Nielsen v. Thornell

101 F.4th 1164

Jeffrey NIELSEN; Brian Boudreau,on behalf of themselves and all others similarly situated;Arizona State Conference of the National Association for the Advancement of Colored People,as an organization and on behalf of its members, Plaintiffs-Appellants, v. Ryan THORNELL, Director, Arizona Department of Corrections,Rehabilitation & Reentry, in his official capacity, Defendant-Appellee.

No. 22-15302

United States Court of Appeals, Ninth Circuit

Argued and Submitted May 15, 2023 Phoenix, Arizona

Filed May 21, 2024

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding, D.C. No. 2:20-cv-01182-DLR-JZB

John R. Dacey (argued) and Robert E. Craig, III, Abolish Private Prisons, Phoenix, Arizona; Lousene Hoppe, Fredrikson & Byron PA, Minneapolis, Minnesota; Thomas A. Zlaket, Thomas A. Zlaket PLLC, Tucson, Arizona; for Plaintiffs-Appellants.

Nicholas D. Acedo (argued), Rachel Love, and Daniel P. Struck, Struck Love Bojanowski & Acedo PLC, Chandler, Arizona, for Defendant-Appellee.

Lourdes Rosado and Andrew Case, LatinoJustice PRLDEF, New York, New York, for Amicus Curiae LatinoJustice PRLDEF.

Andre Douglas Pond Cummings, University of Arkansas at Little Rock, William H. Bowen School of Law, Little Rock, Arkansas, for Amicus Curiae University of Arkansas at Little Rock Law Professors and Graduates.

Roger A. Burrell, Bayham Jerman, Phoenix, Arizona, for Amici Curiae Notre Dame Center for Social Concerns, Faith in Action, Network Lobby, George Enderle, and Michael Hebbeler

Kari Hong, Florence Immigrant & Refugee Rights Project, Tucson, Arizona; Mark R. Conrad, Liz Kim, and William J. Cooper, Conrad Metlitzky Kane LLP, San Francisco, California; for Amici Curiae Florence Immigrant & Refugee Rights Project and American Immigration Lawyers Association, Arizona Chapter.

Erin P. Polly, K&L Gates LLP, Nashville, Tennessee, for Amicus Curiae The Day 1 Alliance.

Before: Jacqueline H. Nguyen, Daniel P. Collins, and Kenneth K. Lee, Circuit Judges.

Opinion by Judge Lee;

Concurrence by Judge Nguyen;

Dissent by Judge Collins

OPINION

LEE, Circuit Judge:

Arizona, like many other states, relies on privately run prisons to house some of its inmates. The NAACP's Arizona chapter and two former prisoners challenge the constitutionality of private prisons, alleging that their profit-motivated mission makes them less safe and secure than state-run prisons. While there may be compelling policy reasons against—or for—private prisons, there can be little debate that private prisons pass constitutional muster.

Inmates do not have a protected liberty interest in avoiding private prisons because such prisons do not impose an "atypical or significant hardship" beyond ordinary prison conditions. Nor do the plaintiffs have a valid Thirteenth Amendment claim based on involuntary servitude because the Amendment expressly carves out an exception for "punishment for crime." And their cruel and unusual punishment claim fails, too, because the Eighth Amendment does not cover the type of intrusions into prisoners' "dignity" as alleged in this case. Finally, inmates do not have a fundamental right to be free from alleged commodification in private prisons.

In sum, the Constitution does not prohibit states from turning to private companies to help run their correctional systems. The plaintiffs' arguments are better directed to Arizona's representatives and the citizens who elect them—not the courts. We affirm the district court's dismissal of the lawsuit.

BACKGROUND

Arizona law allows the state to contract with private companies to operate prisons. Ariz. Rev. Stat. Ann. § 41-1609(B). By law, these contracts must provide "cost savings" to Arizona's taxpayers. Id. § 41-1609.01(G). And today, about one-fifth of Arizona's inmates reside in privately run prisons. For those inmates housed in private prisons, Arizona has established regulatory guardrails to ensure adequate care. By statute, private prisons must offer "a level and quality of services that are at least functionally equal to those that would be provided" by state-run facilities. Id. § 41-1609.01(H). Private prisons also cannot discipline prisoners or make decisions influencing prisoners' sentence credits or release dates. Id. § 41-1609.01(M).

The Arizona State Conference of the NAACP challenges Arizona's private prison system, along with two former prisoners who sue on behalf of a putative class of prisoners who are or may be incarcerated in private facilities. They maintain that this system is unconstitutional. They allege that private prisons are inferior to state-run prisons because they are motivated by profit, leading them to cut costs and resulting in diminished safety and security as well as reduced programming and services. The plaintiffs also contend that private prisons have a financial incentive to keep prisoners incarcerated longer, which they accomplish by manipulating disciplinary proceedings. And the plaintiffs urge that incarceration in a private prison commodifies prisoners, depriving them of dignity.

The district court granted Arizona's motion to dismiss the plaintiffs' suit for failure to state a claim. The plaintiffs appeal from this order.

STANDARD OF REVIEW

We review de novo a district court's dismissal for failure to state a claim. See Sampson v. County of Los Angeles, 974 F.3d 1012, 1018 (9th Cir. 2020). This review is more searching than a perfunctory rubber stamp—to survive dismissal, a complaint must be more than "merely consistent with" liability. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Instead, it must "nudge[ ]" the plaintiff's claims "across the line from conceivable to plausible," id. at 570, 127 S.Ct. 1955, meaning that it must allege facts that present "more than a sheer possibility that a defendant has acted unlawfully," Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). If an innocent explanation for the allegations is more likely, the complaint does not plausibly state a claim for relief. See id. at 681, 129 S.Ct. 1937. And of course, we discount conclusory allegations in a complaint because they are "not entitled to the assumption of truth." Id. at 679, 129 S.Ct. 1937.

ANALYSIS

I. We have jurisdiction to decide this appeal.

At this stage of the litigation, the NAACP has adequately established that it has organizational standing to bring suit.¹ Article III allows an organization to sue in its own right if it can allege a sufficient "personal stake in the outcome of the controversy." Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (quoting Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). We have thus recognized that an organization has "direct standing to sue where it establishes that the defendant's behavior has frustrated its mission and caused it to divert resources in response to that frustration of purpose." E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 663 (9th Cir. 2021). But this frustration must amount to a "concrete and demonstrable injury to the organization's activities," not "simply a setback to [its] abstract social interests." Havens Realty, 455 U.S. at 379, 102 S.Ct. 1114.

When we assess organizational standing, we must vigilantly examine the breadth of the group's mission to ensure that the organization maintains a genuine and demonstrable commitment to that mission—independent of the lawsuit that it seeks to bring. See Sabra, 44 F.4th at 879-80. Courts must remain wary of sprawling or multipronged mission statements that would allow an organization to have near limitless standing to sue. Otherwise, we run the risk of allowing organizations to bootstrap almost any politically fraught case onto their expansive mission statement and race to the courthouse, whether or not their lawsuit bears any significant connection to their actual activities. That is precisely the outcome that Article III seeks to avoid. See TransUnion LLC v. Ramirez, 594 U.S. 413, 423-24, 141 S.Ct. 2190, 210 L.Ed.2d 568 (2021).

We have thus found standing if a substantial and clear connection exists between the lawsuit and the organization's guiding objectives.² But an organization cannot manufacture standing merely by defining its mission with hydra-like or extremely broad aspirational goals such as "vindicating constitutional rights" or "ensuring equality." Otherwise, Article III standing would be severely eroded as it would sweep in almost any case and allow a party to "manufacture an injury" in virtually any case "by choosing to spend money fixing a problem" that genuinely "would not affect the organization." Fellowship of Christian Athletes, 82 F.4th at 683. An organization with such a broad mission would have to show a more tangible and significant connection to the case. For example, that organization could show that it had repeatedly devoted significant resources and time on an issue substantially similar to the one raised in the lawsuit. And courts should take a hard look at an organization's proffered evidence of standing for groups with extremely broad or multipronged missions.

That said, a plaintiff's burden to establish standing progresses "in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation." Meland v. Weber, 2 F.4th 838, 843 (9th Cir. 2021) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Thus, "general factual allegations" may suffice to establish standing at the pleading stage of a lawsuit, even though broad allegations would be inadequate at later stages, when plaintiffs must prove specific facts. Lujan, 504 U.S. at 561, 112 S.Ct. 2130.

In this case, the NAACP frames its mission extremely expansively: it defines it as "ensur[ing] equal protection...