inmates the defendants deny that there was any policy of hand putting inmates in a way that was unconstitutionally to tight defendants deny that there was any policy of requiring the inmates to walk so closely together that one unit mates genitals touched another facts another is backside so the only agreement there is is that there was a policy question and what the uniformity has to go include some element of unconstitutionality as opposed to just doesn't understand my question i'm sorry i didn't so don't mind me saying i didn't read the record as saying that the defendants have conceded that the policy about the shakedowns that that policy was uniform right you're saying that yes it was but are description of uniform is different than the plaintiff's description of uniform and the play this description of what was uniform includes all of the alleged constitutional unconstitutional aspects of it so my question for you is does the common question and uniformity have to include the unconstitutional aspects here ok it's i guess i'd like to make two points st from the supervisors perspective the supervisors view was that there was a uniform way and we don't just the possibility that there may be instances in which an individual inmate was subjected to i'm constitutional behavior we just think that has to be resolved on an individualized see my time is short if i could just touch on predominance you know so i don't say that entirely into rubato you know even if this poor it thinks that there was significant group or there was no significant wireman this case still is not suitable are unsuccessful in proving their policy is that every class member will be able to bring its own is only an th amendment claim following the exact same theory i was subjected to an unconstitutional shakedown at the hands of these they just are or were to answer the policy question i'm going to if it were to answer it for plaintiffs individual questions would still predominate because no defendant could be held liable without answering some critical questions st which aspects of the shakedown what inmates objected to and nd in so far as the inmate was subjected to certain aspects are those aspects unconstitutional as to that in me and i'd like to provide a couple of examples just to illustrate these points st we know from even the limited sample of inmates that we have barely more than fifty percent said they were subjected to a reverse strip search so nearly half of them didn't complain about a rigorous trip search and in fact a meaningful percentage upwards of ten percent affirmatively said they were not reverse a decision for defendants on the policy question would absolve them from liability i don't think that's true for a couple of reasons the st reason is nineteen of them were actually present some of the shakedowns so they theoretically could still be hope liable list of how the policy question is answered and even so even if they were all absolved of liability that still would not a class member from bringing his own individual cla arguing based on the same evidence the inmates experience it was subjected to an unconstitutional shakedown at the hands of the tap two members and now i see my time is really short so the court doesn't mind i'll sit down for a case thank you by the defendants the parties further agree that the shakedowns occurred consistent with that plan which tightly controlled each aspect of the shakedown without any discretion whatsoever the defendants admit that in their brief before the district court record or ninety one page fourteen and there are several examples in the testimony of defendants themselves regarding those your honor sebastian questions of my friend on the other side regarding what close to the merits and what goes to the question of commonality and how wal mart plays into that in re all state accused decided last year this court said that  cases that have looked to see whether the evidence even when examining that evidence does go to the merits the inquiry in wal mart is whether that evidence was cohesive such that a question could be decided  for or against the party on a class white basis in this case that is present the parties admit there is a uniform plan they admit the shakedowns occurred consistent with that uniform plan and the disputes which both sides certainly hotly dispute the versions of what that plan can teams and its constitutionality that's a question for the merits but there is no dispute that the evidence is cohesive as to the class as a whole with regard to be used twenty two supervisory defendants and that the resolution of this case will result as a matter for all all class members whether that plan is as defend and whether that plan that was constitutional how does the fact that there are four different facilities involved here impact the analysis so the  fendants strenuously testified that the plan did not change between the facilities the defendants particularly defendant white and mcallister oversaw the shakedowns at the four facilities to ensure that the plan did not change and was not deviated from amongst those four facilities for in our view there is no difference between the fact that these occurred at four different facilities except in cafeteria whereas at lawrence it was the gym those minor variations i think both sides have have acknowledged are not material to the question of the contents of the plan or the constitutionality of the plan  and and i guess i would just say at most it just court had some concerns about the fact that these four different facilities might have need to have separate  treatments that's certainly quite an easy fix that the district court can make along the way our class representatives there are class representatives from each of those who are facilities and so to the extent that as the evidence comes in on the merits and there is some distinction between the four that that the court determines warrant separate trials that would it from my view that would be quite an easy fix the district court didn't i didn't really take on some of the predominant arguments here the district court's ruling on predominance was fairly short and didn't even talk about the elements of the we have said in the past that the evaluation predomina it was presented to it and so where a court comes you know addresses and is called on to recall a dispute that has nothing to do with rule twenty or rule twenty three the factors and instead only focus on the there was really no dispute about how those merits impacted impacted the case and i looking at the district court's decision and it does discuss what the claims are  that they what the general standards are doesn't go into the level of detail that certainly will be required at summary judgment but i think that's a result of the parties framing of their dispute and the court's correct determination that this was a dispute about the merits that made class certification entirely appropriate given the admissions by both sides i'm happy to talk about against these supervisory defendants are that they crafted a plan that was intended to humiliate and harass class members and cause them psychological pain and the reason that this proceeding will result will drive the litigation forward is that if class members if the jury ultimately finds four as a class members the no one can just view that there was a plan that intended to inflict psychological pain and was conducted for the purposes of harassment if on the other hand the jury finds that that was not the intent then despite the fact that there may be individual claims against individual tax officers that their particular shakedown nevertheless was humiliating and done in a way to humiliate it that they will not be able to rely on any allegations about the policy or plan and in fact the contrary and in both bell and in the courts discussion of belly dance all this court recognized that a resolution like that fits neatly within the reasons to certify and i think the court it's worth noting here i think two things st the court itself recognized the superiority and efficiency of class certification here there were twenty different lawsuits that were filed pro se by individual class members that were consolidated with this case and so the district court rightly recognized that there were lots of individuals individual trials that would be required on the same question with precisely the same evidence and that that itself was supportive of certification so that from the perspective of both sides this question could be answered once and for all rather than  trial after the other with the same evidence asking the same question and frankly in that sense defendant should welcome certification because in a proceeding like that each class member would get to try to prove their case and would only benefit if anyone before them had one and not suffer if any one before them had lost class certification in this case resolves that for all class members in a single proceeding and it's particularly an efficient way to do it given the amount of evidence that is in play that debt would be necessary to bring in result these claims if i'd like to address lose on against these supervisory officers on the question of whether or not the policy or agreed uniform shakedown was unconstitutional can they proceed against these particular officers individually so i think there is a theoretical possibility that a class member who alleges that someone on site saw their particular shakedown might be able to bring a claim against them for directly failing to intervene i think practically that is i think practically that's very unlikely to happen and that's on this case could say well my particular case this supervisory defendant saw me practically speaking the defendant's testimony is that they were present but were looking at a very high level rather than focusing on particular class members they were sort of surveying the room to ensure uniformity and legally that's not a problem as as the court recognized and fell in again and dance all because the evidence there would not be about a policy in fact to the contrary defendants would bring in their evidence that they you know know that we would not be able to dispute that the policy was sound it wouldn't be about the policy and it wouldn't be the no plane to put be able to bring in that circumstance about other people they would instead that only be able to provide evidence that about their particular shakedown experience and allegations about this defendant on site participation with respect to that so that's a very different situation that would involve very different evidence and be based on an entirely different legal theory which is precisely what this court recognized and bell as as being appropriate  for that or not there is no dispute that following the strip search all prisoners were ordered to put on what what's commonly referred to as their prison blues but were expressly forbidden from putting underwear on that is undisputed between the parties but not only is it undisputed it's undisputed that it occurred at all for facilities what is disputed but what both sides of three was uniform between the four facilities is plaintiff evidence demonstrates that they were then ordered to line up such that their genitals were forced to make contact with the prisoner in front of them and lie defendants dispute that with the plan for both sides agree that the line naked it's true that they weren't naked from plaintiff's perspective a jury could easily conclude that forcing prisoners to make contact such that their genitals made contact with the prisoner in front of them in line is i'm if i'm constitutional and it is intended to harass and humiliate class members notwithstanding that there is a thin layer of clothing that separates the actual genitals of the class member from the  to line up in that action but regardless the fact that it was uniform the fact that it was it was an aspect of the shakedown that provide should win because classes can lose as well as when it addresses whether a class may move forward as a unit and for that purpose the inquiry looks to the cohesiveness of the evidence not  they satisfied will twenty three they just are quite active in its discretion and we ask the court to affirm certification thank you ms great general notes will go back to you perino you your honor and i'd like to make just stage plaintiffs need some evidence of the unconstitutional aspects of the shakedown so here that would be the reverse trip searches for example the answer is yes and our view is that under wal mart they would need significant proof that  reverse scrip searches on the other unconstitutional aspects of the shakedown and they didn't have a cure for the reasons that we explained in our brief i'm predominates the point that i would like to make is that answering even if there is a  policy question here answering d that question is going to resolve only a very small part of this case week he disagree with the other side's edition that any individual claims would be on a completely different legal theory  maybe not the same theory which is that i was subjected to an unconstitutional shakedown and they would use the same evidence to get me to account of what happened which could be corroborated by other inmates accounts about what happened i was a little surprised to hear my opposing counsel say that what other inmates said would not be admissible i think it's actually rob orating evidence and i think you raise the elements judge see either it's a very important to look at the elements of an th amendment plain a policy is not an element of an th amendment claim there are two elements why is that there have been objects there have and objectively and reasonable contracts and the other is an intent to harass and humiliate i think when you look at the elements it's quite clear that because a