this case about something that simply is not well that the case turns very much on on a chronology here and i'm not unfamiliar with class action cases but i i must admit i've never seen anything certification on by the representative point absolutely or as noted even briefs the case of shelton and richardson are essentially the same class action just brought by two different plaintiffs by counsel from the outset counsel's intense in these cases was to file each point this case as soon as they were legally able to by exhausting administrate of remedies to protect their claims before they were transferred out of lewisburg sultan piled his case as soon as mr richardson who pleaded his grievance as he filed his case less than three months later the motion to consolidation was filed and shelton plaintiffs had no reason to believe that that motion would not be granted as it was about the same  however it included sections certification for lack of a better expression is where it sat i mean ninety percent of what is involved in a class action anymore takes place if the class action stay if the certification stage it's where there is now considerable discovery it's really are now various issues are resolved completely separate from the merits to put it to put it very briefly it is a critical phase in court recognizes she and the process has changed over the last thirty years profoundly in that direction so it's a highly unusual set of procedural facts that confront us where we haven't actually seen a motion for a class or vacation so i mean isn't isn't the critical inquiry here who are you of relation back and to what date we can relate back mr richardson's actual claim for service relation back to certainly he questioned however this case also filed a complaint which plainly raised class certification and class status there's never a question in this case that what he socked to do was be a representative point and a class act right i mean everybody knew that so so can we look to the complaint as being the critical date and if that's and if that's the case you've got no problem you don't have to look it capable of repetition right i mean you've got a relation back back well before he was transferred i think it's perfectly reasonable to look back to the filing of the complaint is as your honor mentioned it was clear from the complaint you were let me ask you a practical question why should we have these two cases going on i mean shouldn't regardless of our just position here shouldn't richardson be joined with shelton or is that impractical for some reason richardson should not he accepted the placement of volatile and hot violent inmates some meets with him in a cell and was ultimately subjected to assaults by those inmates whereas mr richardson rejected that placement and as punishment for rejecting some something else out now absolutely every man's and having these two cases consolidated would simplify the entire process of this litigation which at this point has gone on for over five years with defendants dragging their feet not at this point it's been a year and a half since shelton was the individuals who actually were holding these positions at the prison where this s m u was located right lewisburg yes i believe we received twenty ha that indicated there were no longer any of the in their official capacity and under the federal rules of civil procedure substitution of official capacity defendants binns automatic and correct me if i'm wrong but i mean what your theory  allegations suggest here is not that these individual defendants these individuals were perpetrating actions that were violative of the eighth amendment book but rather that an official policy existed at this institution which was actually inconsistent with the written policy or with the formal policy shouldn't pay is that correct and that's the the policy you afeard to put in meets in these horrible situations where they have to make this the strace or it's simply a complete lack of policy regarding the fact that the prison officials need to make a more assertive in for a into whether or not some ways are going to be violent towards each other and to take into account when one somebody to send in their begging a corrections officer please do not put him in here with me he will try to kill me yesterday they covered a four year period maybe i believe so and when i figured it out it was less than one assaulted of  over the statistic you gave us and just into those numbers the policy is not just the number of assaults between cellmates but there are a high number of individuals who choose that they would and would rather project a hostile placement and then be subjected to punitive restraints so the number of assaults is lower than it could be because you have inmates like mr richardson who objected and said no i will not take that placement i will not cough up because i'm afraid for my what are we doing here why is it not there are three reasons to continue to have both of these individuals as named representatives for this class the first is that it is the plaintiff's choice to choose who represents their class and not the defendant option to move out everyone and pick off the central plains secondly because of how long this case has lingered we have yet to proceed to discovery or to have motions on the issue of exhaustion and grievances and it's entirely possible that in that realm a court could decide that mr sebastian by mr shelton had not fully exhausted his administrative remedies at which point having a second named representative who has vacation would deem some classes necessary and in the event that some classes were necessary you would need a representative plaintiff from both well we are we really in the position to consider a consolidation before the district district judge improvidently applying ascertain ability and our panel said so and we sent it back but the court would still then have to go through all the hoops required for a class or patient and the fact that there are some points in one case the don't exist in another case make impact on issues at least of certainly not but at least issues of commonality issues predominance so seems to me there's a lot of work for the district who are yet to do if this goes back to him to revisit disagreeing with you but what i'm suggesting is that then what you may have certainly been a one two three and four the that leaves school which is adequacy and there ma definitely be some question as to who ought to be the representative point if for example if mr shelton were to continue to be at the s and you were in lewisburg he may be a much more appropriate class representative than is mr richardson who's no longer at the right and that could be the case what i'm suggesting is there are reasons for having the district court consider these two cases and put to a district were and if there is any area where we have huge discretion to a trial it's in a class action here we have a district judge here who said that the p discussing this and garrity and so some are discussing how a class action becomes a legal status in of of itself so the class action whether or not you look at see the class action becomes moot you determine whether or not it is it is become it legal entity and to do that they have to move to certify it to move to certify the court then has to certify the class the court did not certify a class here if i would be nice for it if it essentially did not  dismiss the class action complaint had they had the class action claim and the idea that they were waiting to certify this class based on what mr shelton did i don't think we can look at that because we don't know what richardson was thinking at the time i and so he didn't rely on shelton so what they're arguing is that they're relying on shelton for this consolidation motion so they're relying on his certification most in their consolidation motions so they rely on the certification of mr shelton so it's an opposite what is it richardson is going not even close to the end of the ninety day period you follow a motion to dismiss which is proper and not motion to dismiss argues that richardson failed to make the requisite showing of numerosity commonality and typicality and to look that up so if you think he's trying to bring a class action and you're explaining to the district court why he has not satisfied the requirements of a class action how could it be wrong for the district court to infer that he was pursuing a class well i think i think the court can look at the allegations themselves that i don't know that there was there was mis there was mistakes made by the district court as ascertain ability it was a conspiracy of ignorance including yourself the plaintiff's counsel and the judge court dismissed the case based on the court's ruling and shelter but i thought well you can see to that as as as was proper i mean the case has to go back for that reason right so why should we focus now on what should happen on remand should we would that be fruitful court dismissed the action on april ninth two thousand and thirteen because that's the date to relate back to a time he was still incarcerated in the s m u right no i think it has to relate back to the time the court makes its decision and gary i think  at a time during the time that the court was considering a motion to dismiss it was never a class action certification filed in that time never but what's the problem though for you here you're going to have to defend a class action i that the so why why don't the two cases just be put in from the same judge in the arguments can be made by the lawyers and it is that i guess what i'm suggesting is is there not a practical solution here that is that both sides might be amenable to i would disagree on because right now he has no jurisdiction to present his claim when you agree that it is much more efficient for you at least and for the courts to have one class action instead of two to deal with irrespective of whether you've got to move this issue assuming for purposes that there's there's jurisdiction in both cases one class action yes that would be well there may not be any jurisdiction left if you eventually prevail on move some time about right now sending this case back so a district judge can do as district judges do every day in this country who twenty three matters manage it appropriately and it would seem to me anyway and maybe my colleagues see it this way as well that we have two very similar if not identical actions putting aside the statutory claims in chelton which are not subject to sort of occasion and the judge ought to and i'll say maybe you are but it's not our place it's the district judges place to make the decision right i don't think so i think he hasn't already done so you can make that decision now i think like when you you could make a decision that remember you're on the relation back but you may not you may not have the votes on that i've heard well what about what about the idea that there are four individuals who they claim injunctive relief against who are no longer there they're claiming that there is this safety thirty six young hudson despite their knowledge to maintain a practice of intentionally selling hostile inmates together i could go on so what they're saying is that these correctional officers these prison officials had this  lewisburg policy and putting two hostile inmates to get whatever hostile means together they're not there so you can't say that the person who's going to substitute in is now going to be doing that illegal practice without any more so you make that argument to the fact finder has to do that the complaint has to provide a complaint has suggested that this is a systematic thing irrespective of the personnel who were actually executed i respectfully disagree i think what the complaint says is that there was a practice by the say there's no jurisdiction then you've got new people in place and then richardson falls or or some other person housed there files a new complaint against the new officials and then you start all over again and litigate whether these new officials allegations because he's not in this room allegations yes but we know from your food word that a class representative may still pursue on appeal the interests of the class notwithstanding the fact that the in the representative no longer be required so i mean i i'm having a difficult time getting your point as a practical matter it is where there are ongoing practices were violations alleged violations of policies not difficult to obtain a class representative to pursue the action or continue everybody knows class actions know that there really are gripping cases almost totally right let's look at parity garrity made a decision that you relate it back to the time that the procedural error occurred and if that is when you look at the procedural error and if there was standing at that procedural error there is standing to pursue that case you look if you say there's a procedural error that happened on april nineteenth twenty third twenty twelfth i'm sorry twenty thirteen and if you say her classification they're looking for now it might not be in the room but the courts have said we're looking for much for classification we're looking for when that legal status happens they were treated as a class action case just like you did we move to dismi it now you move to dismiss what you viewed as a class action and the district court treatises treated it as such so as i understand it what you're left with arguing is that the technicality of not filing a formal motion which as judge smith has already pointed out is not even required under the federal rules is fatal to their case well you know i have i summed up your argument correct you know i have to look at my motion in our brief but i don't believe that we treated it as if there was a certification of this class action i think what we did was we looked at the allegations in the complaint the entire complaint and we moved to dismiss the entire complaint we did look at it as if this status has become its own legal entity think we can look at the complaint i mean the motion but i i thought you were challenging numerosity commonality typicality you would agree those are all class action prerequisites they are and i believe that you  well if you raise them in defense it stands to reason that they put you on notice that that richardson was pursuing that you would not just invented that sue a sponsor well we but but again the factual allegations in the in the complaint we're not discussing the evidence they presented we're looking at we're looking at how they raising the money raising the issues that they're able to allege certain things in the complaint and i think that i'll go to your belief your point heading says the court should dismiss the class action claims the claims that are in the complaint class action claims that or are you now saying that you did i think the courts require a motion i think the courts have interpretive rule twenty three to require a motion for classification i think when you look at when you look at gary you look at the the stages of a class action is filing of them in the complaint it's the most assuredly happened that way one final point regarding some of the comments made by my colleague is that he says that weiss and relating back to the complaint was not appropriate here because weiss was a special circumstance involving the picking off  situations where the plaintiff has the opportunity to reject the offer and mean and continue to be a representative mr richardson and mr shelton do not have that option the federal bureau of prisons chooses to move them out of the institution and there's nothing they can do about it