IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NORMAN SHELTON,

Plaintiff,

v.
THOMAS R. KANE, JOSEPH NORWOOD, BRIAN A. BLEDSOE, CHUCK MAIORANA, DARRELL YOUNG, KRISTA REAR, J. DUNKELBERGER, JOHN ADAMI, J. FOSNOT, F. PERRIN, S.V. HEATH, NELSON DREESE, CORRECTIONS OFFICERS WHITAKER,RAUP, ZELDER, WELLS, KULAGO, FISHER, MOFFIT, COMBE, JOHN DOE CORRECTIONS OFFICERS, EMT POTTER, AND THE UNITED STATES OF AMERICA through its department, THE FEDERAL BUREAU OF PRISONS

CIVIL ACTION Case No.:

Defendants.

COMPLAINT Under the Eighth Amendment to the United States Constitution, the Federal Tort Claims Act, and Federal Rule of Civil Procedure Rule 23, Plaintiff Norman Shelton brings this action for damages as well as injunctive and class action relief against the Defendants, complaining and alleging as follows:
I

Nature of the Case 1. This is an individual damage claim pursuant to Bivens v. Six Unknown Named Agents o/Federal Bureau o/Narcotics, 403 U.S. 388 (1971), against Defendants Bledsoe, Maiorana, Young, Rear, Dunkelberger, Adami, Fosnot, Perrin, Heath, Dreese, Whitaker, Raup, Zelder, Wells, Potter, Kulago, Fisher, Moffit, Combe, and John Doe Corrections Officers in their individual capacity; an individual damage claim against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2761 et seq.; and a class action claim pursuant to Eighth Amendment to United States Constitution and Federal Rule of Civil Procedure 23 against the Federal Bureau ofPrisons (BOP) and Defendants Kane, Norwood, Bledsoe, Young, and Rear in their official capacity. PlaintiffNorman Shelton brings the damages claims on his own behalf, and the claim for injunctive relief on behalf of all current and future prisoners at the Special Management Unit (SMU) ofthe United States Penitentiary at Lewisburg (USP Lewisburg) for the unconstitutional and unconscionable conditions of confinement that PlaintifIindividually, and all inmates collectively, must endure on a day-to-day basis.
Defendants, acting under color of federal law, engaged and continue to engage in a pattern, practice or policy of placing hostile inmates together in cells and/or recreation cages despite the serious risk that the hostile inmates will cause substantial material harm to each other. As part of this placement pattern, practice or policy,
2

Defendants punish inmates who complain about placements by putting them in restraints for hours at a time, sometimes as long as twenty-four (24) hours or more. These restraints significantly restrict an inmate's arm and leg motion, and in some cases, inmates are strapped to a bed with their limbs tied down in a brutal procedure known as four pointing. Furthermore, Defendants, again acting under color of federal law, engaged and continue to engage in a pattern, practice or policy of failing to intervene to prevent substantial material harm to inmates resulting from dangerous placements. There have been at least two inmate deaths at USP Lewisburg attributable to this systemic failure. Defendants have deprived and continue to deprive the members of the class of their constitutional right to be free from cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution. Ifappropriate injunctive relief is not granted, the harms suffered will be irreparable, may lead to death, and will continue for the foreseeable future.
Plaintiff personally endured all three categories ofthis conduct: (1) He has been beaten severely several times by cellmates with whom he had a documented hostile relationship; (2) he has suffered serious injury because officers failed to react timely to stop these assaults; and (3) he has been placed in restraints on multiple occasions as punishment for refusing dangerous cell assignments with hostile inmates. Plaintiff seeks compensatory and punitive damages on behalf of himself, as well as injunctive relief on behalf of all current and future USP Lewisburg inmates.
3

Jurisdiction and Venue 2. Plaintiff brings this action under the Eighth Amendment to the United States Constitution, Bivens v. Six Unknown Named Agents ofFederal Bureau ofNarcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. 3. This Court has subject matter jurisdiction over the claims presented herein pursuant to 28 U.S.C. §§ 1331, 1343, and 1346(b)(1). 4. Venue is appropriate in this district pursuant to 28 U.S.C. §§ 1391(b) and 1402 because this is the district in which Plaintiff's claims arose. 5. This Court has personal jurisdiction over each Defendant because it is believed that at all times relevant to this action all Defendants were employed in Lewisburg, Pennsylvania, and/or their acts and omissions caused the harm complained ofby Plaintiff in the Commonwealth ofPennsylvania.
Parties 6. Defendant Thomas R. Kane is the Acting Director of the BOP. Mr. Kane is being sued in his official capacity. 7. Defendant Joseph Norwood is the Regional Director ofthe Northeast Region for the BOP, which includes USP Lewisburg. Mr. Norwood is being sued in his official capacity. 8. Defendant Brian A. Bledsoe is the Warden ofUSP Lewisburg. He is responsible for overseeing and implementing inmate housing and recreation
4

placement decisions. Mr. Bledsoe is being sued in his individual capacity with respect to Plaintiff's damage claims and in his official capacity with respect to Plaintiff's injunctive relief claim. 9. Defendant Chuck Maiorana was at all times relevant to this action an Associate Warden at USP Lewisburg. Mr. Maiorana was partially responsible for inmate housing and recreation placement. Mr. Maiorana is being sued in his individual capacity. 10. Defendant Darrell Young is an Associate Warden at USP Lewisburg, and is partially responsible for inmate housing and recreation placement. Mr. Young is being sued in his individual capacity with respect to Plaintiff's damage claims and in his official capacity with respect to Plaintiff's injunctive relief claim. 11. Defendant Krista Rear is an Associate Warden at USP Lewisburg, and is partially responsible for inmate housing and recreation placement. Ms. Rear is being sued in her individual capacity with respect to Plaintiff's damage claims and in her official capacity with respect to Plaintiff's injunctive relief claim. 12. Defendant J. Dunkelberger is a Case Manager Coordinator at USP Lewisburg, and is partially responsible for inmate housing and recreation placement. Mr. Dunkelberger is being sued in his individual capacity. 13. Defendant John Adami is a Unit Manager at USP Lewisburg, and partially responsible for ensuring inmate safety at USP Lewisburg. Mr. Adami is also involved
5

in inmate housing and recreation placement. Mr. Adami is being sued in his individual capacity. 14. Defendant J. Fosnot is the Acting Captain of Security at USP Lewisburg. Mr. Fosnot is responsible in part for ensuring inmate safety and also for supervising Corrections Officers tasked with ensuring inmate safety. Mr. Fosnot is being sued in his individual capacity. 15. Defendant F. Perrin is a Corrections Officer at USP Lewisburg with the ranks of Lieutenant and Special Investigation Agent. Lieutenant Perrin is, in part, responsible for inmate housing and recreation placement. Mr. Perrin is being sued in his individual capacity. 16. Defendant S.V. Heath is a Corrections Officer at USP Lewisburg with the ranks of Lieutenant and Special Investigation Supervisor. Lieutenant Heath is, in part, responsible for inmate housing and recreation placement. Ms. Heath is being sued in her individual capacity. 17. Defendant Nelson Dreese is a Corrections Officer at USP Lewisburg with the ranks of Lieutenant and Special Investigation Supervisor. Lieutenant Dreese is, in part, responsible for inmate housing and recreation placement. Mr. Dreese is being sued in his individual capacity. 18. Defendant Whitaker is a Corrections Officer at USP Lewisburg. Mr. Whitaker is being sued in his individual capacity.
6

19. Defendant Raup is a Corrections Officer at USP Lewisburg. Mr. Raup is being sued in his individual capacity. 20. Defendant Zelder is a Corrections Officer at USP Lewisburg. Mr. Zelder is being sued in his individual capacity. 21. Defendant Wells is a Corrections Officer at USP Lewisburg. Mr. Wells is being sued in his individual capacity. 22. Defendant Kulago is a Corrections Officer at USP Lewisburg. Mr. Kulago is being sued in his individual capacity. 23. Defendant Fisher is a Corrections Officer at USP Lewisburg. Mr. Fisher is being sued in his individual capacity. 24. Defendant Moffit is a Corrections Officer at USP Lewisburg. Mr. Moffit is being sued in his individual capacity. 25. Defendant Combe is a Corrections Officer at USP Lewisburg. Mr. Combe is being sued in his individual capacity. 26. Defendants John Doe Corrections Officers were at all times relevant to this action Corrections Officers at USP Lewisburg. On information and belief, they were present on August 30 outside of Plaintiffs cell, and failed to intervene when Plaintiff was attacked by his cellmates. John Doe Corrections Officers are being sued in their respective individual capacities.
7

27. Defendants John Doe Corrections Officers were at all times relevant to this action Corrections Officers at USP Lewisburg. On information and belief, they were present on November 26,2009, and helped to force a hostile inmate into Plaintiff's cell. John Doe Corrections Officers are being sued in their respective individual capacities. 28. Defendant Potter is an Emergency Medical Technician at USP Lewisburg. Mr. Potter is being sued in his individual capacity. 29. Defendant the BOP is responsible for the safety of all inmates housed in any facility it operates. 30. Defendant the United States of America, pursuant to federal law, has mandated that its department, the BOP, have responsibility for the custody and care of federal inmates, including those at USP Lewisburg.
General Background on the USP Lewisburg Special Management Unit 31. In 2008, the BOP created a Special Management Unit ("SMU") at USP Lewisburg. 32. According to the SMU Program Statement, the SMU program is meant to serve inmates who present "unique security and management" concerns including inmates who "participated in or had a leadership role in geographical group/gang-related activity." U.S. Dept. of Justice, Program Statement: Special Management Units § 1. 33. Inmates within the federal correctional system are sent to the SMU because the SMU is designed to provide "greater management oftheir interaction to ensure the
8

safety, security, or orderly operation of the Bureau facilities, or protection of the public." Id. § 1. 34. The conditions of confinement at USP Lewisburg's SMU are to be "more restrictive than for the general population inmates ... as necessary to ensure the safety ofothers." Id. § 5. 35. The SMU cells are smaller than the standard United States Penitentiary cell because ofthe age of the facility. The amount of space available is further limited by the pattern, practice or policy of forcing SMU members to take cellmates. 36. Inmates are placed together in cells throughout their time at the SMU, regardless of an inmate's self-professed inability to get along with others. 37. In the first two levels of the program, SMU inmates are required to stay in their cells for 23 hours a day. 38. In the first two levels ofthe program, SMU inmates are usually offered one hour of "recreation" per day, five days per week, which consists of taking inmates from their cell and placing them in recreation "cages." 39. Many inmates choose not to go out oftheir cells to the recreation cages due to their fear of attack by a hostile inmate, and thus remain in their cells 24 hours a day. 40. These conditions place inmates with histories ofviolence and gang membership in close quarters for every hour ofevery day, leading to an obvious and pervasive threat ofviolence.
9

41. It is the responsibility of the BOP, the Northeast Regional Office of the BOP, and all officials and corrections officers at USP Lewisburg to ensure that this threat of violence does not become a reality.
A. Cell Assignment Procedure 42. Because of this known potential for inmate on inmate violence, upon entering the SMU program at USP Lewisburg, inmates participate in an intake interview with USP Lewisburg officials, often referred to as the "Quay" hearing. 43. One ofthe purposes of this interview is to gather information about the inmate so that prison officials can make safe and appropriate placement decisions for the inmate and avoid placing hostile inmates together. 44. At this intake interview, inmates disclose their separation needs and known enemies, including specific geographic groups or gangs with whom an inmate has problems. 45. Following the intake interview, the new inmate is given a cell block assignment, cell assignment, and recreation cage assignments. These placement decisions are determined in part by the Cell Assignment Committee (the Committee), with assistance from the Corrections Officers on each cell block. 46. Upon information and belief, at all times relevant to this case the Committee consisted of Defendants Bledsoe, Young, Rear, Dunkelberger, Adami, Fosnot, Perrin,
10

Heath, and Dreese. Upon information and belief, Defendant Maiorana was also a member of the Committee until he left USP Lewisburg in 2011. 47. Defendants Young and Rear are specifically tasked by the BOP's SMU Program Statement with inmate placement decisions: "[t]he Associate Warden is responsible for determining which inmates may be housed or participate in activities together, as necessary to protect the safety, security, and good order ofthe institution." U.S. Dept. of Justice, Program Statement 5217.01: Special Management Units § 6. 48. In making decisions on inmate placement, the Committee is required to consider inmate safety. 49. Therefore, the Committee is required to account for an inmate's particular need to be separated from other individuals or groups inside the prison who are hostile towards him. 50. Once settled at Lewisburg, inmates also frequently inform Corrections Officers orally or in writing of new inmate enemies, or geographic groups or gangs which they believe pose a substantial risk of material harm to them. 51. The USP Lewisburg Defendants are aware, by virtue oftheir experience and training and the history of violent attacks at the SMU, that placing hostile inmates in a cell or recreation cage together creates a substantial risk that the inmates will engage in violent conduct that can lead to injury or death.
11

52. Inmates are rotated to new cells every twenty-one (21) days. During this rotation, inmates sometimes receive new cellmates. Thus, the cell rotation policy renews the possibility that an inmate will be placed with a hostile cellmate who poses a substantial risk of harm to the inmate. 53. Many inmates have suffered violent physical harm at the hands of other inmates in cells and/or recreation cages. From 2008 until July 2011, there have been 272 reported incidents of inmate on inmate violence. 54. Inmates frequently inform Corrections Officers that a placement assignment is inappropriate because the prospective cellmate is hostile to the inmate and poses a substantial risk ofmaterial harm to the inmate. 55. These warnings are either ignored by the Corrections Officer or directly acknowledged and not acted upon. It is thus a pattern, practice or policy of Corrections Officers to force inmates to accept placements that Officers understand pose a substantial risk of material harm to inmates, and to reserve reassignment until after inmate-on-inmate violence actually takes place. 56. Upon information and belief, the Supervisors at USP Lewisburg, including Defendants Bledsoe, Young and Rear, either directly know and approve ofthe Corrections Officers' patterns, practices or policies, or are deliberately indifferent to the dangers created by the Corrections Officers through these patterns, practices or policies.
12

B. Failure to Intervene to Prevent Inmate on Inmate Violence 57. The danger created by assigning hostile inmates to the same cell or recreation cage is compounded by the fact that the USP Lewisburg Defendants have a pattern, practice or policy that Corrections Officers are not to enter cells or recreation cages to stop inmate on inmate attacks until the attack has concluded and the victim of the attack may have already sustained serious injury. 58. The risk that the victim inmate will suffer serious harm from the attack is readily apparent to the Corrections Officers in each and every one ofthese cases. In fact, two inmates have died at the hands ofhostile cellmates in the last two years. The USP Lewisburg Defendants have nonetheless adopted a pattern, practice or policy of failing to intervene to prevent harm in these circumstances.
C. Punitive Use of Restraints to Enforce Cell Assignments 59. Furthermore, to enforce the pattern, practice or policy ofplacing hostile inmates together, the USP Lewisburg staff engages in a pattern, practice or policy of coercing inmates who resist dangerous placements by placing them in punitive restraints. 60. The use of punitive restraints is in direct contravention to the BOP's policies on the use of restraints. According to the policy, restraints are only to be used to control an inmate who is a danger to government property, himself and/or others, and never as punishment. See U.S. Department of Justice, Program Statement: 5566.06 Use of Force and Application ofRestraints.
13

61. USP Lewisburg officials regularly put in restraints inmates who resist accepting a placement with a hostile inmate. These restraints include "four point restraints" (four-pointing), "black boxes," and/or "ambulatory restraints." 62. When an inmate at the SMU in USP Lewisburg resists a cell assignment, the usual procedure is that he is immediately brought to the shower area by six (6) officers. There, he is placed in ambulatory restraints and brought to a cell in the SMU specifically designated to house inmates in ambulatory restraints. The inmate may also later be placed in four point restraints. The inmate remains in that cell, restrained, for as long as USP Lewisburg officials choose, without any prior due process, until the prisoner takes a cellmate. 63. "Four pointing" involves placing an inmate on a bed frame. The inmate's hands are restrained separately overhead, attached by metal shackles to either the bed frame or to the wall behind the bed, while the inmate's legs are also separated and restrained by metal shackles to the foot of the bed frame. While in four-point restraints, the inmate's limbs are stretched out, and his ability to move is completely restricted. 64. A "black box" is another type of restraint. It is made of a plastic or rubber material that fuses the left and right handcufftogether to make them more restrictive than traditional handcuffs.
14

65. "Ambulatory restraints" are "hard" restraints. They consist of metal handcuffs, shackles and a belly chain. A belly chain is usually put around an inmate's waist. At USP Lewisburg, however, the practice is to put the belly chain farther up on the torso so that it is actually around the inmate's chest. The handcuffs are attached to the chain. The chain can be tightened, as can the handcuffs and shackles. The handcuffs prevent the inmate from moving his wrists. In addition, the inmate cannot move his hands up or down because the handcuffs are attached to the chest-high chain. The shackles prevent an inmate from climbing up to the top bunk of a cell, and severely limit an inmate's ability to walk. 66. Restraints are applied and maintained in an excessively tight manner, causing severe pain, swollen wrists and fingers, open wounds and possibly nerve damage. 67. Because an inmate's hands are cuffed together and secured tightly to the chest chain while he is in ambulatory restraints, eating, drinking and using the toilet is difficult, if not impossible. 68. Plaintiffwas unconstitutionally restrained on no less than four occasions for refusing to accept a cellmate whom Defendants knew presented a risk of substantial harm to Plaintiffs safety. 69. On March 9, April 12, June 10, and September 22 of201 0, USP Lewisburg Officials escorted Plaintiffto a cell containing an inmate hostile to Plaintiff. On each occasion, Plaintiffrefused to enter the cell, and informed the Officials that the cell
15

assignment posed a serious risk of substantial material harm because it was counter to Plaintiffs known and documented separation needs. 70. On March 9, April 12, and September 22, the Officials reacted by placing Plaintiff in ambulatory restraints. 71. Plaintiff remained in ambulatory restraints for 24 hours following the March 9 refusal. 72. Plaintiff remained in ambulatory restraints for five (5) consecutive days following the April 12 refusal. 73. Plaintiff remained in ambulatory restraints for three (3) consecutive days following the September 22 refusal. 74. On June 10, the Officials reacted to Plaintiff's refusal by placing Plaintiff in four-point restraints for two (2) consecutive days. 75. Due to these periods of restraint, Plaintiffhas permanent nerve damage in his wrists and scars to the skin around his stomach and lower back.
August 30, 2009 Cell Assignment 76. In 2005 and 2006, Plaintiff was incarcerated at USP Lewisburg. 77. During Plaintiffs time at USP Lewisburg in 2005 and 2006, Plaintiff repeatedly informed prison officials, including Defendant Heath, that he needed to be kept separate from gang members, as well as inmates from the Washington, D.C. area.
16

78. Plaintiff returned to USP Lewisburg to join the SMU program on or around August 27, 2009. 79. Upon his return, Plaintiff spoke with Defendant Heath in an intake interview. 80. Defendant Heath acknowledged during Plaintiffs intake interview that she remembered Plaintiff and his separation needs, and would ensure that USP Lewisburg addressed Plaintiffs safety needs. 81. Plaintiff is a Muslim. 82. Many gangs in the federal prison system systematically engage in violence against Muslims. This is common knowledge amongst both officers and inmates in the BOP system. 83. At Defendant Heath's instruction, Plaintiff filled out paperwork at his intake interview listing hostile inmates, and returned this paperwork to Heath. 84. At the intake interview in August 2009, Plaintiff informed Defendant Heath specifically of the risk ofviolence between gang members, including the "Bloods" and the "Crips," and Muslim inmates. 85. On or around August 27, 2009, the Committee ordered that Plaintiffbe moved into a cell with a known member of the "Bloods" gang named Graham. 86. Defendants Whitaker and Raup escorted Plaintiff to Graham's cell. 87. Both Plaintiff and Graham informed Whitaker and Raup that this cell pairing was dangerous, and would lead to violence. Specifically, Graham warned the Officers
17

that the gang member would attack Plaintiff. Plaintiff also informed the Officers that the assignment was counter to the separation needs he outlined at his intake interview. 88. Whitaker and Raup forced Plaintiff and Graham into the cell despite being informed of the danger, and despite the advanced warning given by Plaintiff. 89. From August 27 through August 30, Plaintiff repeatedly notified BOP staff of the danger posed by his cell assignment. 90. On August 30, 2009, Defendant Whitaker, Raup, Zelder, Wells, Potter and Heath came to the cell Plaintiff shared with Graham to initiate cell rotation. 91. To handcuff an inmate already in a cell, the officer instructs the inmate to place his hands through a small slot at the bottom of the cell door typically used to pass food trays. The slot is only big enough for one inmate to put his hands through at a time. 92. Defendants Whitaker, Raup, Zelder, Wells, Potter and Heath told both cellmates to "cuff up," and Plaintiff complied by bending down towards the slot first. Once Plaintiff was handcuffed, Graham attacked him by kicking and punching him in the face and the body. 93. Despite having sufficient time to intervene, Whitaker, Raup, Zelder, Wells, Potter, and Heath stood outside the cell and did nothing. Four John Doe Corrections Officers were also outside of Plaintiff's cell at this time, and also did nothing. During this time, Graham continued to punch and kick Plaintiff. Finally, one of the Defendants began shooting tear gas pellets into the cell.
18

94. Upon information and belief, it is an official policy ofUSP Lewisburg for Corrections Officers not to enter a cell unless both inmates are handcuffed, even when one ofthe cellmates is attacking another. 95. As a result of Graham's attack, Plaintiff sustained injuries to his eyes and mouth from the incident, including but not limited to: a split lip, injured nose, swollen eyes and several cuts on his face and arms. Plaintiff also suffered emotional and psychological injuries from the incident. 96. The officers refused to take Plaintiff for medical treatment after the attack. 97. Plaintiff was then brought to a cell that did not contain an inmate known to be hostile to Plaintiff. 98. Following the incident, Plaintiff filed grievances and again repeatedly informed the staff at USP Lewisburg of his need to be separated from gang members. 99. Plaintiff specifically provided Defendant Young with a list ofhis known enemies on no less than five (5) occasions between August 30,2009 and November 25,2009.
The November 26, 2009 Cell Assignment 100. On November 25, 2009, Plaintiff was housed in a cell by himselfat USP Lewisburg. 101. That day, the Committee assigned a known gang member named Carr to be Plaintiff's cellmate.
19

102. Because of Plaintiffs prior warnings to USP Lewisburg officials, his intake interview, and the August 30 incident, the Committee and Corrections Officers knew that placing Carr in Plaintiffs cell created a substantial risk ofmaterial harm to Plaintiff, or acted with deliberate indifference to the substantial risk. 103. Defendant Raup escorted Carr to Plaintiffs cell. 104. Plaintiff protested by explaining his separation needs to Raup, also informing Raup of Plaintiff's multiple appeals to Committee and the Corrections Officers in the cell block, including filing grievances over the August 30 incident with Defendants Warden Bledsoe and Regional Director Norwood. 105. Carr also protested the cell assignment, warning Raup that he would attack Plaintiff. 106. Raup told Plaintiffthat he would be placed in four point restraints ifhe did not consent to the cell pairing. 107. Raup also deliberately misled Plaintiff by insisting Mr. Carr was not a gang member, though Mr. Carr was known by both inmates and officers at the time to be a member of the "Crips" gang. 108. Raup placed Carr in Plaintiffs cell on November 25. 109. Defendant Zelder and two John Doe Corrections Officers helped Raup force Carr into Plaintiff's cell.
20

110. On the morning ofNovember 26, Defendant Fisher approached- Plaintiff's cell to collect food trays. 111. Besides Defendant Fisher, Defendants Raup, Kulago, Zelder, Moffit, and Combe were also present outside Plaintiff's cell at this time. 112. As Plaintiff bent down to give his tray to Fisher, Mr. Carr attacked Plaintiff from behind. 113. Mr. Carr repeatedly punched and kicked Plaintiff. 114. Defendants Fisher, Raup, Kulago, Zelder, Moffit, and Combe stood outside Plaintiff's cell and did nothing to stop the attack, despite their constitutional obligation to intervene to protect Plaintiff. 115. Plaintiff suffered injury from the attack, including cuts to his face, one of which left a visible scar above his eye, and a split lip. Plaintiff also suffered emotional and psychological injuries from the incident. 116. Despite multiple pleadings and requests, Defendants refused to take Plaintiff for medical treatment. 117. Plaintiff was then brought to a cell that did not contain an inmate known to be hostile to Plaintiff.
21

Class Action Allegations 118. Pursuant to Rule 23(a), 23(b){l) and 23(b)(2) ofthe Federal Rules of Civil Procedure, Plaintiffseeks relief on behalfof himself and a class of similarly situated individuals who are currently or will be imprisoned at the SMU at USP Lewisburg. 119. Plaintiff seeks to represent a class defined as follows:
All 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 ofpunitive restraints, and (2) failing to take any reasonable measures to protect the inmates from inmate-on-inmate violence by hostile inmates. 120. Because cell assignments are rotated periodically, and decisions about who should be placed in recreation cages together frequently change, every participant in the SMU program has been or is subject to the threat that he will be placed with a hostile inmate. Such placement creates a substantial risk that an inmate will be harmed at the hands of another inmate which cannot be avoided. 121. Because all cell assignments are enforced via the threat of restraints should an inmate resist, every participant in the SMU program has been or is subject to the threat
22

that restraints will be used against them punitively by USP Lewisburg officials or officers. 122. Because USP Lewisburg officials and officers react to incidents inside a cell or recreation cage under the same pattern, practice or policy of non-intervention until the incident is over, every participant in the SMU program has been or is subject to the threat that officers will fail to intervene should a serious risk of substantial material harm arise while an inmate is being attacked by another inmate in a cell or recreation cage. 123. Defendant USA, through the BOP, is responsible for inmate safety at all USP institutions, including USP Lewisburg. As such, the BOP is responsible for ensuring that the conditions of confinement in its facilities do not violate the Constitution. 124. Defendants Kane, Norwood, and Bledsoe are responsible for creating and implementing policy at the BOP Institutions under their control, including USP Lewisburg. As such, each Defendant has a responsibility to ensure that the conditions of confinement at USP Lewisburg do not violate the Constitution. 125. Defendants Kane, Norwood, Bledsoe, Young, and Rear were, at all times relevant to this complaint, aware ofthe conditions of confinement at USP Lewisburg by virtue of both the requirements oftheir positions and the inmate grievance process.
23

126. The inmate grievance policy requires that grievances be reviewed first by Bledsoe, and ifthe grievance is denied, the inmate must then grieve to Norwood, and finally to Kane. 127. Upon information and belief, hundreds of grievances have been filed in the last three years complaining ofthe conditions of confinement at USP Lewisburg, including Plaintiff's own grievances. 128. Defendant Bledsoe, as Warden ofUSP Lewisburg, is informed as a matter of course of any inmate being placed in restraints or instances of inmate on inmate violence. 129. Defendant Norwood is sent notice of every occasion an inmate is restrained for longer than eight (8) hours or there is an instance of inmate on inmate violence. 130. Defendants Bledsoe, Young, and Rear are also aware of the day-to-day problems and incidents related to inmate placement at USP Lewisburg by virtue of their membership on the Committee. This membership requires Defendants Bledsoe, Young, and Rear to consider the past instances of inmate on inmate violence, placement refusals by inmates, and the resulting use ofrestraints when making placement decisions. 131. The members ofthis Class are so numerous that joinder of all members is impracticable. Upon information and belief, there are approximately 1,257 inmates at USP Lewisburg, and an estimated 1,050 to 1,100 in the SMU program. Additionally,
24

it is impossible to determine which inmates currently housed in other Federal institutions may be transferred to USP Lewisburg in the future. 132. Common questions of law and fact exist as to all members ofthe Class. A class action is superior to other available methods for fair and efficient adjudication of the controversy. A non-exclusive list of the questions of law and fact common to the Class include: (1) whether there exists a pattern, practice or policy ofplacing hostile inmates together in cells or recreation cages; (2) whether the use of restraints in enforcing inmate placement decisions constitutes further conduct in violation ofthe Eighth Amendment; and (3) whether USP Lewisburg officials' failure to protect inmates from frequent and predictable inmate violence after forcing hostile inmates together in a cell or recreation cage amounts to an Eighth Amendment violation. 133. Plaintiff's claims are typical of the class members, in that each member of the class has suffered, or will potentially suffer, harm as a result of the same acts or omission engaged in by Defendants. 134. Plaintiff will fairly and adequately protect the interests ofthe members of the Class, and has retained counsel competent and experienced in class action and prisoners' civil rights litigation. Plaintiff's counsel has the resources, expertise, and experience to prosecute this action against Defendants. Plaintiff has no interest hostile to or in conflict with those ofthe proposed class with respect to the claims raised in this complaint.
25

135. Certification is warranted under Rule 23(b)(1)(A) because prosecuting separate actions for members ofthe Class would, as a practical matter, create a risk of inconsistent and varying adjudications with respect to individual class members. Individual adjudications may also substantially impede or impair other class members' ability to protect their interests. 136. The Defendants have acted, or refuse to act, on grounds generally applicable to the class. Final injunctive relief is appropriate with respect to all ofthe members of the class pursuant to Rule 23(b)(2).
Claims Count I. Plaintiff Norman Shelton vs. Defendants Bledsoe, Maiorana, Young,
Rear, Dunkelberger, Adami, Fosnot, Perrin, Heath, Dreese: Eighth Amendment Violation Arising Out of Assault on August 30, 2009 137. Plaintiff incorporates by reference the allegations in the preceding paragraphs of this Complaint. 138. Plaintiff's right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution was clearly established as of August 30, 2009. 139. Defendants, acting under color of federal law, deprived Plaintiff ofhis constitutional right to be free from cruel and unusual punishment.
26

140. Defendants Bledsoe, Maiorana, Young, Rear, Dunkelberger, Adami, Fosnot, Perrin, Heath, and Dreese violated Plaintiff's Eighth Amendment rights on August 27 2009 by assigning Plaintiff to a cell with a gang member. In making this assignment, Defendants ignored or were deliberately indifferent to the known substantial risk of material harm the placement would create. 141. Due to Defendants' acts and omissions, Plaintiff suffered serious bodily injury, and is therefore entitled to relief.
Count ll. Plaintiff Norman Shelton vs. Defendants Whitaker, Raup, Zelder, Heath, and Five John Doe Corrections Officers:
Eighth Amendment Violation Arising out of Assault on August 30, 2009 142. Plaintiff incorporates by reference the allegations in the preceding paragraphs ofthis Complaint. 143. Plaintiff's right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution was clearly established as of August 30, 2009. 144. Defendants, acting under color of federal law, deprived Plaintiff of his constitutional right to be free from cruel and unusual punishment. 145. Defendants Whitaker, Raup, Zelder, Heath, and John Doe Corrections Officers violated Plaintiff's Eighth Amendment rights by failing to intervene, despite having the ability and constitutional duty to do so, while Plaintiff's cellmate brutally
27

assaulted Plaintiff. Additionally, Defendants Whitaker and Raup placed Plaintiff in the cell despite Plaintiff's and Graham's warnings of a likely attack. 146. Due to Defendants' acts and omissions, Plaintiff suffered serious bodily injury, and is therefore entitled to relief. Count III. Plaintiff Norman Shelton vs. Defendants Bledsoe, Maiorana, Young,
Rear, Dunkelberger, Adami, Fosnot, Perrin, Heath, Dreese: Eighth Amendment Violation Arising out of Assault on November 26, 2009 147. Plaintiff incorporates by reference the allegations in the preceding paragraphs ofthis Complaint. 148. Plaintiff's right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution was clearly established as ofNovember 26~ 2009. 149. Defendants, acting under color of federal law, deprived Plaintiff of his constitutional right to be free from cruel and unusual punishment. 150. Defendants Bledsoe, Maiorana, Young, Rear, Dunkelberger, Adami, Fosnot, Perrin, Heath, Dreese, violated Plaintiff's Eighth Amendment rights on November 26, 2009, by assigning Plaintiff to a cell with a gang member. In making this assignment, Defendants ignored or were deliberately indifferent to the known substantial risk of material harm the placement would create. 151. Due to Defendants' acts and omissions, Plaintiff suffered serious bodily injury, and is therefore entitled to relief.
28

Count IV. Plaintiff Norman Shelton vs. Defendants Raup, Kulago, Fisher, Moffit, Combe and .John Doe Corrections Officers:
Eighth Amendment Violation Arising out of Assault on November 26, 2009 152. Plaintiff incorporates by reference the allegations in the preceding paragraphs of this Complaint. 153. Plaintiff's right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution was clearly established on November 26,2009. 154. Defendants, acting under color of federal law, deprived Plaintiff of his constitutional right to be free from cruel and unusual punishment. 155. Defendants Raup, Fisher, Kulago, Moffit, Zelder and Combe were present outside of Plaintiffs cell on November 26, 2009, and did nothing in response to the substantial risk of harm Plaintiff faced ifhis cellmate's attack was allowed to persist. Defendants Raup, Zelder, and John Doe Corrections Officers placed Carr into Plaintiffs cell through the coercive threat of restraining Plaintiff should he resist, and carried out the placement decision despite knowing Plaintiff could not be celled with gang members, despite the protestations of both Plaintiff and Carr, and despite the August 30 incident and Plaintiff's resulting grievances. 156. Due to Defendants' acts and omissions, Plaintiff suffered serious bodily injury, and is therefore entitled to relief.
29

Count V. Plaintiff Norman Shelton vs. The United States of America: Federal Torts Claims Act: Negligence on August 30, 2009
157. Plaintiff incorporates by reference the allegations in the preceding paragraphs ofthis Complaint. 158. Defendant the United States of America is responsible for the oversight of its employees, which includes officers and staff at federal correctional facilities. Pursuant to the Federal Tort Claims Act, the United States is liable for damages caused by the negligent or wrongful acts of its employees acting within the scope of their employment, under circumstances where the United States, if a private person, would be liable in accordance with the laws ofthe Commonwealth of Pennsylvania. 159. Corrections Officers and staff have a duty to protect inmates from harm caused by other inmates. The staff at USP Lewisburg owed this duty to Plaintiff. 160. On August 30, 2009, Prison officials knew or should have known that Plaintiff faced an excessive risk to his health and safety when the officials placed Plaintiff with a hostile cellmate, and also when officials subsequently allowed Plaintiff's cellmate to beat Plaintiff without intervening on Plaintiff's behalf. 161. Prison officials breached their duty to protect Plaintiff from harm by failing to take any actions to protect him in the face of known risks to his safety. 162. Plaintiff exhausted his administrative remedies for the August 30, 2009 placement and attack.
30

163. As a result of the prison staffs negligent acts and omissions, Plaintiff suffered serious personal injuries, pain and suffering, and emotional and psychological distress.
Court VI. Plaintiff Norman Shelton vs. The United States of America: Federal Torts Claims Act: Negligence on November 26, 2009
164. Plaintiff incorporates by reference the allegations in the preceding paragraphs ofthis Complaint. 165. Defendant the United States of America is responsible for the oversight of its employees, which includes officers and staff at federal correctional facilities. Pursuant to the Federal Tort Claims Act, the United States is liable for damages caused by the negligent or wrongful acts of its employees acting within the scope of their employment, under circumstances where the United States, if a private person, would be liable in accordance with the laws of the Commonwealth of Pennsylvania. 166. Corrections Officers and staffhave a duty to protect inmates from harm caused by other inmates. The staff at USP Lewisburg owed this duty to Plaintiff. 167. On or around November 26, 2009, Prison officials knew or should have known that Plaintiff faced an excessive risk to his health and safety when the officials placed Plaintiff with a hostile cellmate, and also when officials subsequently allowed Plaintiff's cellmate to beat Plaintiff without intervening on Plaintiff's behalf. 168. Prison officials breached their duty to protect Plaintiff from harm by failing to take any actions to protect him in the face of known risks to his safety.
31

169. Plaintiff exhausted his administrative remedies for the November 26, 2009 placement and attack. 170. As a result of the prison staff's negligent acts and omissions, Plaintiff suffered serious personal injuries, pain and suffering, and emotional and psychological distress.
Count YD. Class v. The United States of America through its department, the BOP and Defendants Kane, Norwood, Bledsoe, Young, and Rear: Eighth Amendment Violation
171. Plaintiff asserts this claim on behalf of himself and a class of all similarly situated inmates at USP Lewisburg, as described in Paragraph 119. 172. Plaintiff incorporates by reference as if fully set forth herein the allegations contained in this Complaint. 173. Plaintiff and the class members have a right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. This means that prison officials must protect prisoners from excessive risks of substantial material harm. 174. Defendants, acting under color of federal law, engaged in a pattern, practice or policy ofplacing hostile inmates together in cells and/or recreational cages despite the substantial risk that the hostile inmates would cause significant harm to each other, and enforcing this pattern, practice or policy through the threat and use ofpunitive restraints. Furthermore, Defendants, again acting under the color of federal law, engaged in a pattern, practice or policy of failing to intervene to protect inmates from
32

predictable harm at the hands of hostile inmates, with whom the inmates were placed by Defendants. Thus, Defendants have deprived the members of the class oftheir constitutional rights to be free from cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution, and will continue to do so unless their patterns, practices and policies are changed. If appropriate declaratory and injunction relief is not granted, the harms suffered will be irreparable, may lead to death, and will continue for the foreseeable future. 175. Defendants' acts and omissions have caused and will continue to cause serious bodily injury to Plaintiff and every other inmate housed at USP Lewisburg, currently or in the future, and therefore the class is entitled to injunctive relief.
Prayer for Relief WHEREFORE, Plaintiffprays as follows:
1. That Defendants be adjudged to have violated Plaintiffs right under the Eighth Amendment to the United State Constitution to be free from cruel and unusual punishment. 2. That judgment is entered for Plaintiff against Defendants for compensatory and punitive damages, together with the costs of litigation, including reasonable attorney's fees, and any other equitable or legal relief that the case may require and that the Court may deem proper.
33

3. That Defendants be adjudged to have violated the class members' rights under
the Eighth Amendment to the United States Constitution to be free from cruel and
unusual punishment.
4. That the Court issue an injunction preventing Defendants from continuing their
unconstitutional housing, recreation, and restraint patterns, practices and policies.
David Stanoch Stephen D. Brown Christine C. Levin Jennifer L. Burdick Francis J. Dermody Sean P. McConnell DechertLLP Cira Centre 2929 Arch St. Philadelphia, PA 19104 (215) 994-2812 Fax: (215) 655-2812 E: david.stanoch@dechert.com
PENNSYLVANIA INSTITUTIONAL LAW PROJECT
Marybeth Walsh Attorney l.D. No. PA 203765 429 Forbes Ave., Ste. 800 Pittsburgh, PA 15219 Tel: 412-434-6175
34

Dated: August 29, 2011

Fax: 412-434-5706 E: mwalsh@Pailp.org
Jennifer J. Tobin Attorney I.D. No. PA 202047 718 Arch Street, Ste. 304 South Philadelphia, PA 19106 Tel: 215-925-2966 Fax: 215-925-5337 E: jtobin@pailp.org
WASHINGTON LAWYER'S COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS
Ivy Finkenstadt DC Bar No. 488147 Philip Fornaci DC Bar No. 434824 Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Circle, NW Suite 400 Washington, D.C. 20036 202-319-1000
Attorneys for PlaintiffNorman Shelton

35

 
 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NORMANN. SHELTON,

Plaintiff

No. 3:CV-II-1618

vs.
BRIAN A. BLEDSOE, et aI., Defendants

(Judge Nealon)
FILED SCRANTON

MEMORANDUM

OCT 2 4 2012

1h1 IaER

c

t. l.

r

DEPUTY CLERK

Background

On August 30,2011, Norman N. Shelton, an inmate confined in the United

States Penitentiary, Lewisburg ("USP-Lewisburg"), Pennsylvania, filed the above captioned, combined, Bivens,l and Federal Tort Claims Act ("FTCA") claim,

pursuant to 28 U.S.C. § 2671, et seq. Named as Defendants are the United States;

the following twenty-one current or former employees of the Bureau of Prisons

("BOP"): T. Kane, J. L. Norwood, B.A. Bledsoe, C. Maiorana, D. Young, K. Bahre

2. Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971).
1

(identified in the Complaint as "Krista Rear"), J. Dunkelberger, J. Adami, J. Fosnot, F. Perrin, S. Heath, N. Dreese, K. Whittaker, R. Raup, S. Zeiders (identified in the Complaint as "Zelder"), B. Walls, L. Potter, G. Kulago, R. Fisher, H. Moffat (identified in the Complaint as "Moffit"), D. Coombe (identified in the Complaint as "Combe"); and unidentified John Doe correctional officers. Shelton raises claims of deliberate indifference to his safety with regard to events surrounding a November 26, 20092 assault upon him by his cellmate, and claims regarding his resulting medical care. (Doc. 1, complaint). Shelton also sues the United States under the FTCA. Id.
Presently before the Court is Defendants' motion to dismiss and for summary judgment (Doc. 22). For the reasons set forth below, the Court will grant Defendants' motion for summary judgment. I. Summary Judgment
A. Bivens Standard
20n February 21, 2012, the Plaintiff filed a stipulation to dismiss Counts One and Two of the complaint, regarding claims arising out of an August 30, 2012 assault. (See Doc. 24, Stipulation).
2

Plaintiffs claims are filed pursuant to 28 U.S.C. § 1331, in accordance with Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, (1971). Under Bivens, the District Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 to entertain an action brought to redress alleged federal constitutional or statutory violations by a federal actor. Bivens, supra. Pursuant to Bivens, "a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal question jurisdiction of the district court to obtain an award of monetary damages against the responsible federal official." Butz v. Economou, 438 U.S. 478, 504 (1978). A Bivens-style civil rights claim is the federal equivalent of an action brought pursuant to 42 U.S.C. § 1983 and the same legal principles have been held to apply. See, Paton v. LaPrade, 524 F.2d 862,871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp. 1486, 1492 (M.D. Pa. 1992); Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D. Pa. 1992). In order to state an actionable Bivens claim, a plaintiff must allege that a person has deprived him of a federal right, and that the person who caused the deprivation acted under color of federal law. See West v. Atkins, 487 U.S. 42, 48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa. 1992); Sharpe v. Costello, 2007 WL 1098964, *3 (M.D. Pa. 2007).
3

B. Summary Judgment Pursuant to Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.s. at 248; Gray v. York Newspapers. Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514. United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).
4

When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company, 862 F.2d 56,59 (3d Cir. 1988). In order to avoid summary judgment, however, parties may not rely on unsubstantiated allegations. Parties seeking to establish that a fact is or is not genuinely disputed must support such an assertion by "citing to particular parts of materials in the record," by showing that an adverse party's factual assertion lacks support from cited materials, or demonstrating that a factual assertion is unsupportable by admissible evidence. Fed.R.Civ.P.56(c)(1); see Celotex, 477 U.S. at 324 (requiring evidentiary support for factual assertions made in response to summary judgment). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). Parties must produce evidence to show the existence of every element essential to its case that they bear the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323; see Harter v. G.A.F. Corp.,
5

---------------------------- -----
967 F.2d 846, 851 (3d Cir.1992). Failure to properly support or contest an assertion of fact may result in the fact being considered undisputed for the purpose of the motion, although a court may also give parties an opportunity to properly provide support or opposition. Fed.R.Civ.P.56(e). II. Statement of Facts
From the pleadings, declarations and exhibits submitted therewith, the following facts can be ascertained as undisputed.
Prior to an inmate's arrival at USP Lewisburg, the Case Management Coordinator is provided a Security and Designation Data packet which includes a list of other inmates he is separated from. (Doc. 30-3, Ex. 2, Declaration of John Dunkelberger, USP-Lewisburg Case Management Coordinator, at ~ 3). The Plaintiff's Security and Designation Data packet was provided on or about July 1,2009, and was reviewed by Case Management Coordinator Dunkelberger. rd. It was noted on the first page of Plaintiff's Security and Designation Data packet, after reviewing the packet, that there were no Central Inmate Monitoring System (CIMS)3 concerns. (Doc. 28, Att B, SecuritylDesignation Data). Although
3The BOP monitors and controls the transfer, temporary release and
(continued ...) 6

Plaintiff had several prior separations listed, none of them were from Inmate Carr.
y .. continued)
community activities of certain inmates who present special needs for management. (Doc. 30-3, Ex. 2, Declaration of John Dunkelberger, USPLewisburg Case Management Coordinator, at ~ 2). Such inmates are known as Central Inmate Monitoring Cases (CIM) and require a higher level of review for transfers, temporary releases or community activities. Id. This monitoring is done to provide protection to all concerned and to contribute to the safe and orderly operation of the federal institutions. Id. CIM categories include "Separation," which includes inmates who may not be confined in the same institution (unless the institution has the ability to prevent any physical contact between the separatees). Id. Factors to be considered in categorizing an inmate as a Separation include, but are not limited to: testimony by or about an individual provided in court, whether the inmate has exhibited aggressive or intimidating behavior towards other specific individuals in the community or institution, and whether inmates have cooperated with the authorities in providing information about illegal activities of other individuals. Id. An inmate may be classified as a CIM inmate at any time by a community corrections manager or by appropriate staff in the BOP Central Office, regional offices or institutions. Id. Periodic reviews of CIM assignments occur at program review. Id. When staff believe that removal or modification of a CIM assignment is appropriate, the institution's Case Management Coordinator (CMC) and appropriate reviewing authority must be notified. Id. An inmate may appeal the placement in a CIM category by utilizing the administrative remedy process. Id. BOP policies and procedures regarding CIM assignments are set forth in BOP Program Statement 5180.05, Central Inmate Monitoring System (Doc. 30-3, Dunkelberger Decl., Ex. 2, Att. A).
7

On November 26, 2009, at approximately 7: 13 am, the G-3#2 Officer activated his body alarm upon observing Inmate Carr assault inmate Norman Shelton, in G-Block cell #211. Specifically, while inmate Shelton was handing out food trays from the breakfast meal, inmate Carr assaulted him by striking him with closed fists to the head and torso. (Doc. 30-1, Ex. 1, Att. B, Form 583 Report of Incident). Upon the arrival of responding staff, both inmates submitted to hand restraints and were escorted from the cell without further incident. Id. Both inmates were medically assessed. Id. Inmate Shelton was found to have sustained tenderness to his left ribs and left hand. Id. Inmate Carr was found to have sustained no injuries. Id. No staff injuries were reported. Id.
In a November 26, 2009 Memorandum, Defendant Fisher stated that on the morning of November 26,2009, he was on the second floor ofG block assisting with the collection of food trays, when staff attempting to collect the food trays from Cell 211 activated their body alarm due to a cell fight. Id. Defendant Fisher stated that he went to the front of the range and disengaged the dead bolt lock for that side of the range. Id. He then went to the cell, and staff restrained and removed both Shelton and Carr without further incident. Id.
The daily assignment roster reflects Officer Moffat was off on November
8

26,2009; and Officer Coombe, who was assigned to Tower No.7, was not even inside the institution where the incident occurred. (Doc. 28, Att. ff, Daily Assignment Roster).
At 7:25 a.m., PA-C Hemphill conducted an injury assessment of Inmate Shelton. (Doc. 30-1, Ex. 1, Att. B, Bureau of Prisons Health Services Clinical Encounter - Administrative Note). Shelton was found to have muscle tenderness and pain in the joint of his hand. Id. There were no significant findings reported. Id. However, as a precaution, Plaintiff was scheduled for a December 4,2009, x-ray of his hand and ribs. Id.
On August 30, 2011, through counsel, Plaintiff filed the instant action. (Doc. 1, complaint). Shelton alleges that Defendants place "hostile" inmates together in cells and/or recreation cages when there is a serious risk that the "hostile" inmates will harm each other; use restraints to punish inmates who complain about such placements; and fail to intervene to prevent harm to inmates from such cell placements. Id. He claims that he has personally been assaulted "several times" by cellmates with whom he had a "documented hostile relationship," suffered injury because staff failed to "react timely" to stop the assaults, and placed in restraints as punishment for refusing to accept "hostile inmates" as his
9

cellmates. rd. Shelton alleges that conditions within the SMU, including housing inmates
in cells together or placing them in recreation cages together, lead "to an obvious and pervasive threat of violence." rd. at ~ 40. He claims that "once settled," inmates would frequently inform staff about their "enemies" or "groups" or "gangs" which they believe pose a risk to their safety. See id. at ~ 50.
Shelton alleges that Defendants knew that if they placed "hostile" inmates in a cell or recreation cage together, there was a substantial risk that the inmates would engage in violent conduct that could lead to injury or death. See id. at ~ 51. He claims that Defendants Bledsoe, Young, and Bahre, knew of or were deliberately indifferent to the policy of USP Lewisburg staff in placing known hostile inmates together in cells or recreational cages, and that USP-Lewisburg has a policy of not entering cells or recreation cages to stop inmate-on-inmate assaults until the assault has stopped. See id. at ~~ 52-57. Specifically, he contends that Defendant Heath acknowledged Shelton's "separation needs" in a 2009 intake interview when he returned to USP-Lewisburg as resident of the SMU, and that during this interview he stated that gang members, including the "Bloods" and the "Crips" were hostile to Muslim inmates. See id. at ~~ 80, 84. However, despite being put on notice, on
10

November 25,2009, the Committee assigned him to a cell with inmate Carr, a known "Crips" gang member. See id. at'if'if 100-101, 107. Shelton believes that because of the August 30,2009 fight, and his alleged request not to be celled with a gang member, this cell assignment was improper. Id. at 'if 102. Plaintiff claims that Defendants Raup, Zeiders, and John Doe defendants "forced" Inmate Carr into Shelton's cell despite Shelton's protests and inmate Carr's comments that he would assault Shelton. See id. 'if'if 103-109. Shelton alleges that Defendant Raup deliberately misled Shelton by insisting that Inmate Carr was not a gang member. Id. at 'if 107. III. Discussion
A. Eighth Amendment Failure to Protect Claim The Eighth Amendment's prohibition against the infliction of cruel and unusual punishment has been interpreted to impose upon prison officials a duty to take reasonable measures "'to protect prisoners from violence at the hands of other prisoners.'" Hamilton v. LeavY, 117 F.3d 742,746 (3d Cir. 1997) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). Although, "[i]t is not ... every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for a victim's safety," "[b]eing violently
11

assaulted in prison is simply not 'part of the penalty that criminal offenders pay for their offenses against society.'" Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337,345 (1981». A plaintiff, however, must prove more than that he had a fight with another inmate, see Beard v. Lockhart, 716 F.2d 544,545 (8th Cir. 1983), and mere negligent conduct that leads to serious injury of a prisoner by a prisoner does not expose a prison official to liability under § 1983. Davidson v. Cannon, 474 U.S. 344, 347-48 (1986). To succeed, a prisoner must show that: (1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the defendant was "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists"; (3) the defendant actually drew this inference; and (4) the defendant deliberately disregarded the apparent risk. Farmer, 511 U.S. at 834-37.
In determining whether a defendant was deliberately indifferent, the court must "focus [on] what a defendant's mental attitude actually was (or is), rather than what it should have been (or should be)." Hamilton v. Leavy, 117 F.3d at 747. It is not an objective test for deliberate indifference; rather, the court must look to what the prison official actually knew, rather than what a reasonable official in his position should have known. "A prison official's knowledge of a substantial risk is a
12

question of fact and can, of course, be proved by circumstantial evidence." Id. In
other words, it may be concluded that a prison official knew of a substantial risk
from the very fact that the risk was obvious. The Farmer Court explained in
hypothetical terms the type of circumstantial evidence sufficient for a finding of
actual knowledge on the part of a prison official:
[I]f an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was 'longstanding, pervasive, well-documented, or expressly noted by prison officials in the past,' and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus 'must have known' about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.
Farmer, 511 U.S. at 842-43.
Thus, in order to survive Defendants' summary judgment motion, Shelton was
obligated to produce sufficient evidence to support the inference that Defendants
"'knowingly and unreasonably disregarded an objectively intolerable risk of harm.'"
Beers-Capitol v. Whetzel, 256 F.3d 120, 132 (3d Cir. 2001). It is not enough to
assert that a defendant should have recognized the risk; the evidence must be
sufficient to support the inference that "the defendant must have recognized the
excessive risk and ignored it." Id. at 138.
13

There is no evidence in the record that the Defendants ever obtained any knowledge or awareness from Shelton that Carr posed any substantial risk to his safety. Plaintiffs only allegation is that Defendants "forced" inmate Carr into Plaintiffs cell, "despite Shelton's protests." (Doc. 1, Complaint). However, Shelton's allegation, without more, is insufficient to give Defendants notice that Shelton faced a substantial risk of harm. Shelton does not allege that inmate Carr threatened him in any way before they were celled together or that they had any history of ill will between them. He simply alleges that inmate Carr was a known "Crips" gang member, and he told staff that gang members, including the "Bloods" and the "Crips" were hostile to Muslim inmates.
Thus, the record lacks sufficient evidence to establish that Defendants knew or were aware of and disregarded a substantial risk to Shelton's health or safety. There is no evidence in the record which would create a material issue of fact with regard to whether Defendants had the requisite level of knowledge or awareness necessary to impose liability under the Eighth Amendment. Nor is there evidence from which it could be inferred that inmate Carr posed a risk of harm to Shelton. At most, Shelton alleges that inmate Carr made vague allegations that he would assault Shelton to Defendant Raup, which may state a claim of negligence -a claim not
14

r - - - - - - - - - - - - - - - ------- -------- ----- -- ------- - -- - - -- - - - -- - - - - - - - - - - - - - - - ,
viable here. Thus, Shelton failed to state claim of an Eighth Amendment violation.
See Davis v. Muscarella, 615 F. Supp. 2d 296,303 (D. Del. 2009) (noting the
plaintiff s Eighth Amendment claim failed, and at most, the plaintiff asserted a
negligence action). Accordingly, summary judgment is warranted in favor of
Defendants.
Likewise, Plaintiff s claim that staff stood outside Shelton's
cell while Shelton was assaulted by Inmate Carr, and did not do anything to
stop the attack, fails to sufficiently state an Eighth Amendment violation.
When the ever-present potential for violent confrontation and conflagration ripens into actual unrest and conflict, the admonition that a prison's internal security is peculiarly a matter normally left to the discretion of prison administrators carries special weight. Prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. That deference extends to a prison security measure taken in response to an actual confrontation with riotous inmates, just as it does to prophylactic or preventive measures intended to reduce the incidence of these or any other breaches of prison discipline. It does not insulate from review actions taken in bad faith . and for no legitimate purpose, but it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice. Accordingly, ..., courts must determine whether the evidence goes beyond a mere dispute over the reasonableness of a particular use of force or the existence of arguably superior alternatives. Unless it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the
15

infliction of pain under the standard we have described, the case should not go to the jury. Whitley v. Albers, 475 U.S. 312, 321-322 (1986) (internal quotations and citations omitted). The restriction on cruel and unusual punishment contained in the Eighth Amendment, however, reaches non-intervention just as readily as it reaches the more demonstrable brutality of those who unjustifiably and excessively employ fists, boots or clubs. Smith v. Mensinger, 293 F.3d 641,651 (3d Cir. 2002). A corrections officer's failure to intervene in a beating can be the basis of liability for an Eighth Amendment violation if the corrections officer had a reasonable opportunity to intervene and failed to do so. rd. at 650; see also, Urrutia v. Harrisburg County Police Dept., 91 F.3d 451,456 (3d Cir. 1996) (noting that deliberate indifference standard should apply to claims that prison officials failed to protect inmate from violent attack whether or not the attack comes from another inmate). The record evidence reveals that Defendant, Officer Rear was standing at the cell when Carr attacked Shelton. Once Officer Rear's body alarm was activated, Officer Fisher immediately went to the front of the range and disengaged the dead bolt lock for that side of the range and then went to the cell, assisting Officer Rear in
16

restraining and removing both Shelton and Carr, without further incident. As evidenced by the record, the incident occurred at 7: 13 am and by 7:25 am, Shelton was already being medically assessed in the medical department. Thus, it appears that the incident, removal and transfer to medical, occurred within a matter of twelve minutes. As such, the record fails to support an Eighth Amendment claim of deliberate indifference to Shelton's safety. This is precisely the type of prison security matter where courts have recognized that they must defer to the experience and judgment of prison officials. See Whitley v. Albers, 475 U.S. at 320 (1986); Hudson v. McMillian, 503 U.S. 1,6 (1992) (recognizing that "officials confronted with a prison disturbance must balance the threat unrest poses to inmates, prison workers, administrators, and visitors against the harm inmates may suffer if guards use force .... and must determine what action to take 'in haste, under pressure, and frequently without the luxury of a second chance."') (quoting Whitley v. Albers, 475 U.S. at 320)). It appears that Plaintiffs allegations are simply a disagreement as to the timing of Defendants' response, as he makes no allegation that the Defendants acted wantonly to see Shelton in pain. Shelton v. Bledsoe, slip op., Civ. No. 4:11-cv-0368, at 14 (quoting Whitley v. Albers, 475 U.S. at 321-22 (citations omitted)).
17

B. Eighth Amendment Failure to Provide Adequate Medical Care In order to establish an Eighth Amendment medical claim, a plaintiff must show "(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need." Natale v. Camden Cty. Correctional Facility, 318 F.3d 575,582 (3d Cir. 2003). See also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that a layperson would recognize the need for a doctor's attention. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). In addition, "if unnecessary and wanton infliction of pain results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the eighth amendment." Id. (quotation and citation omitted). A prison official acts with deliberate indifference to an inmate's serious medical needs when he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a complaint that a physician or a medical department "has been negligent in diagnosing or treating a
18

medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment..." Estelle v. Gamble, 429 U.S. 97, 106 (1976). For instance, a "medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice." Id., 429 U.S. at 107. "[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights." Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor's disagreement with the professional judgment of another doctor is not actionable under the Eighth Amendment. See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment, or medical malpractice does not give rise to a § 1983 cause of action, and an inmate's disagreement with medical treatment is insufficient to establish deliberate indifference. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).
Further, a prison administrator cannot be found deliberately indifferent under the Eighth Amendment because he or she fails to respond to the medical complaints of an inmate being treated by a prison physician, or because, as non-physicians, they defer to the medical judgment of the inmate's treating physicians. Id., 991 F.2d at 69. If, however, non-medical prison personnel had "a reason to believe (or actual
19

--------------,
knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner," liability may be imposed. Spruill, 372 F.3d 236.
A mere difference of opinion between the prison's medical staff and the inmate regarding the diagnosis or treatment which the inmate receives does not support a claim of cruel and unusual punishment. Farmer v. Carlson, 685 F. Supp. 1335,1339 (M.D. Pa. 1988). See McCracken v. Jones, 562 F.2d 22,24 (lOth Cir. 1977); Smart v. Villar, 547 F.2d 112, 113 (lOth Cir. 1976), cert. denied, 450 U.S. 1041 (l981).
Additionally, if there is a dispute over the adequacy of the received treatment, courts have consistently been reluctant to second guess the medical judgment of the attending physician. Little v. Lycoming County, 912 F. Supp. 809, 815 (M.D. Pa.), aff'd, 101 F.3d 691 (3d Cir. 1996). The key question is whether the defendant has provided the plaintiff with some type of treatment, regardless of whether it is what the plaintiff desires. Farmer v. Carlson, 685 F. Supp. at 1339.
The only allegation made by Plaintiff regarding medical care is that staff failed to "take him for medical treatment." (Doc. 1, Complaint). Plaintiff provides no further evidence in support of his claim.
20

However, the documentation submitted by Defendants clearly demonstrates that Plaintiff received medical attention, as well as treatment for his injuries, and that the attention Plaintiff received lacks the requisite deliberate indifference to support a Section 1983 claim. Immediately after the assault, Plaintiff was placed in the Special Housing Unit, where, PA Hemphill conducted an injury assessment. (Doc. 30-1, Ex. 1, Att. B, Bureau of Prisons Health Services Clinical EncounterAdministrative Note). Shelton was found to have muscle tenderness and pain in the joint of his hand. Id. There were no significant findings reported. Id. However, Plaintiff was scheduled for a December 4,2009, x-ray of his hand and ribs. Id.
The record evidence establishes meaningful efforts by the Defendants to provide Plaintiff with necessary medical care, and an attendant mental state that falls woefully short of deliberate indifference. Thus, Defendants' uncontroverted evidence demonstrates that the scope and quality of medical attention provided precludes a finding of deliberate indifference on behalf of the Defendants. As such, Defendants are entitled to summary judgment.
C. Federal Tort Claims Act The Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. § 2671 et seq., is a statutory waiver of sovereign immunity for tort claims. Gotha v. United States, 115
21

F.3d 176, 179 (3d Cir. 1997). The FTCA allows the government to be sued "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C.A. § 2674. However, as the FTCA is an express waiver of sovereign immunity, strict compliance with its provisions is required. Livera v. First Nat'l Bank, 879 F.2d 1186, 1194 (3d Cir. 1989).
As a prerequisite to suit under the FTCA, a claim must first be presented to the federal agency and be denied by the agency. The FTCA provides:
An action shall not be instituted against the United States for money damages for injury or loss of property or personal injury ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. 28 U.S.C. § 2675(a). "The statutory language is clear that a court does not have jurisdiction before administrative remedies have been exhausted, and a court must dismiss any action that is initiated prematurely." Wilder v. Luzinski, 123 F. Supp.2d 312,313 (E.D. Pa. 2000) (citing McNeil v. United States, 508 U.S. 106, (1993); Wujick v. Dale & Dale, 43 F.3d 790, 793-94 (3d Cir. 1994)).
22

Moreover, a claimant must abide by the strict time requisites codified in 28 U.S.C. § 2401(b) or its tort claim under the FTCA will be "forever barred.,,4 See Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971). In order to sue the United States in District Court and avoid violating the FTCA's express statute of limitations, a tort claim must be "presented in writing to the appropriate Federal agency within two years after such claim accrues...." 28 U.S.C. § 2401(b); see also Bialowas, 443 F.2d at 1049. Section 2401's "time bar is strictly construed." Brown v. Camden County Counsel, No.10-1098, 2010 U.S. App. LEXIS 9826, *6 (3d Cir. May 13,2010) (citing Livera v. First Nat. State Bank of N.J. , 879 F.2d 1186, 1195 (3d Cir. 1989)).
A review ofUSP-Lewisburg administrative tort claim records from January, 2009, through the present, reveals that Shelton filed seven administrative
428 U.S.C. § 2401(b) states: [A] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal Agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
23

r - - - - - - - - -- - -- - - - -- ..-. ---...-.. --.....

tort claims regarding incidents occurring on January 15,2009, January 24,2009,

January 25,2009, two incidents on August 30, 2009, February 10,2011 and July 15,

2011. (Doc. 30-1, Ex. 1, Att. A, Summaries, BOP administrative tort claim

database). As is apparent from these undisputed facts, Shelton never filed an

administrative tort claim regarding the November 26, 2009 incident. Id. Plaintiff

does not dispute this. Consequently, the Court does not have jurisdiction to hear

Shelton's tort claim, and the Defendants are entitled to summary judgment.

A separate Order will be issued.

Dated: October 24,2012

~tAP·b)...~
United States District Judge

24

 
 r-------------------------

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NORMANN. SHELTON,

Plaintiff

No.4:CV-II-1618

vs.

(Judge Nealon)

WARDEN BLEDSOE, et aI.,

Defendants

ORDER

AND NOW, THIS 24th DAY OF OCTOBER, 2012, for the reasons set forth

in the Memorandum of this date, IT IS HEREBY ORDERED THAT:

1. Defendants' motion to dismiss and for summary judgment (Doc. 22) is GRANTED. The Clerk of Court is directed to enter judgment in favor of Defendants and against Plaintiff on all claims.

2. The Clerk of Court is directed to CLOSE this case.

3. Any appeal from this order will be deemed frivolous, not
~~. . y-:~ taken in good faith and lacking probable cause.

FILED

United States District Judge

SCRANTON

orT 2 4 2012

IIER _S~fu~~l~e:-:-:.~_
OEPUTY CLERK

 
 --l

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NORMANN. SHELTON,

Plaintiff

No. 3:CV-1l-1618

vs.
BRIAN A. BLEDSOE, et al., Defendants

(Judge Nealon)
FILED
SCRANTON
OCT 2 4 2012

MEMORANDUM

On August 30,2011, Norman N. Shelton, an inmate confined in the United

States Penitentiary, Lewisburg ("USP-Lewisburg"), Pennsylvania, filed the above

captioned, combined, Bivens,I Federal Tort Claims Act ("FTCA") claim, pursuant to

28 U.S.C. § 2671, et seq., and class action lawsuit. Named as Defendants are the

United States; the following twenty-one current or former employees of the Bureau

of Prisons ("BOP"): T. Kane, J. L. Norwood, B.A. Bledsoe, C. Maiorana, D. Young,

K. Bahre (identified in the Complaint as "Krista Rear"), J. Dunkelberger,

2. Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388,397 (1971).
-1-

J. Adami, J. Fosnot, F. Perrin, S. Heath, N. Dreese, K. Whittaker, R. Raup, S. Zeiders (identified in the Complaint as "Zelder"), B. Walls, L. Potter, G. Kulago, R. Fisher, H. Moffat (identified in the Complaint as "Moffit"), D. Coombe (identified in the Complaint as "Combe"); and unidentified John Doe correctional officers.
Shelton raises claims of deliberate indifference to his safety with regard to events surrounding a November 26,20092 assault upon him by his cellmate, and claims regarding his resulting medical care. (Doc. 1, complaint). In addition, Shelton alleges that Defendants place "hostile" inmates together in cells and/or recreation cages with the knowledge that they will harm each other, Defendants improperly use restraints to force inmates to cell together,3 and when the cellmates fight, Defendants will not intervene. Id. Shelton claims that he should represent a
20n February 21, 2012, the Plaintiff filed a stipulation to dismiss Counts One and Two of the complaint, regarding claims arising out of an August 30, 2012 assault. (See Doc. 24, Stipulation).
3Defendants' counsel posits that Plaintiff s counsel told him that Shelton is not pursuing an independent Eighth Amendment claim regarding use of restraints. (See Doc. 30, Statement of Material Facts, fn 4). Plaintiff does not refute this.
-2-

class of inmates that would allege similar violations. Id. Finally, Shelton sues the United States under the FTCA. Id.
Presently before the Court is Plaintiff s motion for class certification (Doc. 13). For the reasons set forth below, the Court will deny Plaintiffs motion for class certification.
I Background Pursuant to Federal Rule of Civil Procedure 23, Plaintiff moves for an order certifying a class consisting of all persons who are currently or will be imprisoned in the Special Management Unit ("SMU") at USP-Lewisburg. (Doc. 13, Motion for Class Certification). Plaintiff states that the class period commences from the filing of the above-captioned action and continues so long as USP-Lewisburg officials and corrections officers persist in the unconstitutional policy of placing hostile inmates in double cells or recreational cages without taking any reasonable measures to protect the inmates from inmate-on-inmate violence, and using punitive restraints to enforce this policy. Id. Plaintiff alleges that in 2008, the Bureau of Prisons created an SMU program at USP-Lewisburg. (Doc. 1, complaint at ~ 31). The SMU program is "designed for inmates who are difficult to manage in typical high security institutions. These
-3-

include those who participate in or have leadership roles in geographical groups/gang related activity, or inmates who pose unique security or management concerns." (Doc. 14-4, Ex. C, U.S. Dept. of Justice, Federal Bureau of Prisons, State of the Bureau 2009: The Bureau's Core Values at 3). Plaintiff alleges that there are approximately 1,000 to 1,100 inmates in the SMU program. (Doc. 14, brief in support of motion for class certification).
Plaintiff claims that upon entering the SMU program at USP-Lewisburg, inmates participate in an intake interview with USP-Lewisburg officials, often referred to as a "Quay" hearing. (Doc. 1, complaint at ~~ 42-49). The Quay hearing serves as an opportunity for Defendants to gather information about the inmate so that the prison officials can make safe and appropriate placement decisions, and avoid placing hostile inmates together. Id. at ~ 43. At this interview, inmates disclose their separation needs and known enemies and identify specific geographic groups or gangs with whom an inmate has problems. Id. at ~ 44.
Following the Quay hearing, a Cell Assignment Committee, with the assistance of corrections officers on each block, assigns each inmate to a cell block and a specific cell. Id. at ~ 45. The Cell Assignment Committee is responsible for considering the inmate's safety when making placement decisions. Id. at ~ 48.
-4-

Once settled at USP-Lewisburg, inmates frequently update Corrections Officers orally or in writing of new inmate adversaries, or geographic groups or gangs that they believe pose a substantial risk of material harm to them. Id. at ~ 50.
Inmates are also subject to periodic cell-rotations, and such assignments sometimes include a new cellmate. Id. at ~ 52. This rotation renews the potential for an inmate to be placed with a hostile inmate. Id. Instead of separating problematic inmates from each other, Plaintiff states that "Defendants have engaged, and continue to engage, in a pattern or practice of placing hostile inmates together, both in their cell assignments (where they spend twenty-three hours a day) as well as their recreational cage time (the remaining hour of the day)." Id. at ~~ 51-56. Plaintiff alleges that there have been "at least 272 reported incidents of inmate-oninmate violence at Lewisburg from 2008 until July 2011." rd. To exacerbate the situation, inmates are unable to avoid inappropriate placements because the Defendants enforce their policy by placing those who refuse to be celled with a hostile inmate into painful and confining restraints. Id. at ~~ 59-67.
Plaintiff contends that Defendants' unconstitutional placement policy has resulted in inmates repeatedly experiencing three categories of injury: (1) injury or threat of injury as a result of being celled or placed with an inmate with whom an
-5-

inmate has a known hostile relationship; (2) injury or threat of injury because officers fail to timely stop foreseeable assaults between hostile inmates; and (3) placement in painful punitive restraints for refusing a dangerous cell assignment. rd. at , 1. As such, Plaintiff seeks to have a class certified to challenge the constitutionality of the three interrelated policies or practices employed at USPLewisburg. rd. Plaintiff alleges: (1) that all inmates are subjected to the same placement policy, (2) that all inmates are subjected to the same intervention policy, and (3) that all inmates are subjected to the same punitive restraint practice if they resist the first two policies. rd.
II. Certification Under Rule 23(a) The class-action device is "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979). Class relief is "peculiarly appropriate" when the "issues involved are common to the class as a whole" and when they "turn on questions of law applicable in the same manner to each member of the class." rd. at 701. It is appropriate in cases where it "saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be
-6-

litigated in an economical fashion under Rule 23." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 155 (1982) (quoting Califano, 442 U.S. at 701).
Class certification is proper only if the trial court is satisfied that the prerequisites of Rule 23 are met. See, e.g., In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305,309 (3d Cir.2008) (citing Gen Tel. Co. ofSw. v. Falcon, 457 U.S. 147, 161(1982)). To meet the prerequisites of Rule 23, a plaintiff must establish both that the four requirements of Rule 23(a) have been met-numerosity, commonality, typicality, and adequacy-and that the pleading requirements of Rule 23(b)(I), (2), or (3) have been met. See generally Fed.R.Civ.P. 23. The plaintiff bears this burden by a preponderance of the evidence. See, e.g., Hydrogen Peroxide, 552 F.3d at 320. In analyzing whether the requirements of Rule 23 have been met, the Court makes the factual and legal inquiries necessary and considers all relevant evidence and arguments presented by the parties. Id. at 307.
A threshold requirement to a Rule 23 action is the actual existence of a class which is sufficiently definite and identifiable. See,~, Kline v. Sec. Guards, Inc., 196 F.R.D. 261, 266 (E.D. Pa.2000); Reilly v. Gould, Inc., 965 F.Supp. 588, 596 (M.D. Pa.1997); Clay v. Am. Tobacco Co., 188 F.R.D. 483 (S.D. 111.1999). The initial inquiry on class definition is distinct from the analysis required by Federal
-7-

Rule of Civil Procedure 23. See,~, Sanneman v. Chrysler Corp., 191 F.R.D. 441, 446 n. 8 (E.D. Pa.2000).
The four prerequisites to a class action, under Federal Rule of Civil Procedure 23(a), are: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. As a shorthand, courts regularly refer to the prerequisites as numerosity, commonality, typicality, and adequacy of representation. See,~, In re Warfarin Sodium Antitrust Litig., 391 F.3d 516,527 (3d Cir.2004); Georgine v. Amchem Prods., Inc., 83 F.3d 610, 624 (3d Cir .1996), affd sub nom. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997). All four Rule 23(a) prerequisites for class certification serve as "guideposts for determining whether maintenance of a class action is economical and whether the named plaintiff s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Amchem, 521 U.S. at 626.
Plaintiff s proposed class consists of all persons who are currently or will be imprisoned in the Special Management Unit ("SMU") at USP-Lewisburg, pursuant
-8-

to the unconstitutional policy of placing hostile inmates in double cells or recreational cages without taking any reasonable measures to protect the inmates from inmate-on-inmate violence, and using punitive restraints to enforce this policy. This class definition is untenable because it is not objectively, reasonably ascertainable.
As noted above, "[c]lass certification presupposes the existence of an actual 'class'." White v. Williams, 208 F.R.D. 123, 129 (D .N.J. 2002) (quoting In re Sch. Asbestos Litig., 56 F.3d 515,519 (3d Cir.1995)). A "proposed class must be sufficiently identifiable" and it must be "administratively feasible to determine whether a given individual is a member of the class." Id. (quoting Mueller v. CBS. Inc., 200 F.R.D. 227, 233 (W.D. Pa.2001)). See also Kline v. Sec. Guards. Inc., 196 F.R.D. 261, 266 (E.D. Pa.2000) (holding that plaintiffs must minimally define the class "in a way that enables the court to determine whether an individual is a class member"). This consideration necessitates that class membership be defined in an "objective manner." See,~, Kemblesville HHMO Center. LLC v. Landhope Realty Co., 2011 WL 3240779, 4 (E.D. Pa.2011) (quoting Rowe v. E .1. Dupont De Nemours & Co., 262 F.R.D. 451, 455 (D. N.J. 2009) (citing Bentley v. Honeywell Int'l Inc., 223 F.R.D. 471,477 (S.D. Ohio 2004)).
-9-

, . . . - - - - - - - - - - - - - - ------- ------
Thus, certification is denied when determining membership in the class essentially requires a mini-hearing as to each prospective class member. Id. (citing Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437, 478 (D. N.J. 2009) (citing Forman v. Data Transfer. Inc., 164 F.R.D. 400, 403 (E.D. Pa.1995)). See also,~, Mann v. TD Bank, N.A., 2010 WL 4226526, *1 (D. N.J. Oct.20, 2010) (concluding putative class ran afoul of requirement that it "be reasonably ascertainable" where court "would have to hear anecdotal evidence from each prospective class member" to determine membership under proposed definition); Kondratick v. Beneficial Consumer Disc. Co., 2006 WL 305399, *7 (E.D. Pa. Feb.8, 2006) (holding that "[t]o determine if an individual is a class member, a court must be able to do so by reference to the class definition"); Solo v. Bausch & Lomb Inc., 2009 WL 4287706, (D. S.C. Sept.25, 2009) (class not appropriate for certification where determining class membership would require "fact-intensive mini-trials,,).4
4See also Allen-Wright v. Allstate Ins. Co., 2008 WL 5336701 (E.D. Pa. Dec.17, 2008) (identifying problems with a class definition that required case-by-case factual determination); Forman v. Data Transfer, Inc., 164 F.R.D. 400,403 (E.D. Pa.1995) (same).
The Court does proceed to resolve factual or legal disputes relevant to class certification, even when there is "[a]n overlap between a class certification requirement and the merits of a claim." Hydrogen Peroxide, 552
(continued ... )

Moreover, courts have denied certification where the putative class "contains members lacking Article III standing," thus requiring any putative class to be "defined in such a way that anyone within it would have standing." Denney v. Deutsche Bank AG, 443 F.3d 253,264 (2d Cir. 2006) (affirming the denial ofa plaintiff class because the definition of the class was "so amorphous and diverse" that it was not "reasonably clear that the proposed class members have all suffered a constitutional or statutory violation warranting some relief') (citing Adashunas v. Negley, 626 F.2d 600,604 (7th Cir. 1980»; Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289, 334 (S.D. N.Y. 2003) (noting that "each member of the class must have standing with respect to injuries suffered as a result of defendants' actions").
Courts likewise have held that a class definition is overly broad where the class encompassed persons who had not suffered any injury. See also Owen v.
4( ... continued)
F.3d at 316, 318 (cited in In re Schering Plough Corp. ERISA Litigation, 589 F.3d 585, 600 (3d Cir.2009». Under this class definition, however, the contemplated threshold determinations involve numerous potentially disparate merits-based inquiries, and-as noted above-the duty of the Court to make threshold legal and factual determinations to decide class certification does not extend so far.
-11-

Regence Bluecross Blueshield, 388 F.Supp. 2d 1318,1334 (D. Utah 2005) ("[T]he proposed definition of the class is overbroad because many of the proposed class members have suffered no damages."); Zapka v. Coca-Cola Co., 2000 WL 1644539, at *3 (N.D. Ill. Oct.27, 2000) (holding class definition improper where it included individuals who were not harmed); Canady v. Allstate Ins. Co., 1997 WL 33384270 (W.D. Mo. June 19, 1997) ("Because the court cannot accept plaintiffs' blanket contention that every member of the proposed broad class has allegedly suffered harm as a result of the defendants' wrongdoing, the court must find that the class definition is overbroad.").
Even where all class members have been injured, a class definition may be overly broad if the question of liability is specific to each class member. For example, in Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124 (3d Cir. 2000), the Court of Appeals affirmed the district court's finding that the class definition was overly broad because the determination of actual liability with respect to any class member would require an individualized inquiry into the equities of each claim. Id. at 137-38.
Here, the Court notes, initially, that Plaintiffs request to certify a class consisting of all persons who are currently or will be imprisoned in the SMU at
-12-

..._,., - - - - -- ----,
USP-Lewisburg, is overbroad, as it clearly encompasses persons who have not suffered any injury. While Plaintiff alleges, and Defendants do not dispute, that there are approximately 1,384 inmates at USP-Lewisburg, and 1,000 to 1,100 in the SMU program, Plaintiff concludes, without any substantiating documentation, that "more than 1000 persons in the SMU are likely currently in double cells or recreation cages, any number of which may be placed with known hostile inmates, or subject to the threat of such placement, without any reasonable precautions in place to protect the inmates from inmate-on-inmate violence." (Doc. 14, Brief in Support). Plaintiffs numbers or estimates, however, do not distinguish between inmates with hostile cellmates, and inmates without hostile cellmates. As such, the proposed definition is amorphous and vague. Plaintiff, however, fares no better in breaking the class down into three subclasses, according to the specific harm alleged.
To the extent that Plaintiff seeks to certify a class based on inmates housed pursuant to a policy of housing inmates with a "hostile" inmate, the determination of class membership under this definition would require this Court to adjudicate, on a person-by-person basis, whether each proposed class member was placed with an inmate that prison officials knew, or should have known, posed a threat to that
-13-

inmate.5 That is, class membership would not be ascertainable without the
imposition of "serious administrative burdens incongruous with the efficiencies
expected in a class action." Sanneman v. Chrysler Corp., 191 F.R.D. 441,446 (E.D.
Pa. 2000) (concluding certification inappropriate where determining class
membership would create such burdens). Plaintiff attempts to define the class by
stating that "from 2008 until July 2011, there have been 272 reported incidents of
inmate on inmate violence". (See Doc. 1, complaint at ~ 53). However, this
statement, in addition to being unsubstantiated, fails to identify if these incidents
were solely confined to the SMU, or, elsewhere within USP-Lewisburg.
Furthermore, Plaintiff seeks to certify the class as "all persons who are currently or
will be imprisoned in the SMU at USP-Lewisburg, with the class period
5The underlying Constitutional analysis for membership in the class is pursuant to the Eighth Amendment prohibition of cruel and unusual punishment. To succeed on such an Eighth Amendment claim, a prisoner must show that: (1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the defendant was "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists"; (3) the defendant actually drew this inference; and (4) the defendant deliberately disregarded the apparent risk. Farmer v. Brennan, 511 U.S. 825, 828 (1994) (quoting Wilson v Seiter, 501 U.S. 294, 297, 302-03(1991); Hudson v. McMillian, 503 U.S. 1, 5 (1992)).
-14-

commencing from the filing of the above captioned action". (emphasis added)
Thus, the 272 incidents Plaintiff references are outside the time period for the
proposed class.
Certifying a class pursuant to Plaintiff s second harm, requires a
determination, that pursuant to prison policy, a class member is not only housed
with a hostile inmate, but is assaulted by the hostile inmate, and prison officials fail
to intervene.6 Once again, this is a very fact specific determination for class
6 In Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002), the United States Court of Appeals for the Third Circuit held that corrections officers-like police officers-may be liable under § 1983 for failing to intervene in an instance of excessive force if they had a reasonable opportunity to do so. Moreover, the court held that "neither rank nor supervisory status is a factor in assessing whether [a corrections officer] had 'a realistic opportunity to intervene.' " Id. at 652 (quoting Miller v. Smith, 220 F.3d 491,495 (7th Cir.2000». Accordingly, following Smith, the Eighth Amendment is implicated only in a narrow class of failure-to-intervene claims. To state a valid cause of action "in a case where an inmate claims an officer had a duty to take reasonable steps to protect a victim from another officer's use of excessive force, the inmate must prove that (1) the officer had a duty to intervene; (2) the officer had the opportunity to intervene; and (3) the officer failed to intervene. Smith v. Mensinger, 293 F.3d 641,650-51 (3d Cir. 2002)." Knauss v. Shannon, 1:CV-08-1698, 2010 WL 569829 (M.D. Pa. Feb.12, 2010). "Additionally, it is plaintiffs burden to adduce evidence of [these] requirements. Gainor v. Douglas County, Ga., 59 F.Supp. 2d 1259, 1289 (N.D. Ga. 1998) ('plaintiff must proffer evidence that the officer in question had a reasonable opportunity to intervene.')." Yarnall v. Mendez, 509 F.Supp. 2d
(continued ... )
-15-

--_.._-_..._ _ ....• - - - -- - -- - - - - - - - - ,
membership. Although, in the instant action, Plaintiff alleges that he was subjected to this very policy, and references the civil action of another inmate7, who claims to have been subjected to the same policy of housing an inmate with a hostile inmate, with a resulting assault and failure of corrections officials to intervene, the record fails to adequately evidence that a significant number of putative class members would be in the same situation as the proposed representative, and meet Plaintiffs proposed class definition.
Finally, Plaintiff seeks to certify a class based on inmates who, pursuant to a prison practice, are placed in painful punitive restraints for refusing a dangerous cell assignment. Initially, the Court notes that Shelton does not pursue an Eighth
6( ... continued) 421, 433 (D. Del. 2007). Furthermore, with respect to the first essential element of this particular constitutional tort-the defendant's legal duty to intervene-courts construe this requirement narrowly and have held that if the defendant "had no special relationship with plaintiff at that time, he had no duty to intervene to protect the constitutional rights of plaintiff." Fields v. Blake, 349 F.Supp. 2d 910,921 (E.D. Pa. 2004).
7Plaintiff references inmate Ronnie G. Wiggins, see Wiggins v. Bledsoe, 3:11-CV-1298 (M.D. Pa. July 12,2011), who has filed a separate complaint, and claims to have also suffered extensive injuries as a result of Defendants' policy.
-16-

Amendment claim for unconstitutionally applied restraints. Because Plaintiff was never placed in restraints, he fails to share a common issue with any other inmate. Regardless of this fact, Plaintiff again seeks to certify a class that would require a very fact specific inquiry as to its membership. Once again, class membership would depend on a determination as to if a class member is presented with a hostile inmate, and refuses, and if the class member was then improperly placed in some type of restraint as a result of his refusal, and was injured by the use of the restraints. "If the court is required to conduct individual inquiries to determine whether each potential class member falls within the class, the court should deny certification." Ramirez v. Palisades Collection, LLC, 250 F.R.D. 366, 369 (N.D. Ill. 2008).
Because it would be impossible to definitively identify class members prior to individualized fact-finding and litigation, the Court need not consider whether the class meets the requirements of Rule 23(a) and 23(b). Shelton's motion for class certification will be denied.
A separate Order will be issued. ~ /'" ~~ . ..~ ... ~.!=+! '~
Dated: October 24, 2012 United States District Judge
-17-

 
 Case 3:11-cv-01618-WJN-MCC Document 71 Filed 03/02/15 Page 1 of 2
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 12-4226 _____________
NORMAN SHELTON
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

Case 3:11-cv-01618-WJN-MCC Document 71 Filed 03/02/15 Page 2 of 2
(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 JUDGMENT
This cause came on to be heard on the record from the United States District Court for the Middle District of Pennsylvania and was argued by counsel on September 11, 2013.
On consideration whereof, it is hereby ORDERED AND ADJUDGED by this Court that the orders of the said District Court entered October 24, 2012, denying class certification and granting summary judgment to defendants on the Eighth Amendment claim are hereby vacated and the matter is remanded for further proceedings consistent with the accompanying opinion. The order dismissing Shelton’s claim under the Federal Tort Claims Act for lack of jurisdiction based on Shelton’s failure to properly exhaust that claim is hereby affirmed.
All of the above in accordance with the opinion of this Court. Each party to bear their own costs.
ATTEST: s/Marcia M. Waldron Clerk Dated: January 7, 2015

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 1 of 25
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;

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 2 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 3 of 25
____________
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 4 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 5 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 6 of 25
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. WalMart 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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 7 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 8 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 9 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 10 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 11 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 12 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 13 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 14 of 25
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-oninmate 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 56. 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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 15 of 25 inappropriate here, it is also important to note that the district court erred by narrowing the definition of the proposed class.
15

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 16 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 17 of 25
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, 15758 (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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 18 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 19 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 20 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 21 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 22 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 23 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 24 of 25
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

Case 3:11-cv-01618-WJN-MCC Document 71-1 Filed 03/02/15 Page 25 of 25
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

 
 Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 1 of 22
CLOSED,PRISNR,R/R,STANDARD
United States District Court Middle District of Pennsylvania (Scranton) CIVIL DOCKET FOR CASE #: 3:11−cv−01618−WJN

Shelton v. Bledsoe et al Assigned to: Honorable William J. Nealon Case in other court: Third Circuit, 12−04226 Cause: 28:2674 Federal Tort Claims Act
Plaintiff
Norman Shelton 45969−066 USP Atwater P. O. Box 019001 Atwater, CA 95301

Date Filed: 08/29/2011 Date Terminated: 07/20/2017 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Christine C. Levin Dechert LLP 2929 Arch Street Philadelphia, PA 19104 (215) 994−4000 Email: christine.levin@dechert.com ATTORNEY TO BE NOTICED
David John Stanoch Dechert LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 215−994−2812 Email: david.stanoch@dechert.com TERMINATED: 02/06/2015 ATTORNEY TO BE NOTICED
Deborah M. Golden PO Box 1346 Suite 400 Washington, DC 20013 202−630−0332 Email: deb.golden@gmail.com TERMINATED: 04/13/2017 ATTORNEY TO BE NOTICED
Eric L Mackie Dechert LLP 2929 Arch Street Philadelphia, PA 19104 215−994−2423 Email: eric.mackie@dechert.com TERMINATED: 09/22/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Francis J Dermody , III Dechert LLP Circa Centre 2929 Arch Street Philadelphia, PA 19104 215 994−4000 Email: francis.dermody@dechert.com TERMINATED: 09/19/2016 PRO HAC VICE ATTORNEY TO BE NOTICED
Ivy A. Finkenstadt Washington Lawyers' Committee 11 Dupont Circle, N.W.

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 2 of 22
Suite 400 Washington, DC 20036 (202) 319−1000 Fax: (202) 319−1010 Email: ivy_finkenstadt@washlaw.org TERMINATED: 10/01/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer L Burdick Dechert LLP 2929 Arch Street Philadelphia, PA 19104 215 994−2812 Email: jennifer.burdick@dechert.com TERMINATED: 10/24/2013 ATTORNEY TO BE NOTICED
Jennifer J. Tobin Tobin Law Office, LLC 702 N. 3rd Street #71 Philadelphia, PA 19123 267−258−8918 Email: jtobin0913@gmail.com TERMINATED: 06/04/2013 ATTORNEY TO BE NOTICED
Marybeth Walsh Institutional Law Project/Community Justice Project 1705 Allegheny Building Pittsburgh, PA 15219 412.434.6002 Email: mwalsh@pailp.org TERMINATED: 10/19/2012 ATTORNEY TO BE NOTICED
Rose Marie C Wong Dechert LLP Cira Centre 2929 Arch Street Philadelphia, PA 19103 215−994−2052 Email: rosey.wong@dechert.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ross A MacConnell Dechert LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 215−994−2091 Email: ross.macconnell@dechert.com PRO HAC VICE ATTORNEY TO BE NOTICED
Sean P McConnell Duane Morris LLP 30 S. 17th Street Philadelphia, PA 19380 215−979−1947 Email: spmcconnell@duanemorris.com TERMINATED: 02/06/2015

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 3 of 22
ATTORNEY TO BE NOTICED
Su Ming Yeh Pennsylvania Institutional Law Project Cast Iron Bldg. 718 Arch Street Suite 304 South Philadelphia, PA 19106 215−925−2966 Email: smyeh@pailp.org ATTORNEY TO BE NOTICED
Tiffany E Engsell Dechert LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104 215−994−2907 Email: tiffany.engsell@dechert.com PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Brian A. Bledsoe Warden of USP Lewisburg

represented by Anthony Scicchitano US Attorney's Office, Eastern District of Pennsylvania 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 215−861−8380 Email: anthony.scicchitano@usdoj.gov TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED
Anthony D. Scicchitano US Attorney's Office, Eastern District of Pennsylvania 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 215−861−8380 Email: anthony.scicchitano@usdoj.gov TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED
Michael Butler United States Attorney's Office 228 Walnut Street Suite 220 Harrisburg, PA 17108 717−221−4482 Fax: 17172212246 Email: Michael.J.Butler@usdoj.gov ATTORNEY TO BE NOTICED
Michael J. Butler United States Attorney's Office−MDPA 228 Walnut Street, Ste 220 Harrisburg, PA 17108 717−221−4482 Fax: 17172212246 Email: Michael.J.Butler@usdoj.gov ATTORNEY TO BE NOTICED

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 4 of 22

Samuel Dalke US Attorney's Office, Middle District of PA − Prisoner 228 Walnut Street, Suite 220 P.O. Box 11754 Harrisburg, PA 17108 Email: samuel.s.dalke@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Thomas R. Kane Acting Director of the Bureau of Prisons (BOP)

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Joseph Norwood Regional Director of the Northeast Region of the BOP

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Chuck Maiorana Associate Warden at USP Lewisburg

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address)

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 5 of 22

TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Krista Rear Associate Warden at USP Lewisburg

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
J. Dunkelberger Case Manager Coordinator at USP Lewisburg

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 6 of 22

John Adami Unit Manager at USP Lewisburg

Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
J. Fosnot Acting Captain of Security at USP Lewisburg

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
F. Perrin Corrections Officer at USP Lewisburg with ranks of Lieutenant and Special Investigation Supervisor

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 7 of 22

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
S.V. Heath Corrections Officer at USP Lewisburg with ranks of Lieutenant and Special Investigation Supervisor

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Nelson Drees Corrections Officer at USP Lewisburg with ranks of Lieutenant and Special Investigation Supervisor

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Whitaker Corrections Officer at USP Lewisburg TERMINATED: 12/07/2016

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address)

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 8 of 22

ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Defendant
Rupert Corrections Officer at USP Lewisburg

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Zelder Corrections Officer at USP Lewisburg

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Roop Corrections Officer at USP Lewisburg

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 9 of 22

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Wells Corrections Officer at USP Lewisburg TERMINATED: 12/07/2016

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Defendant
Potter Corrections Officer at USP Lewisburg

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kulago Corrections Officer at USP Lewisburg

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 10 of 22

ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Fisher Corrections Officer at USP Lewisburg

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Moffit Corrections Officer at USP Lewisburg

represented by Anthony Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
Combe Corrections Officer at USP Lewisburg

represented by Anthony Scicchitano (See above for address)

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 11 of 22

TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant John Doe Corrections Officers

represented by Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Defendant
The United States of America through its Department, The Federal Bureau of Prisons

represented by Anthony D. Scicchitano (See above for address) TERMINATED: 10/03/2016 ATTORNEY TO BE NOTICED

Michael Butler (See above for address) ATTORNEY TO BE NOTICED

Michael J. Butler (See above for address) ATTORNEY TO BE NOTICED

Samuel Dalke (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/30/2011
08/30/2011 08/31/2011 08/31/2011 09/08/2011

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $350, Receipt Number 0314−2269793), filed by Norman Shelton. (Attachments: # 1 Civil Cover Sheet)(ao, ) (Entered: 08/30/2011)
Summons Issued as to All Defendants and provided to Atty Stanoch for service on Defendant(s). (ao, ) (Entered: 08/30/2011)
2 NOTICE of Appearance by Marybeth Walsh on behalf of Norman Shelton (Walsh, Marybeth) (Entered: 08/31/2011)
3 NOTICE of Appearance by Jennifer J. Tobin on behalf of Norman Shelton (Tobin, Jennifer) (Entered: 08/31/2011)
4 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Ivy A. Finkenstadt on behalf of Norman Shelton Attorney Ivy Finkenstadt is seeking special admission. Filing fee $ 50, receipt number 0314−2278208.. (Finkenstadt, Ivy) (Entered: 09/08/2011)

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 12 of 22

09/09/2011 09/09/2011 10/13/2011 10/13/2011 10/21/2011 11/01/2011
11/01/2011 11/01/2011 12/09/2011 12/09/2011 12/09/2011 12/09/2011
12/09/2011 12/12/2011 12/12/2011

DOCKET ANNOTATION: District of Columbia Bar Record verified for Ivy Finkenstadt. (ao, ) (Entered: 09/09/2011)
5 SPECIAL ADMISSIONS FORM APPROVED as to Ivy FinkenstadtSigned by Honorable William J. Nealon on 9/9/11. (ao, ) (Entered: 09/09/2011)
6 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Francis J Dermody, III on behalf of Norman Shelton Attorney Francis Dermody is seeking special admission. Filing fee $ 50, receipt number 0314−2304263.. (Dermody, Francis) (Entered: 10/13/2011)
7 SPECIAL ADMISSIONS FORM APPROVED as to Francis DermodySigned by Honorable William J. Nealon on 10/13/11. (lh, ) (Entered: 10/13/2011)
DOCKET ANNOTATION: PA State Bar record verified for Francis J. Dermody. (ao, ) (Entered: 10/21/2011)
8 WAIVER OF SERVICE Returned by Norman Shelton. John Adami waiver sent on 10/12/2011, answer due 12/12/2011; Brian A. Bledsoe waiver sent on 10/12/2011, answer due 12/12/2011; Combe waiver sent on 10/12/2011, answer due 12/12/2011; Nelson Drees waiver sent on 10/12/2011, answer due 12/12/2011; J. Dunkelberger waiver sent on 10/12/2011, answer due 12/12/2011; Fisher waiver sent on 10/12/2011, answer due 12/12/2011; J. Fosnot waiver sent on 10/12/2011, answer due 12/12/2011; S.V. Heath waiver sent on 10/12/2011, answer due 12/12/2011; John Doe Corrections Officers waiver sent on 10/12/2011, answer due 12/12/2011; Thomas R. Kane waiver sent on 10/12/2011, answer due 12/12/2011; Kulago waiver sent on 10/12/2011, answer due 12/12/2011; Chuck Maiorana waiver sent on 10/12/2011, answer due 12/12/2011; Moffit waiver sent on 10/12/2011, answer due 12/12/2011; Joseph Norwood waiver sent on 10/12/2011, answer due 12/12/2011; F. Perrin waiver sent on 10/12/2011, answer due 12/12/2011; Potter waiver sent on 10/12/2011, answer due 12/12/2011; Krista Rear waiver sent on 10/12/2011, answer due 12/12/2011; Roop waiver sent on 10/12/2011, answer due 12/12/2011; Rupert waiver sent on 10/12/2011, answer due 12/12/2011. (Dermody, Francis) (Entered: 11/01/2011)
9 WAIVER OF SERVICE Returned by Norman Shelton. Wells waiver sent on 10/12/2011, answer due 12/12/2011; Whitaker waiver sent on 10/12/2011, answer due 12/12/2011; Zelder waiver sent on 10/12/2011, answer due 12/12/2011. (Dermody, Francis) (Entered: 11/01/2011)
10 SUMMONS Returned Executed by Norman Shelton. The United States of America through its Department, The Federal Bureau of Prisons served on 10/12/2011, answer due 12/12/2011. (Dermody, Francis) (Entered: 11/01/2011)
11 MOTION to Exceed Page Limitation by Norman Shelton.(Burdick, Jennifer) (Entered: 12/09/2011)
12 BRIEF IN SUPPORT re 11 MOTION to Exceed Page Limitation filed by Norman Shelton.(Burdick, Jennifer) (Entered: 12/09/2011)
13 MOTION to Certify Class by Norman Shelton. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order)(Burdick, Jennifer) (Entered: 12/09/2011)
14 BRIEF IN SUPPORT re 13 MOTION to Certify Class filed by Norman Shelton. (Attachments: # 1 Exhibit(s) Table of Contents for Exhibits, # 2 Exhibit(s) Exhibit A, # 3 Exhibit(s) Exhibit B, # 4 Exhibit(s) Exhibit C, # 5 Exhibit(s) Exhibit D, # 6 Exhibit(s) Exhibit E, # 7 Exhibit(s) Exhibit F, # 8 Exhibit(s) Exhibit G)(Burdick, Jennifer) (Entered: 12/09/2011)
15 AFFIDAVIT of Service for Motion for Class Certification, filed by Norman Shelton., CERTIFICATE OF SERVICE by Norman Shelton re 13 MOTION to Certify Class, 14 Brief in Support, (Burdick, Jennifer) (Entered: 12/09/2011)
SPECIAL ADMISSION FORM SENT to Jennifer L. Burdick. (jc) (Entered: 12/12/2011)
16 MOTION for Extension of Time to File United States' Motion for Enlargement of Time to file Defendants' response to the allegations of the Complaint by The United States of America through its Department, The Federal Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Butler, Michael)

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 13 of 22

12/15/2011 12/15/2011 12/27/2011 01/09/2012 02/10/2012
02/10/2012
02/21/2012 02/21/2012 02/22/2012
02/22/2012
02/22/2012 02/23/2012 02/23/2012 02/24/2012

(Entered: 12/12/2011)
17 ORDER granting 16 Motion for Extension of Time to File a responsive pleading to the allegations of the complaint. Defendants may file a responsive pleading on or before February 10, 2012.Signed by Honorable William J. Nealon on 12/15/11 (lh, ) (Entered: 12/15/2011)
18 ORDER granting 11 Motion for Leave to File Excess Pages. Defendants' brief in support of their motion for class certification, filed on December 9, 2011, and not exceeding forty (40) pages, is accepted as filed.Signed by Honorable William J. Nealon on 12/15/11 (lh, ) (Entered: 12/15/2011)
19 Unopposed MOTION for Extension of Time to File Brief in Opposition to Plaintiff's Motion to Certify Class by The United States of America through its Department, The Federal Bureau of Prisons. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Butler, Michael) (Entered: 12/27/2011)
20 ORDER granting 19 Motion for Extension of Time to File Brief in Opposition to pltf's Motion for Class Certification. Defts may file their brief in opposition on or before 2/10/12.Signed by Honorable William J. Nealon on 1/9/12 (ao, ) (Entered: 01/09/2012)
21 BRIEF IN OPPOSITION re 13 MOTION to Certify Class filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. (Attachments: # 1 Table of Authorities)(Butler, Michael) (Entered: 02/10/2012)
22 MOTION to Dismiss, MOTION for Summary Judgment by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Butler, Michael) (Entered: 02/10/2012)
23 Unopposed MOTION for Extension of Time to March 12, 2012 by Norman Shelton. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Burdick, Jennifer) (Entered: 02/21/2012)
24 STIPULATION to Dismiss Counts One and Two of the Complaint by Norman Shelton, filed by Norman Shelton.(Dermody, Francis) (Entered: 02/21/2012)
25 MOTION to Exceed Page Limitation by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Butler, Michael) (Entered: 02/22/2012)
26 BRIEF IN SUPPORT re 25 MOTION to Exceed Page Limitation filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder.(Butler, Michael) (Entered: 02/22/2012)
28 DOCUMENT SEALED pursuant to Court Order (Motion to Seal). (Attachments: # 1 Attachment B, # 2 Attachment ff, # 3 Proposed Order) (pjr) (Entered: 02/23/2012)
27 ORDER granting 23 Motion to Extend Time. Plaintiff may file a reply to Defendents' Brief in opposition to Pltff's Motion for Certifcation of Class on or before March 12, 2012. Signed by Honorable William J. Nealon on 2/23/12 (lh, ) (Entered: 02/23/2012)
29 DOCUMENT SEALED pursuant to Court Order (Statement In Support Of Defendants' Motion To Seal).(pjr) (Entered: 02/23/2012)
30 STATEMENT OF FACTS filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago,

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 14 of 22

02/24/2012
03/02/2012 03/02/2012 03/12/2012 03/12/2012 03/19/2012 03/22/2012
03/23/2012 03/26/2012 03/26/2012
03/28/2012 04/02/2012 04/03/2012 04/11/2012

Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. (Attachments: # 1 Exhibit(s) Part 1, # 2 Exhibit(s) Part 2, # 3 Exhibit(s) Part 3)(Butler, Michael) (Entered: 02/24/2012)
31 BRIEF IN SUPPORT re 22 MOTION to Dismiss MOTION for Summary Judgment filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. (Attachments: # 1 Table of Authorities, # 2 Unpublished Opinion(s))(Butler, Michael) (Entered: 02/24/2012)
32 ORDER: Pltf shall file a brief in opposition to the Motion to Seal w/in ten (10) days of the date of this Order; Defts shall file a reply brief within ten (10) days of receipt of Pltf's opposition brief; Signed by Honorable William J. Nealon on 03/02/12. (ep, ) (Entered: 03/02/2012)
33 ORDER granting 25 Motion for Leave to File Excess Pages Signed by Honorable William J. Nealon on 03/02/12 (ep, ) (Entered: 03/02/2012)
34 REPLY BRIEF re 13 MOTION to Certify Class filed by Norman Shelton. (Attachments: # 1 Appendix)(Dermody, Francis) (Entered: 03/12/2012)
35 RESPONSE in Opposition Plaintiff's Brief in Opposition to Defendants' Motion to Seal Documents, BRIEF by Norman Shelton., filed by Norman Shelton. (Attachments: # 1 Word Count Certificate, # 2 Proposed Order)(Dermody, Francis) (Entered: 03/12/2012)
36 MOTION for Extension of Time to Enlargement of Time to Respond to Motion to Dismiss and for Summary Judgment by Norman Shelton. (Attachments: # 1 Certificate of Concurrence)(Burdick, Jennifer) (Entered: 03/19/2012)
37 REPLY BRIEF im Support of Motion to Seal by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. 35 Brief in Opposition, Defendants' Reply Brief in Support of Motion to Seal. (Attachments: # 1 Unpublished Opinion(s))(Butler, Michael) Modified on 3/26/2012 (ao, ). (Entered: 03/22/2012)
38 MOTION to Exceed Page Limitation by Norman Shelton. (Attachments: # 1 Memorandum of Law, # 2 Certificate of Concurrence, # 3 Service)(Burdick, Jennifer) (Entered: 03/23/2012)
39 ANSWER TO STATEMENT OF FACTS re 30 Statement of Facts, filed by Norman Shelton.(Dermody, Francis) (Entered: 03/26/2012)
40 BRIEF IN OPPOSITION re 22 MOTION to Dismiss MOTION for Summary Judgment filed by Norman Shelton. (Attachments: # 1 Appendix, # 2 Declaration of Stephen D. Brown, Esquire, # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s), # 8 Proposed Order)(Dermody, Francis) (Entered: 03/26/2012)
41 MOTION to Consolidate Cases by Norman Shelton. (Attachments: # 1 Memorandum in Support of Motion to Consolidate, # 2 Certificate of Nonconcurrence, # 3 Proposed Order, # 4 Unpublished Opinion(s))(Finkenstadt, Ivy) (Entered: 03/28/2012)
42 BRIEF IN SUPPORT re 41 MOTION to Consolidate Cases filed by Norman Shelton. (Attachments: # 1 Unpublished Opinion(s))(Finkenstadt, Ivy) (Entered: 04/02/2012)
43 BRIEF IN SUPPORT re 38 MOTION to Exceed Page Limitation filed by Norman Shelton.(Burdick, Jennifer) (Entered: 04/03/2012)
44 REPLY BRIEF re 22 MOTION to Dismiss MOTION for Summary Judgment filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, The United States of America through

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 15 of 22

04/12/2012 04/19/2012
04/25/2012 05/07/2012 05/31/2012 07/17/2012 09/27/2012 10/16/2012 10/22/2012 10/24/2012 10/24/2012 10/24/2012 10/24/2012
11/09/2012
11/20/2012 12/03/2012 05/30/2013

its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder.(Butler, Michael) (Entered: 04/11/2012)
45 ORDER Plaintiff's motions 36 38 are granted. Plaintiff's brief in opposition 40 filed on March 26, 2012 and not exceeding thirty pages is accepted as timely filed. Signed by Honorable William J. Nealon on 4/12/12 (ts, ) (Entered: 04/12/2012)
46 BRIEF IN OPPOSITION re 41 MOTION to Consolidate Cases filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder.(Butler, Michael) (Entered: 04/19/2012)
47 REQUEST by James Murray for a a copy of the docket sheet. (lh, ) (Entered: 04/25/2012)
48 REPLY BRIEF re 41 MOTION to Consolidate Cases filed by Norman Shelton.(Finkenstadt, Ivy) (Entered: 05/07/2012)
49 Letter from James Murray at FCI−Lewisburg dated 5/29/12 re: prison conditions and referencing this pending case. (lh, ) (Entered: 05/31/2012)
50 Letter from James Murray dtd 7/15/12 requesting Order of Court Appointing or Authorizing James Murray as a class representative. (ao, ) (Entered: 07/17/2012)
51 NOTICE by Norman Shelton of Attorney Withdrawal (Finkenstadt, Ivy) (Entered: 09/27/2012)
52 NOTICE by Norman Shelton of Attorney Withdrawal (Walsh, Marybeth) (Entered: 10/16/2012)
53 ORDER denying pltf's 41 Motion to Consolidate Cases Signed by Honorable William J. Nealon on 10/22/12 (ao) (Entered: 10/22/2012)
54 MEMORANDUM: (Order to follow as separate docket entry) Signed by Honorable William J. Nealon on 10/24/12. (lh) (Entered: 10/24/2012)
55 ORDER denying 13 Motion to Certify Class. Signed by Honorable William J. Nealon on 10/24/12 (lh) (Entered: 10/24/2012)
56 MEMORANDUM [Order to follow as a separate entry]Signed by Honorable William J. Nealon on 10/24/12. (ts) (Entered: 10/24/2012)
57 ORDER DISMISSING CASE 1) Defendants' motion to dismiss and for summary judgment 22 is granted. The Clerk of Court is directed to enter judgment in favor of the Defendants and against Plaintiff on all claims. 2) The Clerk of Court is directed to close this case. 3) Any appeal from this order will be deemed frivolous, not taken in good faith and lacking probable cause. Signed by Honorable William J. Nealon on 10/24/12. (ts) (Entered: 10/24/2012)
58 NOTICE OF APPEAL in PRISONER Case as to 57 Order (memorandum filed previously as separate docket entry), Order Dismissing Case,, 55 Order on Motion to Certify Class by Norman Shelton. Filing Fee and Docket Fee PAID. Filing fee $ 455, receipt number 0314−2624755. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (Dermody, Francis) (Entered: 11/09/2012)
59 USCA Case Number 12−4226 for 58 Notice of Appeal, filed by Norman Shelton. USCA Case Manager Maria Reyes (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF). (Reyes, Maria) (Entered: 11/30/2012)
60 TRANSCRIPT PURCHASE ORDER REQUEST by Norman Shelton (Dermody, Francis) (Entered: 12/03/2012)
61 NOTICE of Appearance by Su Ming Yeh on behalf of Norman Shelton (Yeh, Su Ming) (Entered: 05/30/2013)

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 16 of 22

05/30/2013 10/24/2013 01/07/2015 01/20/2015 02/06/2015 02/06/2015 02/12/2015
02/13/2015 02/17/2015 02/17/2015 02/20/2015 03/02/2015 03/05/2015
03/06/2015 03/13/2015
03/13/2015
03/18/2015
04/10/2015 04/13/2015

62 NOTICE by Norman Shelton of Attorney Withdrawal (Tobin, Jennifer) (Entered: 05/30/2013)
63 NOTICE by Norman Shelton of Attorney Withdrawal (Burdick, Jennifer) (Entered: 10/24/2013)
64 JUDGMENT of USCA (certified copy) as to 58 Notice of Appeal, filed by Norman Shelton (Reyes, Maria) (Entered: 01/07/2015)
65 MOTION to Intervene by Prospective Class Members.(ao) (Entered: 01/20/2015)
66 NOTICE by Norman Shelton Notice of Attorney Withdrawal (Stanoch, David) (Entered: 02/06/2015)
67 NOTICE by Norman Shelton Attorney Withdrawal (McConnell, Sean) (Entered: 02/06/2015)
68 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Christine C. Levin on behalf of Norman Shelton Attorney Christine Levin is seeking special admission. Filing fee $ 50, receipt number 0314−3353261.. (Levin, Christine) (Entered: 02/12/2015)
DOCKET ANNOTATION: Attorney Christine Levin is active with the PA state bar. (lh) (Entered: 02/13/2015)
69 MOTION to Appear Pro Hac Vice − Attorney Eric Mackie is seeking special admission. Filing fee $ 50, receipt number 0314−3355959. by Norman Shelton.(Mackie, Eric) (Entered: 02/17/2015)
DOCKET ANNOTATION: Eric Mackie is active with the PA state bar. (lh) (Entered: 02/17/2015)
70 SPECIAL ADMISSIONS FORM APPROVED as to Eric MackieSigned by Honorable William J. Nealon on 02/18/15. (ep) (Entered: 02/20/2015)
71 MANDATE of USCA as to 58 Notice of Appeal, filed by Norman Shelton (Attachments: # 1 Opinion)(Reyes, Maria) (Entered: 03/02/2015)
72 ORDER REOPENING CASE, ORDER REFERRING CASE to Magistrate Judge Martin C. Carlson; 1) The Clerk is directed to reopen this action 2) In accordance with the provisions of 28 USC 636 the case is referred to Martin C. Carlson, United States Magistrate Judge, to conduct any and all pretrial proceedings and, at the conclusion thereof, submit a Report and Recommendation of final disposition with the Court. Signed by Honorable William J. Nealon on 3/5/15. (ts) (Entered: 03/05/2015)
73 SPECIAL ADMISSIONS FORM APPROVED as to Eric Mackie, Esq. Signed by Magistrate Judge Martin C. Carlson on March 6, 2015. (kjn) (Entered: 03/06/2015)
74 SCHEDULING ORDER: A Case Management Conference is set for 4/14/2015 at 10:00 AM before Magistrate Judge Martin C. Carlson. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on March 13, 2015. (kjn) (Entered: 03/13/2015)
75 ORDER re 65 Motion to Intervene − IT IS ORDERED that this motion is CLOSED without prejudice to future proceedings involving these inmates in the counseled case aimed at determining the proper scope of any proposed plaintiff class. Signed by Magistrate Judge Martin C. Carlson on March 13, 2015. (kjn) (Entered: 03/13/2015)
76 NOTICE of Appearance by Anthony D. Scicchitano on behalf of John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder (Scicchitano, Anthony) (Entered: 03/18/2015)
77 CASE MANAGEMENT PLAN by Norman Shelton. (Mackie, Eric) (Entered: 04/10/2015)
78 EXHIBIT JCMP Exhibits 1,2, and 3 by Norman Shelton re 77 Case Management Plan. (Mackie, Eric) (Entered: 04/13/2015)

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 17 of 22

04/13/2015 04/14/2015
04/27/2015 04/27/2015
05/06/2015 05/07/2015 05/11/2015 05/11/2015 05/14/2015 05/20/2015 05/27/2015 05/27/2015
05/27/2015

79 MOTION for Protective Order by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Wells, Whitaker, Zelder. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Proposed Order, # 6 Certificate of Nonconcurrence)(Butler, Michael) (Entered: 04/13/2015)
81 ORDER − IT IS HEREBY ORDERED THAT the parties shall file briefs in support of and opposition to the defendants motion for a protective order (Doc. 79.), and supplemental briefs relating to the defendants dispositive motion (Doc.22.), in accordance with the following schedule: 1. The defendants shall file their initial brief on or before Monday, April 27, 2015. 2. The plaintiff shall file a responsive brief on or before Monday, May 11, 2015. 3. The defendants shall be permitted to file a reply brief on or before Monday, May 27, 2015. Signed by Magistrate Judge Martin C. Carlson on April 14, 2015. (kjn) (Entered: 04/14/2015)
82 BRIEF IN SUPPORT re 79 MOTION for Protective Order filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Wells, Whitaker, Zelder. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s))(Butler, Michael) (Entered: 04/27/2015)
83 BRIEF IN SUPPORT re 22 MOTION to Dismiss MOTION for Summary Judgment filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Roop, Wells, Whitaker, Zelder. (Attachments: # 1 Certificate of Word Count, # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s))(Butler, Michael) (Entered: 04/27/2015)
84 Unopposed MOTION to Exceed Page Limitation by Norman Shelton.(Mackie, Eric) (Entered: 05/06/2015)
85 ORDER granting 84 Motion for Leave to File Excess Pages. The Pltf may file a brief which does not exceed 30 pages in length. Signed by Magistrate Judge Martin C. Carlson on May 7, 2015. (kjn) (Entered: 05/07/2015)
86 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Ross A MacConnell on behalf of All Plaintiffs Attorney Ross MacConnell is seeking special admission. Filing fee $ 50, receipt number 0314−3432005.. (MacConnell, Ross) (Entered: 05/11/2015)
87 BRIEF IN OPPOSITION re 79 MOTION for Protective Order , 22 MOTION to Dismiss MOTION for Summary Judgment filed by Norman Shelton.(Mackie, Eric) (Entered: 05/11/2015)
DOCKET ANNOTATION: Ross MacConnell is active with the PA state bar. (lh) (Entered: 05/14/2015)
88 SPECIAL ADMISSIONS FORM APPROVED as to Ross A. MacConnell, Esq. Signed by Magistrate Judge Martin C. Carlson on May 19, 2015. (kjn) (Entered: 05/20/2015)
89 REPLY BRIEF re 79 MOTION for Protective Order filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, Wells, Whitaker, Zelder. (Attachments: # 1 Unpublished Opinion(s))(Scicchitano, Anthony) (Entered: 05/27/2015)
90 REPLY BRIEF re 22 MOTION to Dismiss MOTION for Summary Judgment filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, Wells, Whitaker, Zelder. (Attachments: # 1 Table of Authorities, # 2 Unpublished Opinion(s), # 3 Exhibit(s))(Scicchitano, Anthony) (Entered: 05/27/2015)
91 Order, Michtavi v. Scism, M.D.Pa. Civ. No. 1:cv−12−1196 by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter,

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 18 of 22

09/21/2015 09/22/2015 03/21/2016
03/21/2016
03/22/2016 04/04/2016 04/04/2016 04/18/2016 04/18/2016 04/19/2016 05/02/2016 08/05/2016 08/05/2016
08/10/2016

Krista Rear, Roop, Rupert, Wells, Whitaker, Zelder. 89 Reply Brief, Attachment to Reply Brief. (Scicchitano, Anthony) (Entered: 05/27/2015)
92 NOTICE of Change of Address 9/16/15 by Norman Shelton to USP Atwater. (ao) (Entered: 09/22/2015)
93 MOTION to Withdraw as Attorney by Norman Shelton.(Mackie, Eric) (Entered: 09/22/2015)
94 ORDER granting in party 79 MOTION for Protective Order filed by S.V. Heath, Nelson Drees, Potter, Wells, John Adami, J. Fosnot, Moffit, Combe, J. Dunkelberger, Kulago, Brian A. Bledsoe, Joseph Norwood, F. Perrin, Chuck Maiorana, Whitaker, Fisher, Zelder. Discovery is stayed pending the district courts consideration and resolution of the Report and Recommendation filed in this case. Signed by Magistrate Judge Martin C. Carlson on March 21, 2016. (kjn) (Entered: 03/21/2016)
95 REPORT AND RECOMMENDATION − IT IS RECOMMENDED as follows: 1. The defendants renewed motion for summary judgment (Docs. 22 , 83 .), should be GRANTED, in part, in that defendants Whitaker and Wells should be DISMISSED. 2. In all other respects the defendants renewed motion for summary judgment (Docs. 22 and 83.) should be DENIED, without prejudice to renewal of the motion following pretrial discovery, and that the parties should be given leave to conduct discovery focusing on the issues raised by the motion, claims and defenses presented by the parties. Objections to R&R due by 4/7/2016. Signed by Magistrate Judge Martin C. Carlson on March 21, 2016. (kjn) (Entered: 03/21/2016)
96 Letter from Jason Frazier dtd 3/12/16 RE: joining this class action. (ao) (Entered: 03/22/2016)
97 MOTION to Stay by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Roop, Wells, Whitaker, Zelder. (Attachments: # 1 Memo, # 2 Exhibit(s))(Scicchitano, Anthony) (Entered: 04/04/2016)
98 Proposed Order by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Roop, Wells, Whitaker, Zelder. 97 MOTION to Stay . (Scicchitano, Anthony) (Entered: 04/04/2016)
99 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Rose Marie C Wong on behalf of All Plaintiffs Attorney Rose Marie Wong is seeking special admission. Filing fee $ 50, receipt number 0314−3732918.. (Wong, Rose Marie) (Entered: 04/18/2016)
100 BRIEF IN OPPOSITION re 97 MOTION to Stay filed by Norman Shelton. (Attachments: # 1 Unpublished Opinion(s))(MacConnell, Ross) (Entered: 04/18/2016)
DOCKET ANNOTATION: Attorney Rose Wong is active with the PA state bar. (lh) (Entered: 04/19/2016)
101 REPLY BRIEF re 97 MOTION to Stay filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Roop, Wells, Whitaker, Zelder.(Butler, Michael) (Entered: 05/02/2016)
102 Letter from Attorney Christine Levin, counsel for Plaintiff addressed to Judge Nealon and Judge Carlson requesting the Court adopt the R&R dated 3/21/16. (Attachments: # 1 2nd Letter from Christine Levin) (lh) (Entered: 08/05/2016)
103 REPLY BRIEF re 97 MOTION to Stay re Shelton's August 3, 2016 Letter to Court filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder.(Butler, Michael) (Entered: 08/05/2016)
104 RESPONSE by Norman Shelton to 103 Reply Brief, . (Levin, Christine) (Entered: 08/10/2016)

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 19 of 22

08/10/2016 08/12/2016 08/17/2016
08/17/2016
08/18/2016
08/19/2016 08/19/2016 08/25/2016 08/26/2016 08/30/2016 09/07/2016 09/14/2016
09/16/2016

105 ORDER granting in part and denying in part 97 Motion to Stay; Deft's may file Objections to Report and Recommendations 95 on or before August 17, 2016;Signed by Honorable William J. Nealon on 8/10/16 (ep) (Entered: 08/10/2016)
106 SPECIAL ADMISSIONS FORM APPROVED as to Rose Marie WongSigned by Honorable William J. Nealon on 8/12/16. (ao) (Entered: 08/12/2016)
107 MOTION to Exceed Page Limitation by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. (Attachments: # 1 Memo, # 2 Proposed Order)(Scicchitano, Anthony) (Entered: 08/17/2016)
108 OBJECTION to 95 Report and Recommendations by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. (Attachments: # 1 Exhibit(s) Kane Declaration)(Scicchitano, Anthony) (Entered: 08/17/2016)
109 AMENDED DOCUMENT by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. Amended Certificate of Concurrence. (Scicchitano, Anthony) (Entered: 08/18/2016)
110 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Deborah M. Golden on behalf of Norman Shelton Attorney Deborah Golden is seeking special admission. Filing fee $ 50, receipt number 0314−3845512.. (Attachments: # 1 Special Admission Agency Letter)(Golden, Deborah) (Entered: 08/19/2016)
DOCKET ANNOTATION: Attorney Deborah Golden is active with the DC state bar. (lh) (Entered: 08/19/2016)
111 Unopposed MOTION for Extension of Time to File Brief in Opposition to Defendants' Partial Objections to Report and Recommendation by Norman Shelton. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Wong, Rose Marie) (Entered: 08/25/2016)
112 ORDER granting Government's 107 Motion for Leave to File Excess Pages. Defts' Partial Objections to the Report and Recommendation are hereby accepted as filed. Signed by Honorable William J. Nealon on 8/26/16 (ao) (Entered: 08/26/2016)
113 ORDER granting pltf's 111 Motion to Extend Time. Pltf shall file a response to defts' partial objections to the Report and Recommendation, (Doc 108), on or before 9/7/16. Signed by Honorable William J. Nealon on 8/30/16 (ao) (Entered: 08/30/2016)
114 MEMORANDUM OF LAW by Norman Shelton re 108 Objection to Report and Recommendations, in Opposition to Defendants' Objection to Report and Recommendations. (Attachments: # 1 Unpublished Opinion(s), # 2 Certificate of Word Count)(Wong, Rose Marie) (Entered: 09/07/2016)
115 MOTION for Extension of Time to File Brief to 108 Objection to Report and Recommendations, Unopposed Motion for Enlargement of Time to file Defendants' Reply filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. (Attachments: # 1 Proposed Order)(Butler, Michael) (Entered: 09/14/2016)
116 ORDER − Defts concurred in motion for an enlargement of time to file their reply brief, (Doc. 115), is GRANTED. Defts may file their reply brief in support of their objections to the March 21, 2016 Report and Recommendation, (Doc. 108), on or before October 5, 2016. Reply Brief due by 10/5/2016.Signed by Honorable William J. Nealon on 9/16/16 (ao) (Entered: 09/19/2016)

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 20 of 22

10/03/2016 10/03/2016
12/07/2016
12/14/2016 12/15/2016 12/23/2016 12/23/2016 12/23/2016 12/27/2016 12/28/2016

117 WITHDRAWAL OF ATTORNEY APPEARANCE − Attorney Anthony Scicchitano and Anthony D. Scicchitano terminated on behalf of. (Scicchitano, Anthony) (Entered: 10/03/2016)
118 REPLY BRIEF re 95 REPORT AND RECOMMENDATIONS re 22 MOTION to Dismiss MOTION for Summary Judgment filed by Rupert, Krista Rear, S.V. Heath, Nelson Drees, Potter, Wells, John Adami, J. Fosnot, Moffit, Combe, Thomas R. Kane, J. Dunkelberger, Kulago, and Objections thereto filed by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s))(Butler, Michael) (Entered: 10/03/2016)
119 ORDER − The Report and Recommendation is ADOPTED, IN PART, with respect to the stipulated dismissal of Defts' Whitaker and Wells, and the Clerk of Court is directed to TERMINATE Defts Whitaker and Wells from this action. Defts' objections, (Doc 108), are SUSTAINED to the extent that the Report and Recommendation (Doc 95), did not address Defts' renewed motion to dismiss (Docs 22, 83) and the remainder of the Report and Recommendation is REJECTED on this basis; and the matter is REMANDED to MJ Carlson for consideration of Defts' renewed motion to dismiss, (Docs 22,83). Signed by Honorable William J. Nealon on 12/7/16 (ao) (Entered: 12/07/2016)
120 REPORT AND RECOMMENDATIONS: IT IS RECOMMENDED the renewed motion todismiss, or in the alternative, for summary judgment, lodged by the dfts. 83 when treated as a motion to dismiss as requested by the parties, beDENIED, without prejudice to the renewal of these claims and defenses on a morefully developed factual record at a later time through a motion for summaryjudgment. Objections to R&R due by 12/28/2016Signed by Magistrate Judge Martin C. Carlson on 12/14/16. (ma) (Entered: 12/14/2016)
121 SCHEDULING ORDER: A Telephonic Case Management Conference is set for 1/6/2017 at 10:00 AM before Magistrate Judge Martin C. Carlson. Signed by Magistrate Judge Martin C. Carlson on December 15, 2016. (kjn) (Entered: 12/15/2016)
122 MOTION to Continue Joint Case Management Conference and Plan by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order)(Butler, Michael) (Entered: 12/23/2016)
123 MOTION for Extension of Time to File Objections to Report and Recommendation of December 14, 2016 by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. (Attachments: # 1 Certificate of Nonconcurrence, # 2 Proposed Order)(Butler, Michael) (Entered: 12/23/2016)
124 ORDER granting 122 Motion to Continue. IT IS ORDERED that the case management proceedings in this case are RESCHEDULED as follows: Joint Case Management Plan form must be filed on or before January 20, 2017. A telephonic case management conference will be held on January 25, 2017 @ 10:00 a.m. SEE ORDER FOR FURTHER DETAILS. Signed by Magistrate Judge Martin C. Carlson on 12/23/2016 (ve) (Entered: 12/23/2016)
Set/Reset Hearings: Telephonic Case Management Conference set for 1/25/2017 at 10:00 AM before Magistrate Judge Martin C. Carlson. (kjn) (Entered: 12/27/2016)
125 BRIEF IN OPPOSITION re 123 MOTION for Extension of Time to File Objections to Report and Recommendation of December 14, 2016 filed by Norman Shelton.(MacConnell, Ross) (Entered: 12/28/2016)

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 21 of 22

12/30/2016 01/10/2017
01/11/2017 01/11/2017 01/20/2017 01/25/2017
01/25/2017 01/26/2017 02/01/2017 02/08/2017
02/21/2017 04/03/2017 04/13/2017 04/25/2017 05/09/2017

126 ORDER granting defts' 123 Motion for Extension of Time to file objections to the 12/14/16 Report and Recommendation, (Doc 120), on or before 1/11/17.Signed by Honorable William J. Nealon on 12/30/16 (ao) (Entered: 12/30/2016)
127 MOTION to Exceed Page Limitation as to Partial Objections to Report and Recommendation by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Wells, Whitaker, Zelder. (Attachments: # 1 Proposed Order, # 2 Certificate of Concurrence)(Butler, Michael) (Entered: 01/10/2017)
128 OBJECTION to 120 Report and Recommendations Defendant's Partial Objections to Report and Recommendation. (Attachments: # 1 Exhibit(s) Exhibit A)(Butler, Michael) (Entered: 01/11/2017)
129 ORDER granting defts' concurred 127 Motion for Leave to File Excess Pages as to partial objections to the R&R. Defendants partial objections to the R & R, (Doc. 128), are accepted as filed.Signed by Honorable William J. Nealon on 1/11/17 (ao) (Entered: 01/11/2017)
130 CASE MANAGEMENT PLAN by Norman Shelton. (Attachments: # 1 Exhibit(s) Joint Case Management Plan, Exhibit 1)(Wong, Rose Marie) (Entered: 01/20/2017)
132 CASE MANAGEMENT ORDER / ORDER LIFTING STAY. Close of Fact Discovery due by 9/15/2017. Plaintiff's Expert Reports are due by 12/6/2017. Defendant's Expert Reports are due by 12/6/2017. Dispositive Motions/Motions for Class Certification due by 10/22/2017. SEE ORDER FOR COMPLETE DETAILS. Signed by Magistrate Judge Martin C. Carlson on January 25, 2017. (kjn) (Entered: 01/25/2017)
133 MEMORANDUM OF LAW by Norman Shelton re 128 Objection to Report and Recommendations in Opposition to Defendants' Partial Objections. (Attachments: # 1 Unpublished Opinion(s), # 2 Certificate of Word Count)(Levin, Christine) (Entered: 01/25/2017)
134 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Tiffany E Engsell on behalf of Norman Shelton Attorney Tiffany Engsell is seeking special admission. Filing fee $ 50, receipt number 0314−3987341.. (Engsell, Tiffany) (Entered: 01/26/2017)
DOCKET ANNOTATION: PA State bar verified for Tiffany Ellen Engsell as active. (ao) (Entered: 02/01/2017)
135 Defendants' Reply Brief in Support of Partial Objections to Report and Recommendation by John Adami, Brian A. Bledsoe, Combe, Nelson Drees, J. Dunkelberger, Fisher, J. Fosnot, S.V. Heath, John Doe Corrections Officers, Thomas R. Kane, Kulago, Chuck Maiorana, Moffit, Joseph Norwood, F. Perrin, Potter, Krista Rear, Roop, Rupert, The United States of America through its Department, The Federal Bureau of Prisons, Zelder. 128 Objection to Report and Recommendations . (Butler, Michael) (Entered: 02/08/2017)
136 SPECIAL ADMISSIONS FORM APPROVED as to Tiffany Ellen EngsellSigned by Honorable William J. Nealon on 2/21/17. (ao) (Entered: 02/21/2017)
137 STIPULATION Protective Order by Norman Shelton, filed by Norman Shelton. (Attachments: # 1 Exhibit(s) Certification)(Wong, Rose Marie) (Entered: 04/03/2017)
138 MOTION to Withdraw as Attorney Deborah M. Golden by Norman Shelton.(Golden, Deborah) (Entered: 04/13/2017)
139 NOTICE of Appearance by Samuel Dalke on behalf of All Defendants. (Dalke, Samuel) (Entered: 04/25/2017)
140 Letter from Plaintiff Norman Shelton Requesting Order Compelling Defendants to Respond to Plaintiff's Discovery Requests. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B)(Engsell, Tiffany) (Entered: 05/09/2017)

Case: 3:11-cv-1618 As of: 10/18/2018 12:10 PM EDT 22 of 22

05/10/2017
06/01/2017 07/20/2017

142 ORDER − IT IS HEREBY ORDERED THAT the defendants shall respond to or otherwisenote objections to the interrogatories as propounded on or before Friday, June 9, 2017; IT IS FURTHER ORDERED THAT if the parties continue to disagree overthe defendants responses or the objections asserted as to specific interrogatories, the parties shall notify the Court so that the specific objections may be addressed by way of a subsequent telephone conference. Signed by Magistrate Judge Martin C. Carlson on May 10, 2017. (kjn) (Entered: 05/11/2017)
143 ORDER approving 137 Stipulation. Signed by Magistrate Judge Martin C. Carlson on June 1, 2017. (kjn) (Entered: 06/01/2017)
144 ORDER DISMISSING CASE without costs and without prejudice to the right of either party, upon good cause shown within sixty (60) days, to reinstate the action if settlement is not consummated. This case is administratively closed.Signed by Honorable William J. Nealon on 7/20/17. ively (ao) (Entered: 07/20/2017)