2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-7-2015

Norman Shelton v. Bryan Bledsoe

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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; 
2

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
3

____________

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 
4

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 
5

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 
6

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 
7

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 
8

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. 
9

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 
10

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 
11

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.
12

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.
13

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.
14

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 5-

6. 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 
15

inappropriate here, it is also important to note that the district 

court erred by narrowing the definition of the proposed class. 
16

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 
17

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, 157-

58 (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 
18

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).
19

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 
20

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.)
21

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 
22

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)).
23

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 
24

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. 
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.