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.
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 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
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 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 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.
The district court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have jurisdiction to review final decisions of a district court pursuant to 28 U.S.C.
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).
Class actions are an exception to the general rule that litigation must be conducted by individual named parties. See Comcast Corp. v. Behrend, ___ U.S. ___, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (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 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.
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
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....").
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 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, ___ U.S. ___, 131 S.Ct. 2541, 2558, 180 L.Ed.2d 374 (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
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 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.
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 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.
Other courts have certified very broadly-defined (b)(2) classes without explicitly discussing ascertainability. For example, the Court of Appeals for the Second Circuit
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 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.
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 A. 77. The district court noted that Shelton proposed a class of "all persons
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:
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
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 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.
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.
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, for specified reasons, it cannot present facts essential to justify its
Defendants rely on the non-precedential decision in Superior Offshore International, Inc. v. Bristow Group, Inc., 490 Fed. Appx. 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:
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.
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.1977). 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 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
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 declaration regarding the need for discovery.
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, 113 S.Ct. 1980, 124 L.Ed.2d 21 (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 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.
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.
Marcus, 687 F.3d at 593 (internal citations and quotation marks omitted); see also Hayes, 725 F.3d at 354-55.
