help me to understand what in the world happened here before the district court if anything between the time the complaint was filed in the time the  wasn't a rule sixteen conference because that's something that typically the court schedules and in my experience typically the court schedules that after there's an answer to the complaint and there was not an answer to the complaint filed over the years and we would what strikes me is that even though roe sixteen conference wasn't required certainly no answer filed here because what your adversary filed was an alternative motion as i understand  that i would have expected that once there's a request for discovery there would have been some activity at the district court him to address that request whether it was in the form of a conference or  a conference call or an order establishing some discovery schedule he anything happened here during that gap of time from eight thirty of eleven when i think your complaint was filed briefed and then in response to the motion for summary judgment we did file our will fifty six affidavit explaining the discovery that we plan to take it was it was essentially our document request correct and how much time had left when you followed your move a few things out of the even the complaint was filed at the end of august it took us a while to obtain service over the defendants and it took some period of time i believe it was early november before the department of justice agreed to accept service on behalf of some of it did they agree with civil service rules or wherever it was they agreed to accept service ok and then you move for a class or december nine eleven right and then the motion to dismiss or for summary judgment was filed in february and two thousand correct so there's no discovery takes place at all and the discovery really can't take place because you've got no discovery order having been so that correct i mean that was part of our concern about taking discovery was that i mean there were several concerns about taking  one of my law clerks noted earlier in our work on this case that the district court docket notes it as a pro se case despite the eventual  case so i wonder if there was some confusion i have had a look at the district court docket but it has this particular case i do not believe has ever been pro se we drafted and find we couldn't put i have some clarification to it to the language you've been asked about and you procedural posture defendants have immediately moved for summary judgment relief pursuant to rule fifty six before any discovery has taken place for instance mr shelton has not had the opportunity to take the depositions of persons involved in sell a sign mont generally or mr shelton cell assignment in particular and it goes on to explain that state of mind is an important issue in these cases and that we would like discovery on that and and we have four pages of detailed types of discovery document requests we would like to have people we would like to depose we're in a situation here where obviously you don't like to take depositions before you've gotten documents and under the rules were only documents in our hands before we can do that on the quest was the request for classification was denied along with the dismissal at the same day that the class was denied and then the claims were dismissed i believe was the order in which it occurred yes so to go back to a couple of the questions that have been asked why we didn't take discovery one is that there had not been a rule sixteen conference there had not been it fair to characterize this record as one in which the district court completely ignored your the curation seeking  disco that is certainly our position there is not a word in the district court's decision and went on to grant some judges correct and under the abington friends decision from this court we believe was an abuse of discretion i think the words that the abington friend's case used as it was improper but clearly the addington friend's case i think is most like our situations there's a suggestion from the other side that you should have filed  is there any regarding you know i think that it when you read these cases sometimes parties do file a motion so sometimes they follow all that require the rule does not require it but i think that's where some of the language in the district court misunderstood that either the nature of the relief you are seeking is in the class action purview complaint or misunderstood the class you are trying to get certified or both i think the court i don't know which what i consider some perhaps errors by the district court or at least some matters overlooked with respect to class certification here the district cite our marcus decision which had actually come down about two months before the decision i'm not sure though i i i have been concerned about hearing from both sides on the class sort of education issue because this court injury from policy and question on the case law i think is abundantly clear to get into your honour's question about ascertain ability that in a b two case there are murmurings they weren't holdings they and baby neal as off cited as it is may be subject to some question in the wake of what commonality but it does have some discussion about ascertain ability and references rule b two and says it's often applied to cases where classes are not ascertainable and there are more fests and in that particular case like our case they were seeking a class that was as defined well not like in prison conditions of confinement case all prisoners that i think it was greater for in that particular case i think the difference between the three and b two classes to get to the bottom of it is that in be two cases you really are looking at common conduct applied to the class as a whole the walmart decision talks about whether an indivisible injunction will provide relief to all the class so firm issue for why you need an ascertainable class and b three is the fact that b three actually has a common issues predominate requirement isn't it quite conceivable that you could have a obviously it's hard for me to imagine the numerosity would not be met in your case but act but speaking hypothetically absolutely you have b two cases that challenge for example handicap access and have you know you might say the supermarket counter at line is too high for people on hand and wheelchair so would you say that the very nature of the numerosity requirement under anyone suggests that ascertain ability may in appropriate cases be a concept it's applicable to be to action absolutely there are be two actions as wal mart recognizes they say you've got to keep them small and closely cabined but there are be two counsel that we need to keep those cases closely confined because of the two doesn't have a notice in an opt out provision is which is a big reason counsel for the plaintiffs in that case chose work in our courts across the country hedge drug right so when you have a small workplace with twenty people it might work but when you have one and a half million it's a different animal so so i hope incidents that happened and the answer to that is yes do they do they do they categorize what those incidents are for no why are they fighting they don't categorize those but they do they they know the him were issued meaning so let's take if so if there's a fight i mean i can and there's certain mine in a certain i believe that there are categories by month but i'm not i'm not sure they have to report those incidents there's a five eighty three and a five eighty six that they report one five a day five eighty three these are a report of incident when an incident actually happens and the panic and the penitentiary and a five eighty six is an after action review what they what the also isolate any incident reports that have to do with violence involving a particular inmate right like mr shelton i think so isn't that  in their actual class definition is the policy the policy itself again that's let's peel the onion here what do they say in their complaint about a policy who initiated this policy where this policy come from i can tell that response should not be made until there's a lieutenant there seems to be some says is there such a problem there seems to be some subclasses of what they're arguing they argue that that's not an answer to my question is there such a policy no no there is no policy there the complaint and paragraph one twenty five is the only place where you find a policy and they say kane norwood blood so young we are aware based on positioning grievances that is the extent of a policy where else in the complaint do they say a policy proceeding where they ask you do you feel that you are in danger in any way in this and then they have records from the court the district court will provide information about who testified against that that inmate if that image testifies about somebody else and they have a procedure called that site c i am the same procedure were you look at the separate t s of the m e doesn't the very fact of our discussion here relative to the existence vel known of certain policies point to the need for discovery in this case you're going to that that's nicole problem what we have is a conclusion reallocation and we're trying to make a careful case management approach it it's him actually it paul was even more better sort of facts in it but they said the director of the of the f b i and the attorney general made a policy here they didn't even say that anybody made a promise in can you justify pursuing a different avenue the fact that the district court appears to have completely ignored the declaration of a request for discovery i don't know whether or not they can order it your honor or they we know didn't district court ever do anything of record to even the knowledge metaphysically the existence of the declaration that was filed other than discrediting it as part of a summary judgment i don't know what the dis zero there that if that's what those cases say this court has adopted a kind of supervisory rule that goes beyond fifty six d and requires the filing of a motion because i see nothing at all in fifty six the that says a motion i completely agree with ron and as if i am i understand your argument from the brief correctly your suggestion was that a motion for stay should a motion for stay or discovery move for discovery if you hear it i read motion for stay but in any event i thought of but i think it's either or i think if you need discovery you move for it but but really what's important here is is that that rule fifty sixty says what's wasn't and so why didn't mr shelton file an affidavit or declaration saying i did exhaust he didn't it's unavailable they need to show to this court that they didn't have the proper means to respond to our motion supposed to have come up with they could have responded to the to the pledge fight so you don't think that by the way i know there was like there was a fight but i made the allegation that they didn't they didn't go in all six of them to go and we presented evidence that and in response to that motion which included a statement of material facts and what you referred to the point here wanted some discovery and made a specific request with declaration they they they did so you would do certain facts that kind of facts that in the ordinary course might be subject to discovery which didn't occur well they had the ability it's if the rule is is it unavailable to the plaintiff or the nonmoving and they had the ability to present evidence they didn't tell the court how came how did what i thought were a declaration of state a declaration a declaration from even that aside you suggesting that the information they wanted they had the ability to get without going to discovery is that what you're well how many people are in this room do we need someone to to discover that they can have an  declaration saying there were six people i know we could take you dish will notice of that that i don't think that's the point but but the six people that were outside his cell where is the declaration that says there were six people outside his cell that depth there you'd have provided declarations telling a policy that when and in is transferred to the penitentiary and they should not be cells w there no is there a there's a policy is there a policy against selling to prisoners together who actually have a history of violence absolutely absolutely but you to look at what they're asking for is not ascertain ability applies and then we got twenty seconds have no that's right and this is you run at a time i can ascertain ability whether or not at the plies to injunctions absolutely and no one's talking about this yet well then you both agree i agree to be two in particular because as defendant you have a due process right to know what you're supposed to enjoy you have to look at this and look at the back end of this so if you if the condition a court ordered an injunction and said you can no longer sell cellmates with sell hostile images together that's their issue and there is no part of that that's somehow used we are yes now there's no war there's no there's no regulation there's nothing that says that you should not sell statement of facts and apparently some additional submission what if your honor looks at the order and looks at our argument and looks at they're going to break we'll i've done a lot of look at what we know we argued that the underlying claim doesn't have any staff of the prison to be hostile would that be something that on its face and how i would suggest that there may be a problem and if it does wouldn't it be true that everyone who would be subject to be how was in the look don't put me with shelton so they said don't put me with a car and he's going to be a problem so they're alleging and you know the prison knew it but despite that they combined them and they're going further and saying that if inma one was whether or not it's unknown so the known is in the actual class itself so so yours you're seeing that that the defendants know that's not where they are with not the class that's the the conduct if anyone is in the prison they would be if problem that's different because all you're asking for is an injunction against enforcing this pattern in practice a policy that asking for a dollar damages that gets into a war problem that might be seventy three and then you've got  case they're not asking for it but but my my problem as i keep coming back is if you issue an order like that the defendants have to like what that that says you cannot sell inmates together that are no so did  like yeah what's wrong and marcus and marcus where you say hey tell me if you have these run flat tires the courts not relying on the class members you have to rely on objective evidence and the defendant's what between these two guys if there's a pipeline there there is a separation policy between that that you will be separated but but there are occasions they're alleging that your policy is such that you will threaten you put those two work together anyhow and if they don't go along with the i think it's broader than that i think it's there there ar for instance they say hey we're friends now we put them together or we say we take proper precautions we're going to do things to prevent this rest that's what deliberate indifference is about if we took those defenses so you would have to apply that to every single case made clear my my doubts about the extent of the process that took place with respect to the alternative motions that you filed but let's talk about the classroom of a cation motion regard to class certification and one thing we know is there was no discovery right absolutely no discovery in addition to that was there any kind of eviden there was no request and that's enough is there have to be requests now but that doesn't have to be in evidence you're hearing either well i suggest that you give a real careful read to hydrogen peroxide ok and it's progeny and get a handle on the degree and nature of process that is now required in this circuit than many others with respect to certification because they're no longer is a mere complaint going to be enough in most cases and what i know here is there was no discovery no hearing was there any were argument on the class certification no motion there was no reference to marcus by the district court peroxide calls upon a district court to make a record which will probably include findings of fact in many or least most instances so i'm i would ask you if you can defend in any way putting aside the motion to dismiss an alternative fifty six motion the lack of process that took place here with respect what you're a judge miriam looked at the definition of the class and he looked at the definition the class and that was it and when he looked at the definition the class he didn't find it was ascertainable and that was it we should if the judge found that that the class was ascertainable should there have been more probably but what do you look at the complaint in your submission he looked at the there the information that i didn't provide to the plaintiffs they and they and they and they attach some sort of an article from a newspaper that cites the lucifer prison project which is a prisoner advocacy that was all they presented to the court to show that they had a proper class all persons who are currently or will be  inmates together in cells or recreation cages in failing to take a reasonable extent of the so that that definition incorporates the actual policy which doesn't exist and if you look at the complaints are you there's the sales duration of the class is the same as the definition of the last i'm not sure that's accurate ration is just a portion of class definition it's a part of the definition yes and if so what's wrong with this part which part do you want about that hospital i m but we don't think there's a written policy that says sell hostile with it so we have a practice it's a pattern or practice and that's the fact that is how our complaint in the very first paragraph characterized is that a pattern practice or policy whether that gets shortened at some point in the policy or pattern or practice i don't know but you never really i mean wait wait yes how do you know on what basis do you say that there's a  practice of that as we say that on the basis of what happened to our client and conjunction with our class certification papers what happened with mr richardson on the three occasions that he declined a hostile and mate and was placed in four point restraints are not for point but placed in hard restraints and ultimately at some point in four point restraint we have not spoken with the prison about this so you never asked the prisoner through iraq a tory or some other form whether this is the pattern or practice of the penitentiary if your question is have we had discovery no we haven't we have not had any conversations either through discovery or informally outside the bounds of discovery to talk with them about the situation at louisburg with respect to selling with respect to sell assignments is there anything writ are various regulations i don't think any of them really help us out here and and one of the things i i guess i would like to point out is there's been a lot of talk about you know how could we enforce an injunction it would be all this individual stuff about what the basis was for that inmate selling with that inmate and let and that i just wanna find out from what source do case that comes from what mr shelton has told us happened to him and more broadly the parts that are also in the record or what happened with mr richardson and what happened with mr wiggins and so that's really where it comes from and i think ultimately what we'd like to that possibly what we'd like to see i mean we really do need discovery and your honour's see the difficulty we have an understanding policy of no policy you know number of incidents no number of incidents like  think the quaid hearing but the but the point is that when mr shelton was put in the cell with mr graham back in august of two thousand and nine he got beat up ok he said don't put me in there they put him in there he got beaten up in november the same thing happens only not only does mr shelton say don't put me in there but the inmate says don't put him in here with me you've got a track record you know he was right last time he gets put in there and he gets beaten up there's apparently no policy or procedure for guards at that point to figure out how to evaluate that sort of situation he grieved who i guess two thousand and nine  selling and being beaten up that there's just there's apparently no procedure in place perhaps no policy in place for evaluating those kinds of threats how does this work somebody says ok lewisburg what happens as soon as they get there is there some i mean cells i mean that's far live well again that's something i mean i think we need a lot of discovery to understand that what we know what our client have stold us about the quaid hearing and about the central and made monitoring system that does list some information on the thanks to the folks back in your firm who are allowing you to take this time and take this case pro bono there are so many cases where we really need this kind of high quality counsel to intervene and we'd all be in a world of rid of we didn't have the good faith