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U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:20-cv-01182-GMS-JZB

Nielsen et al v. Shinn Assigned to: Chief Judge G Murray Snow Referred to: Magistrate Judge John Z Boyle Cause: 42:1983 Prisoner Civil Rights

Date Filed: 06/15/2020 Jury Demand: None Nature of Suit: 555 Prisoner: Prison Condition Jurisdiction: Federal Question

Plaintiff
Jeffrey Nielsen on behalf of themselves and all others similarly situated

represented by Jacob Jeffrey Baer Fredrikson & Byron PA 4000 Pillsbury Center 200 S 6th St. Minneapolis, MN 55402 612-492-7000 Fax: 612-492-7077 Email: jbaer@fredlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

John R Dacey Abolish Private Prisons 125 N 2nd St., Ste. 110 Phoenix, AZ 85004 602-737-0600 Email: johndacey@abolishprivateprisons.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lousene M Hoppe Fredrikson & Byron PA 200 S 6th St Ste 4000 Minneapolis, MN 55402 612-492-7402 Fax: 612-492-7077

Plaintiff
Larry Hilgendorf on behalf of themselves and all others similarly situated

Email: lhoppe@fredlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Eugene Craig , III Abolish Private Prisons 125 N 2nd St., Ste. 110 Phoenix, AZ 85004 602-471-9620 Email: robertcraig@abolishprivateprisons.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A Zlaket Thomas A Zlaket PLLC 310 S Williams Blvd., Ste. 170 Tucson, AZ 85711 520-750-0250 Fax: 520-750-0243 Email: tom@zlaketlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jacob Jeffrey Baer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John R Dacey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lousene M Hoppe (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Eugene Craig , III (See above for address) LEAD ATTORNEY

Plaintiff Terry Brownell on behalf of themselves and all others similarly situated
Plaintiff Arizona State Conference of the National Association for the Advancement of Colored People as an organization and on behalf of its members

ATTORNEY TO BE NOTICED
Thomas A Zlaket (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jacob Jeffrey Baer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John R Dacey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lousene M Hoppe (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Eugene Craig , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A Zlaket (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jacob Jeffrey Baer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John R Dacey (See above for address) LEAD ATTORNEY

Plaintiff
Joseph Bulen on behalf of themselves and all others similarly situated

ATTORNEY TO BE NOTICED
Lousene M Hoppe (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Eugene Craig , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A Zlaket (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jacob Jeffrey Baer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John R Dacey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lousene M Hoppe (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Eugene Craig , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A Zlaket (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Brian Boudreaux on behalf of themselves and all others similarly situated
V. Defendant David Shinn Director, Arizona Department of Corrections, Rehabilitation & Reentry, in his official capacity

represented by Jacob Jeffrey Baer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John R Dacey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lousene M Hoppe (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Eugene Craig , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas A Zlaket (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Patrick Struck Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480-420-1600 Email: dstruck@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine Lindsay Hanna Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300

Chandler, AZ 85226 480-420-1600 Fax: 480-420-1695 Email: khanna@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas Daniel Acedo Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480-420-1600 Email: NAcedo@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Love Struck Love Bojanowski & Acedo PLC 3100 W Ray Rd., Ste. 300 Chandler, AZ 85226 480-420-1600 Fax: 480-420-1696 Email: RLove@strucklove.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/15/2020
06/15/2020 06/15/2020

# Docket Text
1 *PRISONER CIVIL RIGHTS COMPLAINT. Filing fee received: $ 400.00, receipt number 0970-18381670 filed by Jeffrey Nielsen, Arizona State Conference of the National Association for the Advancement of Colored People, Terry Brownell, Larry Hilgendorf, Joseph Bulen, Brian Boudreaux. (Dacey, John) (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit)(MCO) *Modified to correct filers on 6/16/2020 (CEI). (Entered: 06/15/2020)
2 SUMMONS Submitted by Arizona State Conference of the National Association for the Advancement of Colored People, Terry Brownell, Larry Hilgendorf, Jeffrey Nielsen. (Dacey, John) (MCO) (Entered: 06/15/2020)
3 NOTICE OF ASSIGNMENT (MCO) (Entered: 06/15/2020)

06/17/2020 06/18/2020 06/19/2020
06/22/2020 06/26/2020 07/02/2020 08/17/2020

Remark: Pro hac vice motion(s) granted for Lousene M Hoppe on behalf of Plaintiffs Brian Boudreaux, Terry Brownell, Joseph Bulen, Larry Hilgendorf, Jeffrey Nielsen. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/17/2020)
4 Summons Issued as to David Shinn. (GMP). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 06/18/2020)
5 ORDER: Defendant David Shinn, in his official capacity, must answer the 1 Complaint. If Plaintiffs do not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed. Fed. R. Civ. P. 4(m); LR Civ 16.2(b)(2)(B)(ii). Defendant must answer the Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Signed by Chief Judge G Murray Snow on 6/19/20. (GMP) (Entered: 06/19/2020)
Remark: Pro hac vice motion(s) granted for Jacob Jeffrey Baer on behalf of Plaintiffs Arizona State Conference of the National Association for the Advancement of Colored People, Brian Boudreaux, Terry Brownell, Joseph Bulen, Larry Hilgendorf, Jeffrey Nielsen. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 06/22/2020)
6 * SERVICE EXECUTED filed by Arizona State Conference of the National Association for the Advancement of Colored People, Brian Boudreaux, Terry Brownell, Joseph Bulen, Larry Hilgendorf, Jeffrey Nielsen: Rule 4 Waiver of Service of Summons. Waiver sent on 06/17/2020 to Defendants David Shinn, Director . (Dacey, John) * Modified to correct date sent from 6/22/20 to 6/17/20 on 6/29/2020 (LAD). (Entered: 06/26/2020)
NOTICE of request for e-notices by James Christian. (Christian, James) (Entered: 07/02/2020)
7 MOTION to Dismiss for Failure to State a Claim by David Shinn. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9)(Acedo, Nicholas) (Entered: 08/17/2020)

08/21/2020

8 MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Dismiss for Failure to State a Claim by Arizona State Conference of the National Association for the Advancement of Colored People, Brian Boudreaux, Terry Brownell, Joseph Bulen, Larry Hilgendorf, Jeffrey Nielsen. (Attachments: # 1 Text of Proposed Order)(Hoppe, Lousene) (Entered: 08/21/2020)

08/24/2020

9 NOTICE TO FILER OF DEFICIENCY re: 8 MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Dismiss for Failure to State a Claim filed by Arizona State Conference of the National Association for the Advancement of Colored People, Larry Hilgendorf, Jeffrey Nielsen, Brian Boudreaux, Joseph Bulen, Terry Brownell. Document not in compliance with LRCiv 5.5(g) - Documents signed by an attorney shall be filed using that attorney's ECF log-in and password and shall not be filed using a log-in and password belonging to another attorney. Document(s) signed by attorney John Dacey but submitted using the log-in and password belonging to attorney Lousene Hoppe. No further action is required. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (GMP) (Entered: 08/24/2020)

08/27/2020

10 ORDER granting 8 Plaintiff's Motion. Plaintiffs shall file a response to Defendant's Motion to Dismiss (doc. 7 ) on or before September 28, 2020. Signed by Magistrate Judge John Z Boyle on 8/27/20. (EJA) (Entered: 08/27/2020)

09/18/2020

11 MOTION for Leave to File Excess Pages for Opposition to Defendant's Motion to Dismiss by Arizona State Conference of the National Association for the Advancement of Colored People, Brian Boudreaux, Terry Brownell, Joseph Bulen, Larry Hilgendorf, Jeffrey Nielsen. (Attachments: # 1 Text of Proposed Order)(Hoppe, Lousene) (Entered: 09/18/2020)

09/18/2020

12 **Wrong PDF** LODGED Proposed Plaintiffs' Motion for Leave to File Their Opposition to Defendant's Motion to Dismiss In Excess of Page Limitations re: 11 MOTION for Leave to File Excess Pages for Opposition to Defendant's Motion to Dismiss. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Arizona State Conference of the National Association for the Advancement of Colored People, Brian Boudreaux, Terry Brownell, Joseph Bulen, Larry Hilgendorf, Jeffrey Nielsen. (Hoppe, Lousene) Modified on 9/29/2020 (DXD). (Entered: 09/18/2020)

09/21/2020

13 NOTICE TO FILER OF DEFICIENCY re: 12 Lodged Proposed Document filed by Arizona State Conference of the National Association for the Advancement of Colored People, Larry Hilgendorf, Jeffrey Nielsen, Brian Boudreaux, Joseph Bulen, Terry Brownell. Incorrect PDF

attached. FOLLOW-UP ACTION REQUIRED: Please refile with correct PDF document. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (GMP) (Entered: 09/21/2020)

09/22/2020

14 NOTICE of Errata re: 12 Lodged Proposed Document by Plaintiffs Arizona State Conference of the National Association for the Advancement of Colored People, Brian Boudreaux, Terry Brownell, Joseph Bulen, Larry Hilgendorf, Jeffrey Nielsen. (Hoppe, Lousene) (Entered: 09/22/2020)

09/28/2020

15 **FILED at Doc. 17 ** LODGED Proposed Plaintiffs' Opposition to Defendant's Motion to Dismiss re: 7 MOTION to Dismiss for Failure to State a Claim. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Arizona State Conference of the National Association for the Advancement of Colored People, Brian Boudreaux, Terry Brownell, Joseph Bulen, Larry Hilgendorf, Jeffrey Nielsen. (Attachments: # 1 Exhibit Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Hoppe, Lousene) Modified on 9/29/2020 (DXD). (Entered: 09/28/2020)

09/29/2020

16 ORDER granting 11 Motion for Leave to File Excess Pages. The Clerk shall file Plaintiffs' proposed Opposition to Defendants Motion to Dismiss (lodged Doc. 15 ). Signed by Magistrate Judge John Z Boyle on 9/29/20. (DXD) (Entered: 09/29/2020)

09/29/2020

17 RESPONSE to Motion re: 7 MOTION to Dismiss for Failure to State a Claim filed by Arizona State Conference of the National Association for the Advancement of Colored People, Brian Boudreaux, Terry Brownell, Joseph Bulen, Larry Hilgendorf, Jeffrey Nielsen. (Attachments: # 1 Exhibit Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(DXD) (Entered: 09/29/2020)

10/01/2020

18 MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Dismiss for Failure to State a Claim (Unopposed) by David Shinn. (Attachments: # 1 Text of Proposed Order)(Acedo, Nicholas) *Modified linkage on 10/2/2020 (DXD). (Entered: 10/01/2020)

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 Case 2:20-cv-01182-GMS--JZB Document 1 Filed 06/15/20 Page 1 of 25

John R. Dacey (004962) Robert E. Craig III (034989) 125 N. 2nd St., Suite 110, Box 521 Phoenix, AZ 85004 johndacey@abolishprivateprisons.org robertcraig@abolishprivateprisons.org 602-737-0600
Thomas A. Zlaket (001819) 310 S. Williams Blvd., Suite 170 Tucson, AZ 85711 tom@zlaketlaw.com 520-750-0250
Lousene Hoppe (MN Bar No. 0387171)* Jacob Baer (MN Bar No. 0391107)* 200 South 6th St #4000 Minneapolis, MN 55402 LHoppe@fredlaw.com JBaer@fredlaw.com 612-492-7000
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

Jeffrey Nielsen; Larry Hilgendorf; Terry Brownell; Joseph Bulen; and Brian Boudreaux on behalf of themselves and all others similarly situated; and Arizona State Conference of the National Association for the Advancement of Colored People, as an organization and on behalf of its members
Plaintiffs, v.
DAVID SHINN, Director, Arizona Department of Corrections, Rehabilitation & Reentry, in his official capacity,

Case No.
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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Case 2:20-cv-01182-GMS--JZB Document 1 Filed 06/15/20 Page 2 of 25
Defendant.
Plaintiffs allege as follows: JURISDICTION
1. This Court has jurisdiction in accordance with 28 U.S.C. §§ 1331 and 1343(a)(3). This civil action seeks declaratory and injunctive relief in accordance with 28 U.S.C. §§ 2201(a), and 2202; 42 U.S.C. § 1983; the Eighth Amendment as incorporated to the states through the Fourteenth Amendment, the Thirteenth Amendment, and the Fourteenth Amendment of the United States Constitution.
THE PARTIES 2. Plaintiff Jeffrey S. Nielsen (“Nielsen”) is an Arizona resident, a citizen of the United States, and a prisoner of the Arizona Department of Corrections, Rehabilitation & Reentry (“ADCRR”). ADCRR has transferred Nielsen to various private prison facilities that are under contract with ADCRR including his current incarceration at Arizona State Prison - Phoenix West, which is owned, managed, and operated by The GEO Group. 3. Plaintiff Larry Hilgendorf ("Hilgendorf") is an Arizona resident, a citizen of the United States, and a prisoner of ADCRR. Hilgendorf is incarcerated at Arizona State Prison - Florence West, a private prison under contract with ADCRR. 4. Plaintiff Terry Brownell ("Brownell") is an Arizona resident, a citizen of the United States, and a prisoner of ADCRR. Brownell is incarcerated in Arizona State Prison - Florence West, a private prison under contract with ADCRR.
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5. Plaintiff Joseph Bulen ("Bulen") is an Arizona resident, a citizen of the United States, and a prisoner of ADCRR. Bulen is incarcerated in Arizona State Prison - Florence West, a private prison under contract with ADCRR.
6. Plaintiff Brian Boudreaux ("Boudreaux") is an Arizona resident, a citizen of the United States, and a prisoner of ADCRR. Boudreaux is incarcerated in Arizona State Prison - Florence West, a private prison under contract with ADCRR.
7. Plaintiff Arizona State Conference of the National Association for the Advancement of Colored People ("Arizona State Conference NAACP") is a nonprofit membership association that was founded in 1915 and is headquartered in Phoenix, Arizona. It is the umbrella organization for the twelve branches and two youth councils of the Arizona State Conference NAACP. The Arizona State Conference NAACP's mission is to ensure equal protection under law for all persons, particularly African Americans, and in particular for persons in the criminal justice system, including those persons in private-for-profit prisons. The Arizona State Conference NAACP and its branches are also membership organizations that include individual members, some of whom have been or will be directly harmed by prison privatization as further described herein.
8. The Arizona State Conference NAACP advances its mission through a variety of means including engagement with the community and dedication of its resources through its activism, legal advocacy, lobbying before legislative bodies, outreach and public education efforts that seek enforcement of civil rights laws.
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9. Plaintiff Arizona State Conference NAACP, in its own name and through
its members dedicates its resources: to educating the public about the harms and
failures of private-for-profit prisons, to advocating for persons incarcerated in
private-for-profit prisons, to lobbying before legislative bodies in opposition to
prison and jail privatization and legislation and contracting that are supported
directly or indirectly by prison privatization interests; to participation in
administrative proceedings to oppose privatization of prisons; and proposing and
implementing national and Arizona-related priorities including, for example, a
resolution to abolish private prisons that was adopted at the 2012 annual meeting of
the national NAACP, and supporting the 2019 resolution adopted by the national
NAACP that states:
“Abolish Private Prisons WHEREAS, the private prison industry profits from the incarceration and labor of citizens; and WHEREAS, private prisons consider incarcerated citizens as cash-cow stock; and WHEREAS, private prisons exploit prison labor for pennies on the dollar; and WHEREAS, the private prison industry redirects jobs from the public into their prisons; and WHEREAS, statistics from the U.S. Department of Justice show that as of 2013, there were 133,000 state and federal prisoners housed in privately-owned prisons in the United States of America; and WHEREAS, the private prison industry serves to undermine and pervert the U.S. Constitution and corrupt the Legislative and Judicial branches of our government to the point that these branches could no longer protect the citizens, thus making them vulnerable to loss of their freedom and livelihood for the sake of financial gains; and WHEREAS, private prisons get up to 40% federally compensated wage tax breaks, shifting the cost/burdens to the citizens while making themselves a profit; and WHEREAS, data on private prison conditions shows an increase in overall prison violence, which includes violence affecting those incarcerated and assaults against correctional officers and correctional staff. THEREFORE, BE IT RESOLVED that the NAACP shall work toward the abolition of private prisons."
Such national resolutions are also resolutions of plaintiff Arizona State
Conference NAACP and its member organizations.
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10. Defendant's continued use and proposed expansion of the use of private prisons harms plaintiff Arizona State Conference NAACP and its members in that such usage frustrates part of the core mission of plaintiff Arizona State Conference NAACP, makes it highly likely that some of its members or their family members will be incarcerated in private prisons, and will force plaintiff continually to divert resources toward working to abolish prison privatization, and advocate for those members or members’ friends and relatives incarcerated in for-profit prisons.
11. Plaintiff Arizona State Conference NAACP includes as part of its core mission the reduction of mass incarceration and the disproportionate impact of the criminal justice system on marginalized parts of the community including people of color. The political presence of the private prison industry in Arizona and the profit incentive to incarcerate privately frustrates plaintiff's mission and requires plaintiff to dedicate resources to the issue. For example, but for the interruption of the COVID pandemic, the Arizona State Conference NAACP would have completed the process of helping establish an NAACP Arizona State Prison Chapter to focus on prison issues, including privatization.
12. Defendant David Shinn (“Shinn”) is the Director of ADCRR, an Arizona state agency. Director Shinn is sued in his official capacity. All actions of ADCRR set forth herein are attributable to Shinn and his predecessors and occurred in Arizona. Venue is proper pursuant to 28 U.S.C. § 1391.
13. At all times relevant to this lawsuit, Defendant Shinn and his predecessors were acting in their official capacities under color of state law.
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14. The actions, omissions, events and transactions of ADCRR described herein were taken by, authorized by, and/or ratified by Defendant Shinn and his predecessors in their official capacities as Directors or Acting Directors of ADCRR.
15. Shinn was appointed Director by, and serves at the pleasure of, Arizona’s Governor. A.R.S. § 41- 1603. Shinn assumed his responsibilities as Director in October 2019, replacing Charles Ryan (“Ryan”).
16. As Director of ADCRR, defendant Shinn is responsible for the overall operations and policies of ADCRR that include the incarceration of prisoners whose custody is committed to ADCRR. A.R.S. § 41-1604.
BACKGROUND 18. Following conviction of certain crimes, the Superior Court of Arizona issues orders that sentence prisoners to specific punishments including commitment to the custody of ADCRR as state prisoners. 19. Once committed to the custody of ADCRR, persons convicted of crimes become prisoners of the State of Arizona. 20. ADCRR executes these sentencing orders by incarcerating prisoners in public prisons and in private for-profit prisons and determines in each instance where each prisoner will be incarcerated. 21. Arizona law authorizes ADCRR to contract with private prison vendors to incarcerate some of ADCRR’s prisoners and requires ADCRR to supervise any such vendors with which ADCRR contracts. 22. ADCRR in fact contracts with private for-profit prison corporations that operate prisons inside and outside Arizona to incarcerate ADCRR prisoners, thereby
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delegating Arizona’s sovereign power of incarceration and punishment to private vendors.
23. ADCRR incarcerates thousands of ADCRR prisoners in prisons owned and/or operated by private for-profit corporations.
24. ADCRR will continue to incarcerate thousands of people in private prisons into the foreseeable future.
25. At a minimum, ADCRR expects to utilize private for-profit prisons for a period of years under existing contracts.
26. Currently, ADCRR places approximately twenty percent (20%) or more of the prisoners committed to its custody, or approximately 8,000 people on any given day, in private prisons that are operated in Arizona by private prison corporations, including The Geo Group, CoreCivic and Management & Training Corporation (“MTC”).
27. Many people incarcerated by ADCRR in public prisons are subject to being transferred to private prisons by ADCRR.
28. From time to time, ADCRR publishes requests for proposals to contract with private prison vendors. ADCRR awards contracts under a competitive bidding process upon receipt of acceptable proposals from for-profit prison corporations. Acceptable proposals must offer cost savings to the State of Arizona. A.R.S. 41-1609.01(F).
29. Contracts between ADCRR and prison corporations set forth the terms of the parties’ relationships which include, inter alia, the placement and/or transfer of
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prisoners in private for-profit prisons. These contracts also specify the types of ADCRR prisoners who may be incarcerated in private prisons.
30. In general, the contracts between ADCRR and the private prison corporations make the corporations responsible for the daily operation and management of the prisons and for the daily custody, control, incarceration, punishment, and well-being of each prisoner.
31. In accordance with these contracts, ADCRR sets the price it will pay per prisoner and pays the private prisons on a per diem basis; i.e., ADCRR pays a predetermined daily rate to each prison corporation for each day each prisoner occupies a cell or bed in a private prison. In such manner ADCRR monetizes each prisoner by making each prisoner a unit of revenue and profit to the prison corporations.
32. Through public contracts procured by ADCRR with private prison vendors, ADCRR transfers the State of Arizona’s sovereign power to incarcerate and punish prisoners in at least the following respects:
a. ADCRR grants private for-profit prison corporations contracts for multiple years with multiple options to renew;
b. ADCRR delegates the power to incarcerate and punish, including having full custody and control of prisoners;
c. ADCRR delegates the power to use force, including deadly force, against prisoners;
d. ADCRR delegates the power to “write up” prisoners for incidents and activities that affects discipline, segregation, seclusion, privileges, work
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and pay, daily life and liberty within the prisons, early release time credits, the possibility of parole, and release from custody; e. ADCRR delegates the power to decide the daily schedule of each individual prisoner, including sleep, recreation, meals, lights-out, location assignment within the prisons, and other activities; f. ADCRR delegates the power to regulate access to religious services, clergy, prisoner contact with family members and attorneys, and education and training opportunities that will enable prisoners to reenter society successfully after serving their sentences and to gain early release credits based on education and other positives activities within prisons; g. ADCRR guarantees 90-100% occupancy levels to some for-profit prison vendors, which financial guarantees influence, if not dictate ADCRR decisions on prisoner placements and transfers; h. Due to such occupancy guarantees, ADCRR fills private prison cells with a pre-determined number of ADCRR prisoners to avoid having to pay for empty private prison cells; i. ADCRR enables private for-profit prison corporations to make profits for the corporations and their shareholders from the incarceration of prisoners; i.e., incarceration of prisoners is an ADCRR-authorized means of generating corporate profits by turning prisoners into economic assets for the corporations;
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j. The private for-profit prison contract model creates incentives to increase corporate profits and corporate executive compensation under the ADCRR contracts by lowering costs to operate prisons, which cost-cutting measures conflict with safety, security and the individual welfare of those within the private prisons; (copy of an ADCRR contract with The Geo Group for Arizona State Prison - Phoenix West is attached as Exhibit A and incorporated by this reference). 33. ADCRR does not specify what prisoner programs the private prison vendor must provide to prisoners (e.g., education, vocational, rehabilitation, religious worship, and access to clergy). For example, ASP - Florence West does not offer programs that are offered in ADCRR public prisons through which some prisoners may qualify for reductions in their sentences. 34. The profit motive of the private prison corporations embeds strong incentives in the construction and operation of facilities to reduce programs and services, including but not limited to recreation, educational and job-training opportunities, health care, and food, to save money and increase profits. 35. On information and belief, prisoners in private prisons experience greater deprivations of liberty and safety compared to prisoners in public prisons due to higher levels of incident reporting, violence, lockdowns, and serving more of their sentences, while under the supervision of less trained and experienced security staff, and are less likely to have access to beneficial educational, rehabilitative, and vocational programs.
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36. Arizona law and ADCRR rules do not require that private prison security officers meet the training and certification standards required of ADCRR corrections officers. As a result private prison security officers have less training and experience than ADCRR corrections officers, which affects safety and security within the private prisons. Furthermore, on information and belief, private prison guards lack civil service protection and grievance processes, which makes them more vulnerable to pressure to violate or ignore rules in order to increase corporate profits.
37. ADCRR currently contracts with at least the following private for-profit prisons for incarceration of Arizona state prisoners within the State of Arizona:
a. The Marana Community Correctional Treatment Facility, a minimum-custody private prison in Marana, Arizona that is privately operated and managed by Management and Training Corporation;
b. Arizona State Prison-Phoenix West, a minimum-custody private prison in Phoenix, Arizona that is privately operated and managed by The Geo Group, Inc. or its subsidiary;
c. Arizona State Prison-Florence West, a minimum-custody private prison in Florence, Arizona that is privately operated and managed by The Geo Group, Inc. or its subsidiary;
d. Red Rock Correctional Facility, a medium-security private prison in Eloy, Arizona that is privately operated and managed by CoreCivic, Inc.;
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e. Arizona State Prison – Kingman, a minimum/medium-security prison located in unincorporated Mohave County, Arizona that is privately operated and managed by The Geo Group, Inc. or its subsidiary; and,
f. Central Arizona Correctional Facility, a medium-security private prison located in Florence, Arizona that is privately operated and managed by The Geo Group, Inc. or its subsidiary.
38. CoreCivic, Inc., formerly known as Corrections Corporation of America, is a for-profit Maryland corporation with principal executive offices in Tennessee.
39. The Geo Group, Inc., is a for-profit Florida corporation formerly known as Wackenhut Corrections with its principal executive offices in Florida.
40. Management and Training Corporation is a for-profit Utah corporation with its principal executive offices in Utah.
41. The Geo Group and CoreCivic are public corporations whose stocks are traded on the New York Stock Exchange.
42. ADCRR’s contracts to incarcerate people privately enhance the value of the prison corporations and enhance the ability of the corporations to encourage investment and to borrow and expand.
43. ADCRR’s contracts to incarcerate prisoners are assets of the prison corporations that the corporations use to entice investments and use as collateral to borrow and grow their businesses. In this sense, ADCRR enables private prison corporations to commodify human beings just as private jails in the nineteenth-century South commodified slaves. The value of those jails, and the
12

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economic reputation of the jails’ owners, was tied to how many slaves they incarcerated. For example, R.G. Dun and Company (the predecessor firm to Dun and Bradstreet) evaluated the credit worthiness of owners of slave jails and traders in slaves just as they evaluate private prison corporations today.
44. The value of The Geo Group and CoreCivic stock is materially affected by the number of prisoners they incarcerate, by projections of how many prisoners will be incarcerated and detained in their facilities, and by projections on further opportunities for growth.
45. The relationship between stock value (as well as profits and salaries) and the number of human beings who have been commodified as assets creates a substantial conflict of interest between the for-profit prisons on the one hand, and the constitutional obligations of ADCRR and constitutional rights of plaintiffs and the plaintiff class on the other.
46. The highest priority of private prison corporation management is to maximize profit and market share. This is accomplished by obtaining more assets in the form of commodified human beings, holding them in prison as long as possible, taking actions which may reduce their opportunity of parole or early release, and reducing expenditures for such things as medical care, dental care, education and training, access to clergy, chaplains, and non-religious counselors, and recreation. It is also accomplished by reducing the cost of workers in the prison by providing as little training, education, and certification as possible for staff, hiring the least expensive staff available, and operating the prisons with the smallest
13

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number of employees possible, which in turn can create dangerous and unhealthy conditions for prisoners.
47. Private prison corporations have higher revenues, profits, and executive compensation when they incarcerate higher numbers of prisoners each day.
48. On information and belief, the executive management of prison corporations receive greater compensation when they enhance prison corporation profits and stock values.
49. These financial incentives create serious risks of erroneous deprivations of liberty for each prisoner in private prisons. The prison corporation’s operational control gives it an almost unlimited ability to manipulate, inter alia, freedom within the prison, release dates, access to clemency and parole, and likelihood of recidivism.
50. Private prison corporations submit recommendations to ADCRR concerning prisoner classification, discipline and sanctions.
51. Upon information and belief ADCRR and the Arizona Board of Executive Clemency make decisions affecting prisoners’ lives and liberty that are dependent on information reported to ADCRR by private prison corporations.
52. ADCRR tolerates sub-standard contract performance from private prison corporations. Such performance adversely affects prisoners, depriving them of equal protection and due process, and further reducing them to commodities who are used for the profit of the prison.
53. ADCRR’s reliance on private prison corporations to incarcerate 20% or more of the State’s prisoners, and the potential burden of replacing a prison
14

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contractor create disincentives for the ADCRR to closely monitor its private prison contractors and to sanction them for noncompliance with the contracts.
54. Such disincentives conflict with the safety, security and welfare of those incarcerated in private prisons and those who work in private prisons.
55. Defendant Shinn’s responsibilities include protecting and respecting the rights of persons committed to ADCRR’s custody, which rights include but are not limited to:
a. the right not to be treated as a slave or subjected to the conditions of slavery;
b. the right to be free from cruel and unusual punishment; c. the right to be free from impermissible financial incentives that
endanger life, liberty and welfare; and d. the right to equal protection under the law. 56. Defendant’s actions have monetized each prisoner that ADCRR commits to private prisons for incarceration in at least the following respects: a. ADCRR pays private prisons to punish prisoners through incarceration; b. ADCRR sets the price that it pays private prison corporations for each
day each prisoner is incarcerated in a private prison cell; c. ADCRR guarantees specific volumes of prisoners for placement in
private prisons through contracts for periods of years; d. Private prison corporations derive revenues and profits from each day
each prisoner is incarcerated in their cells;
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e. The value of private prison corporations increases when they incarcerate more prisoners and decreases when they incarcerate fewer;
f. A prisoner’s presence in a private prison generates more revenue and profit to a private prison corporation the longer the prisoner remains in the private prison;
g. ADCRR’s contracts with private prison corporations are publicly procured through competitive bidding. In such circumstances the volume of prisoners’ physical presence, custody, and control in prison cells is awarded through public auction;
h. The Department’s contracts for private prisons are valuable assets of the for-profit prison corporations that: i. increase the value of the corporations; ii. increase the value of their publicly-traded stocks; iii. are used as collateral for loans for operations and growth to incarcerate more prisoners; iv. are used to encourage investment in the prison corporations;
i. Private prison publicly-traded stock values are affected materially by projections of profitability, which in turn are affected by projections on the numbers of private prison cells (or beds) that will be used to incarcerate prisoners such as the plaintiffs. In such manner each prisoner and each projected future prisoner represent units of profit that impact prison corporation stock value.
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57. All individual plaintiffs complained to ADCRR that their incarceration in private for-profit prisons violates the Constitution of the United States and demanded that they either be transferred to public prisons or be released.
58. Defendant Shinn or his predecessor Ryan denied each plaintiff's demand, stating that such placements in private prisons are lawful and appropriate.
59. Such denials by Shinn or his predecessor Ryan set forth uniform ADCRR policy and are in accord with state laws that authorize incarceration of ADCRR prisoners in private prisons.
60. Thus, defendant Shinn and his predecessor Ryan have acted and will continue to act in a consistent manner in denying similar demands from other prisoners, now and in the foreseeable future.
61. Defendant Shinn’s placement of prisoners in privately-operated prisons for profit violates the U.S. Constitution in at least the following respects:
a. By substituting a prisoner-corporation relationship for a state-prisoner relationship, by relegating prisoners to the status of human inventory, and by making prisoners slaves to the prison corporation, the State violates fundamental rights guaranteed to plaintiffs by the Constitution, including the Eighth Amendment prohibition on cruel and unusual punishment, as incorporated to the State of Arizona through the Fourteenth Amendment, the Thirteenth Amendment prohibition against slavery, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
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b. Incarceration in private prisons attenuates government protection, oversight, safety and well-being within the prisons and does not provide prisoners with equal protection and accountability of law enforcement as those who are incarcerated in public prisons.
c. Such private incarceration creates financial incentives to design and operate facilities that incarcerate more people for longer periods of time, provide fewer rehabilitative programs for successful re-entry to society, and discourage release of prisoners, resulting in never-ending cycles of incarceration, parole, and re-incarceration that profit the private jailer and are contrary to the public interests in healthy people, families and communities, lower taxes, and less crime.
62. Defendant’s actions are under color of state law and deprive plaintiffs of rights secured by the U.S. Constitution. Plaintiffs are entitled to declaratory and injunctive relief to remedy such violations under 42 U.S.C. 1983.
63. Plaintiffs' incarceration in private for-profit prisons is a continuing violation of plaintiffs' rights under the Constitution of the United States.
CLASS ALLEGATIONS 64. The constitutionality of incarcerating people in private for-profit prisons is a question of law in this litigation that is of common interest to all parties. Class Definitions 65. Individual Plaintiffs bring this lawsuit as a class action under Federal Rules of Civil Procedure, Rule 23(a) and (b)(2) for the requests for declaratory and
18

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injunctive relief on behalf of themselves individually and all others similarly situated.
66. Individual Plaintiffs seek to certify the following class: All prisoners of the Arizona Department of Corrections, Rehabilitation & Reentry who are or may be placed by the Department in a private prison for incarceration. 67. Individual Plaintiffs reserve the right to revise the class definition based upon information learned subsequent to the filing of this action. Class Certification Requirements under Rule 23(a) and (b)(2) 68. Rule 23(a)(1) - Numerosity. The class is so numerous that joinder of all members is impracticable. Plaintiffs do not know the exact size of the class because that information is within the control of Defendant and is continually changing. However, upon information and belief, the class members number in the thousands and the proposed class is open-ended; i.e., many future prisoners are included whose numbers are unknown. 69. Membership in the class is readily ascertainable from ADCRR records. A report on the ADCRR website dated May 11, 2020 indicates that ADCRR incarcerates 7,922 people in private prisons. In a single year, this means that prisoners will spend approximately 2,891,530 days and nights in private prisons. 70. Rule 23(a)(2) - Commonality. There are questions of law or fact common to the Class that relate to the constitutionality of prison privatization. 71. Rule 23(a)(3) - Typicality. The claims asserted by Plaintiffs are typical of the claims of the Class, in that the representative Plaintiffs, like all Class Members, are subject to and impacted by Defendant’s actions, specifically incarceration and
19

Case 2:20-cv-01182-GMS--JZB Document 1 Filed 06/15/20 Page 20 of 25
punishment in private for-profit prisons. Each member of the proposed Class is or will be subject to continuing violations of constitutional rights by Defendant’s actions.
72. Rule 23(a)(4) - Adequacy. Plaintiffs will fairly and adequately protect the interests of the Class. Plaintiffs have retained attorneys experienced in class and complex litigation, including litigation under the United States Constitution and 42 USC § 1983. Plaintiffs and their counsel intend to vigorously prosecute this litigation. Neither Plaintiffs nor their counsel have interests that conflict with the interests of the other class members.
73. Rule 23(b)(2) - The action satisfies the requirements of Rule 23(b)(2) because Defendant has acted and refused to act on grounds generally applicable to the Class, thereby making appropriate declaratory and final injunctive relief with respect to each Class Member.
CAUSES OF ACTION COUNT 1 Slavery
74. Defendant Shinn, his predecessors, and ADCRR transfer and assign prisoners such as plaintiffs to private prison corporations to enable prison corporations to generate revenues and profits for the monetary benefit of corporate owners, shareholders and executive management, and to enable the State to relieve itself of daily corrections responsibility for such prisoners while granting private interests dominion over the prisoners and the fruits of prisoners’ economic value and labor, thus rendering such prisoners, including plaintiffs, as slaves to the prison
20

Case 2:20-cv-01182-GMS--JZB Document 1 Filed 06/15/20 Page 21 of 25
corporations in violation of the Thirteenth Amendment to the Constitution of the United States.
75. Arizona laws that authorize and/or require prison privatization and ADCRR’s contracts with private prison vendors abuse the criminal justice system to create a form of slavery by which the incarceration of the many, including plaintiffs, enriches the few private interests in violation of the Thirteenth Amendment.
76. Defendant Shinn is treating prisoners as property and degrades the human dignity of each prisoner by monetizing them and turning each incarcerated person into an economic asset as a means by which private prison corporations generate revenues and profits. Under this privatized system, prisoners become fungible assets. To the private prison corporation, any prisoner can be substituted for another prisoner and generate the same revenues and profits for the corporation. In this respect, they are treated as assets and commodities.
77. The Thirteenth Amendment to the United States Constitution says: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
78. This prohibition of slavery is absolute and limits the actions of all governments and private persons or corporations.
79. ADCRR’s use of private for-profit prisons violates the Thirteenth Amendment’s prohibition of slavery.
80. Alternatively, ADCRR’s use of private prisons violates the Thirteenth Amendment’s “punishment clause” that only permits punishment by government.
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81. Alternatively, ADCRR causes prisoners in private prisons to be treated like slaves and subjected to slave-like conditions in violation of the Thirteenth Amendment to the U.S. Constitution.
COUNT 2 Cruel and Unusual Punishment 82. The Eighth Amendment as incorporated to the states through the Fourteenth Amendment guarantees to all citizens, including plaintiffs and members of the class that no cruel and unusual punishments will be inflicted upon them. 83. The Eighth Amendment is intended to preserve the basic concepts of dignity, civilized standards, humanity, and decency. It serves as a barometer of these evolving standards in our society and prohibits punishments that are incompatible with these standards. 84. Modern understandings of human rights recognize that treating plaintiffs as property, and subjecting plaintiffs to jailers that profit from incarceration and that have disincentives to see plaintiffs released is analogous to slave jails before the Thirteenth Amendment, is both cruel and unusual, and violates each plaintiff’s human dignity. 85. Plaintiffs’ incarceration in private for-profit prisons constitutes cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution as incorporated to the states through the Due Process Clause of the Fourteenth Amendment.
COUNT 3 Due Process
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Case 2:20-cv-01182-GMS--JZB Document 1 Filed 06/15/20 Page 23 of 25
86. Defendant’s actions have deprived and will continue to deprive plaintiffs and class members of rights secured by the Constitution of the United States.
87. The Fourteenth Amendment to the United States Constitution is enforceable pursuant to 42 U.S.C. § 1983 and provides that no state shall deprive any person within its jurisdiction of life, liberty and property without due process of law or the equal protection of the law. U.S. Const. amend. XIV, § 1.
88. Privatization of prisons creates biased jailers and prison administrators who have financial incentives that are in conflict with the release of prisoners, in violation of protected liberty interests of persons incarcerated, including plaintiffs, all in violation of the Due Process Clauses of the United States Constitution.
89. The Arizona laws that authorize and/or require that ADCRR contract with private vendors create a biased adjudication system that deprives plaintiffs of Due Process.
90. The Arizona laws that authorize and/or require that ADCRR contract with private vendors implicate important liberty interests, introduce significant risk of improper infringement on those interests, and do not provide attendant efficiency to the government, all in violation of plaintiffs’ procedural due process rights.
91. The Arizona laws that authorize and/or require that ADCRR contract with private vendors infringe on the fundamental right not to be treated as a commodity, as property, or as a slave and thus deny plaintiffs substantive due process.
COUNT 4 Equal Protection of Law
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92. The Fourteenth Amendment to the United States Constitution is enforceable pursuant to 42 U.S.C. § 1983 and provides that no state shall deny any person within its jurisdiction equal protection of law. U.S. Const. amend. XIV, § 1.
93. Under the Equal Protection Clause of the Fourteenth Amendment, violation of prisoners’ fundamental rights and the disparate treatment of prisoners held by private prisons is presumptively unconstitutional and subject to heightened scrutiny.
94. Prisoners in private prisons are not provided equal protection of law, including law enforcement, in violation of the Equal Protection Clause of the Fourteenth Amendment.
PRAYER FOR RELIEF Plaintiffs request judgment on their Complaint as follows: A. An Order certifying the Plaintiff Class in accordance with Rule 23(a) and
(b)(2), F.R.C.P.; B. A declaratory judgment that Arizona statutes that authorize prison
privatization are unconstitutional; C. A declaratory judgment that prison privatization and the resulting contracts
violate the Constitution of the United States; D. An injunction that forbids Defendant Shinn and his successors from
placing prisoners in private prisons and that requires Shinn to begin the process of discontinuing ADCRR's use of private prisons; E. An award to plaintiffs for their reasonable attorneys' fees and costs;
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F. An award to plaintiffs for such other and further relief that is just and appropriate under the circumstances.
Dated this 15th day of June, 2020
By: /s/ John Dacey John Dacey (004962) johndacey@abolishprivateprisons.org Robert E. Craig III (034989) robertcraig@abolishprivateprisons.org Abolish Private Prisons, Inc. 125 N 2nd Street, Suite 110, Box 521 Phoenix, AZ 85004 Tel: 602-737-0600 Thomas Zlaket (001819) 310 S. Williams Blvd., Suite 170 Tucson, AZ 85711 tom@zlaketlaw.com Tel: 520-750-0250
* Pro hac vice application pending 25

 
 Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 1 of 33

1 John R. Dacey (004962)

Robert E. Craig III (034989) 2 125 N. 2nd St., Suite 110, Box 521

3

Phoenix, AZ 85004 johndacey@abolishprivateprisons.org

4 robertcraig@abolishprivateprisons.org Tel: 602-737-0600
5

6

Thomas A. Zlaket (001819) 310 S. Williams Blvd., Suite 170

7 Tucson, AZ 85711 tom@zlaketlaw.com

8 Tel: 520-750-0250

9 Lousene Hoppe (MN Bar No. 0387171) (pro hac vice)

10

Jacob Baer (MN Bar No. 0391107) (pro hac vice) 200 South 6th St #4000

11 Minneapolis, MN 55402

LHoppe@fredlaw.com

12 JBaer@fredlaw.com

Tel: 612-492-7000 13

14 Attorneys for Plaintiffs

15

UNITED STATES DISTRICT COURT

16

DISTRICT OF ARIZONA

17 Jeffrey Nielsen; Larry Hilgendorf; Terry Brownell; Joseph Bulen; and Brian
18 Boudreaux on behalf of themselves and all

others similarly situated; and Arizona State 19 Conference of the National Association for 20 the Advancement of Colored People, as an
organization and on behalf of its members,

21 Plaintiffs,
22

v. 23

24

David Shinn, , Director, Arizona Department of Corrections, Rehabilitation

25 & Reentry, in his official capacity,

Case No. 2:20-cv-01182-GMS-JZB
LODGED: PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

26

Defendant.

27

28

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 2 of 33

1

John R. Dacey (004962) Robert E. Craig III (034989)

2 125 N. 2nd St., Suite 110, Box 521

Phoenix, AZ 85004 3 johndacey@abolishprivateprisons.org

4 robertcraig@abolishprivateprisons.org 602-737-0600

5

6

Thomas A. Zlaket (001819) 310 S. Williams Blvd., Suite 170

7 Tucson, AZ 85711 tom@zlaketlaw.com
8 520-750-9250

9 Lousene M. Hoppe (MN Bar No. 0387171) (pro hac vice)
10 Jacob Baer (MN Bar No. 0391107) (pro hac vice) 200 South 6th St #4000
11 Minneapolis, MN 55402 12 LHoppe@fredlaw.com
JBaer@fredlaw.com 13 Tel: 612-492-7000

14 Attorneys for Plaintiffs

15

UNITED STATES DISTRICT COURT

16

DISTRICT OF ARIZONA

17 Jeffrey Nielsen; Larry Hilgendorf; Terry 18 Brownell; Joseph Bulen; and Brian
Boudreaux on behalf of themselves and all 19 others similarly situated; and Arizona State
Conference of the National Association for 20 the Advancement of Colored People, as an 21 organization and on behalf of its members,

22

Plaintiffs,

23

v.

24 David Shinn, , Director, Arizona Department of Corrections, Rehabilitation
25 & Reentry, in his official capacity,

Case No. 2:20-cv-01182-GMS-JZB
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
ORAL ARGUMENT REQUESTED

26

Defendant.

27

28

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 3 of 33

1

TABLE OF CONTENTS

2 INTRODUCTION ........................................................................................................... 1

3 BACKGROUND ............................................................................................................. 3

4 Arizona Privatizes Prison Health Care: Parsons v. Ryan ................................... 3
5 Arizona Privatizes Entire Prisons ........................................................................ 5
6

7

Private Prison Corporations Have Perverse Incentives ...................................... 5

8

Private Prisons Control The Prisoners’ Lives ..................................................... 7

9

Individuals In Private Prisons Are Commodified ................................................ 8

10

The Plaintiffs Are Incarcerated In Private Prisons ............................................. 9

11 LEGAL STANDARD ..................................................................................................... 9

12 ARGUMENT .................................................................................................................. 9

13 I. The Complaint States A Thirteenth Amendment Claim. .......................... 9
14 A. The Thirteenth Amendment covers private prisons. .................... 10
15

B. The Punishment Clause does not strip prisoners’

16

Thirteenth Amendment protections. ............................................ 12

17 C. The Department’s largely pro se caselaw did not fully

18

analyze the issues. ........................................................................ 15

19

II. The Complaint States A Procedural Due Process Claim. ....................... 16

20

A. Placement at a particular facility can implicate a liberty

21

interest. ......................................................................................... 17

22

B. The complaint sufficiently alleges a liberty interest. ................... 18

23

C. The complaint also states a structural bias claim. ........................ 21

24

III. The Complaint States Equal Protection And Substantive Due

25

Process Claims. ....................................................................................... 23

26

A. The Department’s circular argument would immunize

all state actors from equal protection claims................................ 23 27

28

B. The Complaint’s factual allegations plausibly state an

equal protection and due process violation. ................................. 24

i

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 4 of 33

1

IV. The Complaint States An Eighth Amendment Claim. ............................ 26

2

V. The Facial Challenge Should Not Be Dismissed. ................................... 27

3 CONCLUSION ............................................................................................................. 27

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ii

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 5 of 33

1

INTRODUCTION

2

Private prisons have two fundamental ingredients: a profit motive and control over

3 prisoners’ lives. This combination yields consequences that are not just problematic and

4 contrary to a legitimate penological policy; they also violate prisoners’ constitutional

5 rights.

6

As for-profit corporations, the goal of private prison operators is just that: to make

7 a profit. They make money by keeping more people in prison for longer terms. That means

8 they are incentivized to create a system that increases the length of time someone remains

9 incarcerated and increases the likelihood of recidivism, while cutting costs wherever they

10 can: security, staffing, education programs, health care, etc. Private prisons can and do act

11 on these incentives because they have de facto control over the prisoners’ lives, no matter

12 what any contractual or statutory provision may say.

13

The result of this system authorized by the Arizona Department of Corrections,

14 Rehabilitation, and Reentry (the “Department”) is that each day of an individual’s life is

15 reduced to a unit of profit based on being locked in a cage. It is treating that person like an

16 asset or, in other words, property. Commodification of incarcerated individuals is an assault

17 on their fundamental dignity as fellow human beings.

18

Plaintiffs need not conclusively establish every claim before discovery. “The

19 standard at this stage of the litigation is not that plaintiff’s explanation must be true or even

20 probable. The factual allegations of the complaint need only plausibly suggest an

21 entitlement to relief.” Winter ex rel. United States v. Gardens Reg’l Hosp. & Med. Ctr.,

22 Inc., 953 F.3d 1108, 1121 (9th Cir. 2020). The Complaint meets that standard.

23

Yet at every turn the Department disregards the proper standard for a motion to

24 dismiss. Instead of accepting the Complaint’s facts as true, the Department calls them

25 “presumptions,” Mot. 17, or attaches exhibits to generate contrary facts, Mot. 6. To resolve

26 the claims, the Court will need a full record of facts and evidence, especially with claims

27 as inherently fact-based (requiring case-specific analysis) as those asserted in the

28 Complaint. Plaintiffs have alleged sufficient facts that dismissal at this stage is improper.

1

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 6 of 33

1

The analysis of Plaintiffs’ claims is not nearly as simple as the Department suggests.

2 Most of the Motion’s long string cites are pro se cases where the court lacked the benefit

3 of fully-developed arguments, or where the court reflexively relied on those pro se cases

4 with minimal, if any, independent analysis. The Complaint’s claims are much more

5 nuanced and, most importantly at this stage of litigation, adequately pled.

6

Thirteenth Amendment. Whether incarceration of human beings for the profit of

7 private entities crosses the line into a Thirteenth Amendment violation depends on the

8 details. Details of how private prisons monetize human beings. Details of what is occurring

9 within the prisons. Details of the history of slavery for the Court to make the appropriate

10 comparisons. The facts pled in the Complaint are sufficient, at this stage, to state a

11 Thirteenth Amendment Claim that placing other humans in captivity in order to generate

12 private profit is slavery, or at a minimum, “involuntary servitude.”

13

The Thirteenth Amendment’s Punishment Clause does not eliminate the

14 Amendment’s protection here. According to the Department’s argument, it would be

15 constitutional to force a prisoner to be someone’s personal slave as part of his sentence.

16 The Department’s interpretation would also sanction the historical practice of “convict-

17 leasing,” where Southern states after the Civil War would “lease” individuals convicted of

18 crimes to plantations to work as slaves by another name. That interpretation is wrong.

19 History, caselaw, and the text show that the Punishment Clause has limitations. A

20 conviction does not strip away all Thirteenth Amendment protections. And those

21 protections are not stripped here.

22

Procedural Due Process. Whether a liberty interest is implicated “requires a factual

23 comparison,” Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003), which entails a “case

24 by case, fact by fact consideration.” Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996).

25 Contrary to the Department’s arguments, placement at a particular facility can implicate a

26 liberty interest. Wilkinson v. Austin, 545 U.S. 209 (2005) (concluding placement at Ohio

27 State Penitentiary implicated a liberty interest). The Supreme Court in Wilkinson held

28 multiple conditions associated with a placement can combine to implicate a liberty interest

2

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 7 of 33

1 even if any one of those conditions standing alone might not. The Complaint adequately

2 contains allegations to plausibly suggest a liberty interest is implicated based on the

3 combination of: the worse conditions at private prisons, the private prisons’

4 commodification of human beings, the indefinite duration of the placement at a private

5 prison, and the increased length of incarceration from placement in private prison. This

6 claim should not be dismissed, particularly since the interplay between these factors

7 implicates factual questions.

8

Equal Protection/Substantive Due Process. Given the fundamental rights at stake

9 here, the Court should apply heightened scrutiny to the state’s prison privatization scheme.

10 The Government did not even argue these claims should be dismissed under a heightened

11 form of scrutiny. But even if “rational basis review” were to apply, the Complaint

12 adequately states equal protection and substantive due process claims. The legitimate

13 interest the Department cites is a supposed cost savings. But the Arizona Office of the

14 Auditor General’s only analysis of the cost of Arizona’s private prisons shows they are in

15 fact more expensive than public prisons. Discovery on this issue is required to determine

16 whether the classification indeed bears a rational relationship to the state’s alleged interest.

17

Eighth Amendment. Treating people like property by relinquishing them to the

18 control and profit of private jailers is increasingly repugnant to society, as evidenced by

19 the various states that have ended their “experiments” with the private prisons system.

20 Numerous religious and other groups have adopted formal resolutions denouncing the use

21 of private prisons. The Complaint sufficiently alleges that placement in private prisons

22 violates the evolving standards of decency that mark the progress of a maturing society.

23 The claim should not be resolved without a full factual record.

24

The Motion to Dismiss should be denied.

25

BACKGROUND

26

Arizona Privatizes Prison Health Care: Parsons v. Ryan

27

This is not the first time that private components of Arizona’s prison system have

28 been challenged as unconstitutional. The Department privatized prison medical care

3

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 8 of 33

1 through its contract with a company called Corizon. Parsons v. Ryan (“Parsons Contempt

2 Order”), No. 12-cv-0601, 2018 WL 3239691, at *3 (D. Ariz. June 22, 2018).

3

Inmates incarcerated in the Arizona prison system brought a lawsuit contending that

4 the Department and its senior officials violated the Eighth Amendment because they were

5 deliberately indifferent to the serious harm their health care policies posed. Parsons v. Ryan

6 (“Parsons I”), 912 F.3d 486, 493 (9th Cir. 2018); Parsons v. Ryan (“Parsons II”), 949 F.3d

7 443, 451 (9th Cir. 2020). That challenge serves as a backdrop to this case.

8

The parties settled on the eve of trial, and the Department agreed to comply with

9 over 100 “Performance Measures” designed to improve the Department’s health care

10 system. Parsons II, 949 F.3d at 451. Those promises never came to fruition. The court held

11 that the “inescapable conclusion is that Defendants are missing the mark after four years

12 of trying to get it right. Their repeated failed attempts, and too-late efforts, to take their

13 obligation seriously demonstrate a half-hearted commitment.” Parsons Contempt Order,

14 2018 WL 3239691, at *11.

15

The key problem was delegating the prisons’ health care to a private company,

16 which the Department did not meaningfully oversee. The court explained that “Defendants’

17 management of Corizon does not indicate that they have any real ability to spur Corizon’s

18 compliance with the Stipulation.” Id. at *9. Concluding that sanctions were required to

19 compel compliance with the law, the Court “place[d] a clear and focused light on what is

20 happening here: the State turned to a private contractor which has been unable to meet the

21 prisoner’s health care needs. Rather than push its contractor to meet those needs, the State

22 has instead paid them more and rewarded them with financial incentives while limiting the

23 financial penalties for non-compliance.” Id. at *11.

24

The Department has privatized more than just health care. In the midst of rewarding

25 the private health care company for providing such poor care that the Eighth Amendment

26 was violated, the Department expanded its use of entirely private prisons, which have many

27 of the same root problems as private prison health care.

28

4

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1

Arizona Privatizes Entire Prisons

2

Arizona law authorizes the Department to contract the entire operation of a prison

3 to private, for-profit corporations. A.R.S. § 41-1609(B); Compl. ¶ 21. In fact, 20% of

4 Arizona inmates (approximately 8,000 people daily) are incarcerated by private prison

5 corporations. Compl. ¶¶ 26, 53. Those corporations include The Geo Group, CoreCivic,

6 and Management & Training Corporation. Compl. ¶ 26. The Department guarantees 90%-

7 100% occupancy levels for some of the for-profit prisons. Compl. ¶ 32(g). As a result, the

8 Department fills private prison cells with a predetermined number of prisoners to avoid

9 having to pay for empty prisons cells. Compl. ¶ 32(h).

10

Similar to Parsons, the Department in its Motion to Dismiss points to various

11 statutory or contractual provisions supposedly ensuring the Department’s oversight of

12 these private entities or that certain decisions remain with the Department. Mot. 3-5; Mot.

13 Ex. 1-9. But like in Parsons, the theoretical existence of requirements is not what matters.

14 What matters is what is actually occurring within the walls.

15

These provisions cannot be used to contradict the Complaint’s allegations, which at

16 this stage must be accepted as true, with all inferences in Plaintiffs’ favor. “The prison

17 corporation’s operational control gives it an almost unlimited ability to manipulate” life

18 within the prison, including the prisoners’ “freedom within the prison, release dates, access

19 to clemency and parole, and likelihood of recidivism.” Compl. ¶ 49.

20

Private Prison Corporations Have Perverse Incentives

21

“The highest priority of private prison corporation management is to maximize

22 profit and market share.” Compl. ¶ 46. Their business model is simple. The more people

23 the private prison incarcerates and the longer those people are incarcerated for, the more

24 revenue the company earns. Compl. ¶¶ 46, 56(d)-(f). And the more the private prisons can

25 cut the costs of incarceration, the greater the companies’ margins, which means greater

26 profit. Compl. ¶¶ 46.

27

The market understands this concept. The more people the companies incarcerate,

28 the more their stock price goes up. Compl. ¶¶ 44-45, 56(i). The more the stocks and profits

5

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1 increase, the more the companies’ executives are compensated. Compl. ¶ 48.

2

This profit-motive business model creates perverse incentives for the private

3 prisons. These incentives are not small. CoreCivic reported earning $1.9 billion in revenue 4 in 2019. Ex. A, CoreCivic Feb. 20, 2020 10-K at 61.1 The incentive structure leads the

5 companies “to design and operate facilities that incarcerate more people for longer periods

6 of time,” Compl. ¶ 61(c), resulting in “never-ending cycles of incarceration, parole, and re-

7 incarceration that profit the private jailer and are contrary to the public interest[].” Id. The

8 private prisons take “actions which may reduce [prisoners’] opportunity of parole or early

9 release”—actions which increase revenue for the companies. Compl. ¶ 46.

10

Their cost-cutting incentives are equally problematic, leading private prisons to

11 “reduce programs and services, including but not limited to recreation, educational and job-

12 training opportunities, health care, and food, to save money.” Compl. ¶ 34; see also Compl.

13 ¶ 46 (reducing expenditures for medical care, dental care, and access to clergy). These

14 measures also decrease the safety and security within the prison. Compl. ¶ 32(j).

15

The effect of the incentive structure is not limited to the private prisons themselves;

16 it ripples out to the Department as well. The Department’s reliance on private prisons and

17 the potential burden associated with changing the for-profit operator creates “disincentives

18 for the ADCRR to closely monitor its private prison contractors and to sanction them for

19 noncompliance with the contracts.” Compl. ¶ 53. It also leads the Department to “tolerate[]

20 substandard contract performance.” Compl. ¶ 52. This pressure is not imaginary. In

21 Parsons, the Department stuck with an underperforming private provider because it would

22 be difficult to replace. Parsons Contempt Order, 2018 WL 3239691, at *11 (“[The

23 Department’s] recalcitrance flows from its fear of losing its contracted healthcare.”).

24

25 1 On a motion to dismiss, a court may still “take judicial notice of matters of public record.

26 . . . Thus, judicial notice is appropriate for SEC filings.” Baca ex rel. Nominal Defendant Insight Enterprises, Inc. v. Crown, No. 09--1283, 2010 WL 2812712, at *2 (D. Ariz. July

27 12, 2010) (internal brackets and quotation marks omitted) (considering a Form 10-K on a

28

motion to dismiss). The 10-K is publicly available: http://ir.corecivic.com/static-files/ acc01462-f138-4e80-a699-10db834fec73.

6

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1

Private Prisons Control The Prisoners’ Lives

2

The private prisons can and do act on their incentives because they have control of

3 all aspects of the prisoners’ lives. Compl. ¶ 49. They have the power to decide the “daily

4 schedule of each individual prisoner, including sleep, recreation, meals, lights-out, location

5 assignment within the prisons, and other activities.” Compl. ¶ 32(e), and the power to

6 “regulate access to religious services, clergy, prisoner contact with family members and

7 attorneys, and education and training opportunities.” Compl. ¶ 32(f). They even have the

8 “power to use force, including deadly force, against prisoners.” Compl. ¶ 32(c).

9

Perhaps most importantly, the private prisons have “the power to ‘write up’

10 prisoners for incidents, which in turn affects “discipline, segregation, seclusion, privileges,

11 work and pay, and daily life and liberty.” Compl. ¶ 32(d). Critically, that in turn affects

12 “early release time credits, the possibility of parole, and release from custody.” Id; see also

13 Compl. ¶ 32(f). These effects are not imaginary. One study of Mississippi’s private prisons

14 found that “inmates in private prison serve about four to seven percent larger fractions of

15 their sentences, or 85 to 90 extra days for the average prisoner.” Ex. B, Anita Mukherjee,

16 Impacts of Private Prison Contracting on Inmate Time Served and Recidivism, Am. Econ.

17 J: Econ Pol. 21 (Jul. 30, 2020).

18

The length of a sentence is affected in other ways as well. For example, as one cost-

19 cutting measure, “ASP – Florence West does not offer programs that are offered in ADCRR

20 public prisons through which some prisoners may qualify for reductions in their sentences.”

21 Compl. ¶ 33. Cost cutting also means private prisoners experience “higher levels of

22 incident reporting, violence, [and] lockdowns” while “under the supervision of less trained

23 and experienced security staff.” Compl. ¶ 35. Private prison security officers are not

24 required to “meet the training and certification standards required of ADCRR corrections

25 officers” which means they have “less training and experience” which “affects safety and

26 security.” Compl. ¶ 36. The officers also “lack civil service protection and grievance

27 processes, which makes them more vulnerable to pressure to violate or ignore rules.” Id.

28

7

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1

Individuals In Private Prisons Are Commodified

2

The profit incentive of the private prisons and their control over the prisoners

3 combine to commodify human beings. The Department pays the private prisons on a per

4 diem basis. Compl. ¶ 31. In other words, it pays a predetermined “daily rate to each prison

5 corporation for each day each prisoner occupies a cell or bed in a private prison.” Id.; see

6 also Compl. ¶ 56(b). The contracts are awarded through competitive bidding. Compl.

7 ¶ 56(g). So the number of human beings placed under incarceration by a private entity is

8 awarded through a public auction. Id.

9

The private prisons “commodify human beings just as private jails in the nineteenth-

10 century South commodified slaves.” Compl. ¶ 43. “The value of those jails, and the

11 economic reputation of the jails’ owners, was tied to how many slaves they incarcerated.

12 For example, R.G. Dun and Company (the predecessor firm to Dun and Bradstreet)

13 evaluated the credit worthiness of owners of slave jails and traders in slaves just as they

14 evaluate private prison corporations today.” Id. The private prisons receive the “fruits of”

15 not just the prisoners’ “economic value” but also their “labor.” Compl. ¶ 78.

16

Essentially, “each prisoner and each projected future prisoner represent units of

17 profit.” Compl. ¶ 56(i). “To the private prison corporation, any prisoner can be substituted

18 for another prisoner and generate the same revenues and profits for the corporation. In this

19 respect, they are treated as assets and commodities,” or more simply: “property.”

20 Compl. ¶ 76. This “degrades the human dignity of each prisoner by monetizing them and

21 turning each incarcerated person into an economic asset.” Id.

22

To see how the prisoners are commodified, one need look no further than the

23 corporations’ own public securities filings. For example, CoreCivic’s most recent Annual

24 Report states that a “key performance indicator” it uses is a “compensated man-day.”

25 Ex. A, CoreCivic Feb. 20, 2020 10-K at 70. A “compensated man-day” represents “the

26 revenue we generate and expenses we incur for one offender for one calendar day.” Id. In

27 2019, CoreCivic generated $79.72 per “compensated man-day.” Id. At the same time, its

28 “compensated man-day” expenses totaled $58.31. Id. That meant the company earned a

8

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1 profit of $21.41 per “compensated man-day,” representing a 25.9% margin. Id. The

2 company’s “average compensated population” was 64,107 people daily that year. Id.

3

The Individual Plaintiffs Are Incarcerated In Private Prisons

4

How the Department decides which individuals will be incarcerated at public

5 facilities and which at private facilities is shrouded in mystery. For reasons only the

6 Department knows, Plaintiffs Jeffrey Nielsen, Larry Hilgendorf, Terry Brownell, Joseph

7 Bulen, and Brian Boudreau were placed into private prisons—either Florence West or

8 Phoenix West. Compl. ¶¶ 2-6. They brought suit against Director David Shinn, who is

9 responsible for the overall operations and policies of the Department, including the

10 incarceration of prisoners. Compl. ¶ 16. Plaintiffs now oppose the motion to dismiss.

11

LEGAL STANDARD

12

“To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil

13 Procedure 12(b)(6), a complaint must contain factual allegations sufficient to ‘raise the

14 right of relief above the speculative level.’” Phillips v. State Farm Fire & Cas. Co., No.

15 19-cv-4605, 2019 WL 5789471, at *2 (D. Ariz. Nov. 6, 2019) (Snow, J.) (quoting Bell Atl.

16 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “While a complaint need not contain detailed

17 factual allegations it must plead enough facts to state a claim to relief that is plausible on

18 its face.” Id. (internal quotation marks omitted). “When analyzing a complaint for failure

19 to state a claim, ‘allegations of material fact are taken as true and construed in the light

20 most favorable to the non-moving party.’” Id. (quoting Smith v. Jackson, 84 F.3d 1213,

21 1217 (9th Cir. 1996)).

22

ARGUMENT

23 I. The Complaint States A Thirteenth Amendment Claim.

24

The Department raises three Thirteenth Amendment arguments. “First,” the

25 Department argues, “nothing in the privatization statutes or the Complaint resembles the

26 re-institutionalization of African slavery.” Mot. 8. But the Thirteenth Amendment has long

27 been recognized as a broad charter of freedom that is not so limited. Infra § I.A.

28

“Second,” the Department goes on, “the Thirteenth Amendment has no application

9

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 14 of 33

1 where a person is held to answer for a violation of a penal statute.” Mot. 8 (internal

2 quotation marks and brackets omitted). The Department takes too broad a view of the

3 Punishment Clause, which creates an exception for “punishment for crime whereof the

4 party shall have been duly convicted.” That clause does not strip all Thirteenth Amendment

5 protections for prisoners. It permits only incarceration by the government that the prisoner

6 was sentenced to, and only serves as an exception to “involuntary servitude.” Infra § I.B.

7

Finally, there is no controlling precedent holding that private incarceration does not

8 violate the Thirteenth Amendment. The Department cites a series of mostly pro se cases

9 that raise bare-bones claims regarding private prisons. Those cases provide little more than

10 a superficial analysis of the constitutional violations involved. Plaintiffs’ complaint more

11 thoroughly pleads the nuance and complexity of these claims, and it deserves the full

12 analysis that previous courts did not undertake. Infra § I.C.

13

The Complaint plausibly states a Thirteenth Amendment claim.

14

A. The Thirteenth Amendment covers private prisons.

15

The Department first argues that “nothing in the privatization statutes or the

16 Complaint resembles the re-institutionalization of African slavery.” Mot. 8.2 While

17 certainly “the primary purpose of the Amendment was to abolish the institution of African

18 slavery,” it is “not limited to that purpose.” United States v. Kozminski, 487 U.S. 931, 942

19 (1988). Its “plain intention was to abolish slavery of whatever name and form and all its

20 badges and incidents” including “to render impossible any state of bondage.” Bailey v.

21 State of Alabama, 219 U.S. 219, 241 (1911); see also Jones v. Alfred H. Mayer Co., 392

22

23

2 The Thirteenth Amendment states that “neither slavery nor involuntary servitude” shall exist. The Department claims the Complaint is based only on “slavery” but not

24 “involuntary servitude.” That cramped interpretation of the Complaint is wrong. The

Complaint quotes the entire Thirteenth Amendment, including the “involuntary servitude” 25 language. Compl. ¶ 77. It pleads that private prisons receive the “fruits of prisoners’

26 economic value and labor.” Compl. ¶ 74. And it also states that those in private prisons are not just “treated like slaves” but also “subjected to slave-like conditions in violation of the

27 Thirteenth Amendment.” Compl. ¶ 81. However, if the Court believes the Complaint does

28

not adequately plead “involuntary servitude,” Plaintiffs request leave to amend the Complaint to add this clarification.

10

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1 U.S. 409, 442 (1968) (Section 2’s grant of power to Congress to enforce the Thirteenth

2 Amendment incudes banning “badges and incidents of slavery.”).

3

The amendment prohibits “all forms of involuntary slavery of whatever class or

4 name.” Slaughter-House Cases, 83 U.S. 36, 37 (1872). That means it “denounces a status

5 or condition, irrespective of the manner or authority by which it is created.” Clyatt v. United

6 States, 197 U.S. 207, 216 (1905). The amendment is “a promise of freedom” which

7 includes “freedom to go and come at pleasure and to buy and sell when [one] please[s].”

8 Jones, 392 U.S. at 443 (internal quotation marks omitted). It is certainly not limited to those

9 with African ancestry. “It was a charter of universal civil freedom for all persons, of

10 whatever race, color, or estate, under the flag.” Bailey, 219 U.S. at 240-41.

11

“The most basic feature of ‘slavery’ or ‘involuntary servitude’” is “the subjugation

12 of one person to another by coercive means.” United States v. Nelson, 277 F.3d 164, 179

13 (2d Cir. 2002). Professor Akhil Amar uses this definition of “slavery”: “A power relation

14 of domination, degradation, and subservience, in which human beings are treated as chattel,

15 not persons.” Akhil Reed Amar, Child Abuse As Slavery: A Thirteenth Amendment

16 Response to Deshaney, 105 Harv. L. Rev. 1359, 1365 (1992).

17

“The word servitude is of larger meaning than slavery.” Slaughter-House Cases, 83

18 U.S. at 69. “[T]he prime purpose of those who outlawed ‘involuntary servitude’ . . . was to

19 abolish all practices whereby subjection having some of the incidents of slavery was legally

20 enforced.” United States v. Shackney, 333 F.2d 475, 485 (2d Cir. 1964). “[A] holding in

21 involuntary servitude means . . . action by the master causing the servant to have, or to

22 believe he has, no way to avoid continued service or confinement.” Id. at 486; see also

23 Noah Webster, An American Dictionary Of The English Language 1207 (1865) (definitions

24 of “servitude” include “[t]he state of voluntary or involuntary subjection to a master,”

25 “bondage,” and “a state of slavish dependence”).

26

Plaintiffs are being held in cages for the financial benefit of private entities which

27 make billions of dollars in revenue from this captivity. The private prisons receive the

28 “fruits of prisoners’ economic value and labor.” Compl. ¶ 74. In short: the prisoners have

11

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1 been effectively transformed into property, valued only in terms of their “compensated

2 man-days.” The allegations in the Complaint plausibly state that their status falls within

3 the Thirteenth Amendment’s scope. If holding people in captivity in this way were

4 happening to anyone but prisoners, everyone would call it what it is: slavery. It is at

5 minimum “involuntary servitude.”

6

In other words, the real question is whether the Thirteenth Amendment’s

7 “Punishment Clause” permits this conduct. For the reasons discussed below, it does not.

8

B. The Punishment Clause does not strip prisoners’ Thirteenth

9

Amendment protections.

10

After the end of the Civil War, the Southern states’ economies were broken. In

11 particular, they needed a way to replace slavery’s free labor they had relied on for so many

12 decades. Their solution: convict freed slaves of newly created crimes and force them to

13 work on plantations. This reviled system was known as “convict-leasing,” because the

14 “convict” would be “leased” to private enterprises. It was simply slavery by another name.

15 When the Thirteenth Amendment was raised in protest, the Southern States responded: The

16 Amendment has an exception for those convicted of a crime!

17

The Department similarly interprets the Punishment Clause to strip all Thirteenth

18 Amendment protection from someone once that person is convicted of a crime. This broad

19 interpretation means that someone convicted of a crime in 2020 could be sentenced to being

20 another’s household slave. It would mean the Thirteenth Amendment has such a large

21 loophole that convict leasing would be constitutional. This reading cannot be right.

22

The Punishment Clause applies only when someone is intentionally sentenced to

23 government-operated incarceration, and it is only an exception to “involuntary servitude.”

24 History, caselaw, and the text all point to that conclusion.

25

History. The Thirteenth Amendment was ratified in 1865, and immediately after its

26 ratification, Republican representatives expressed concern about Southern misapplication

27 of the Punishment Clause and establishment of convict leasing. Representative Stevens

28 noted that “[u]nder the pretense of [the Punishment] clause they are taking men . . . for

12

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 17 of 33

1 assault and battery and selling them into bondage for ninety-nine years.” See Cong. Globe,

2 39th Cong., 1st Sess. 655 (1866) (emphasis added). Senator Deming complained that

3 “under the exceptional clause…reconstructed North Carolina is now selling black men into

4 slavery for petty larceny…” Id. at 332. This convict-leasing system was not limited

5 exclusively to any one race. For example, 10%-16% of leased convicts in Georgia were

6 white. Alex Lichtenstein, Twice The Work Of Free Labor: The Political Economy Of The

7 New South 59-60 (1996).

8

Republicans in Congress argued against the interpretation of the Punishment Clause

9 that would create a loophole which swallowed the amendment. Take for example Senator

10 Jacob C. Howard, a key drafter of the Thirteenth and Fourteenth Amendments. He

11 disagreed with the interpretation of the clause that once someone was convicted of a crime,

12 “under this amendment the power of the State within those limits he happens to be is not

13 at all restrained in respect to him.” Cong. Globe, 39th Cong., 1st Sess. 504 (1866). Thomas

14 M. Cooley, in the most influential legal treatise of the time, stated that “it might be well

15 doubted if a regulation which should suffer the convict to be placed upon the auction block

16 and sold to the highest bidder, either for life or for a term of years, would be in harmony

17 with the constitutional prohibition” of the Thirteenth Amendment. A Treatise on the

18 Constitutional Limitations 319 (2d ed. 1871).

19

Representative John Kasson argued the Punishment Clause meant “a freeman can

20 be condemned by the law only to the involuntary servitude . . . within the jurisdiction of

21 the law and officers of the law.” Cong. Globe, 39th Cong., 1st Sess. 345 (1867). This was

22 to the “exclusion of all unofficial control of the person so held in servitude.” Id. (emphasis

23 added).

24

The Republican congressmen at the time, including drafters of the Thirteenth

25 Amendment, rejected the broad reading of the Punishment Clause the Department is

26 advancing in this case. The Punishment Clause permits individuals convicted of crimes to

27 be confined under state control. But it does not permit them to be subjugated to the control

28 of private entities for purposes of turning a profit.

13

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1

Caselaw. While the Thirteenth Amendment is not often called upon for

2 interpretation, courts have concluded that status as a prisoner does not automatically

3 remove all Thirteenth Amendment protections. Rather, the Punishment Clause has

4 limitations.

5

Even in the late 1800s, courts accepted limitations to the Punishment Clause. For

6 example, the Supreme Court of Missouri adopted Cooley’s interpretation: “Nor do we

7 suppose the exception will permit the convict to be subjected to other servitude than such

8 as is under the control and direction of the public authorities in the manner heretofore

9 customary.” Thompson v. Bunton, 117 Mo. 83, 22 S.W. 863, 865 (1893) (quoting Cooley,

10 T., Constitutional Limitations 653 (6th ed.)) (emphasis added).

11

Another limitation that has been placed on the Punishment Clause is that it requires

12 a court-imposed sentence of slavery or involuntary servitude. As the Fifth Circuit has

13 explained: “[A] prisoner who is not sentenced to hard labor retains his thirteenth

14 amendment rights.” Watson v. Graves, 909 F.2d 1549, 1552 (5th Cir. 1990). Someone

15 without that sentence is free to attempt to “prove a violation of the thirteenth amendment”

16 by showing that he was “subjected to involuntary servitude or slavery.” Id.

17

Even Courts that have rejected challenges to private prisons have noted that “there

18 might be circumstances in which the opportunity for private exploitation and/or lack of

19 adequate state safeguards could take a case outside the ambit of the Thirteenth

20 Amendment’s state imprisonment exception.” Davis v. Hudson, 221 F.3d 1351 (10th Cir.

21 2000). The problem in that case was simply that the pro se petitioner’s “complaint presents

22 us with no such factual allegations.” Id. That is not the case here. See supra at 5-9, 11-12.

23

The Punishment Clause does not apply where the complained-of condition was not

24 specifically imposed by the sentence or where a private entity implements the

25 incarceration.

26

Text. The Thirteenth Amendment states: “Neither slavery nor involuntary servitude,

27 except as a punishment for crime whereof the party shall have been duly convicted, shall

28 exist within the United States, or any place subject to their jurisdiction.” U.S. Const. Am.

14

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 19 of 33

1 XIII § 1.

2

The text is at best ambiguous whether the Punishment Clause modifies the entire

3 clause “neither slavery nor involuntary servitude” or just “involuntary servitude.” The

4 better reading is the more limited one. The Thirteenth Amendment is an absolute

5 prohibition on slavery, with no exceptions. The limited “punishment” exception applies

6 only to involuntary servitude. As one scholar explains: “[t]extually, the convict exception

7 to the Thirteenth Amendment applies only to conditions of involuntary servitude and not

8 to slavery.” Andrea C. Armstrong, Slavery Revisited in Penal Plantation Labor, 35 Seattle

9 U. L. Rev. 869, 872 (2012).

10

This reading is supported by Justice Harlan’s dissent in Robertson v. Baldwin, 165

11 U.S. 275 (1897). One year after his dissent in Plessy v. Ferguson, he wrote: “Slavery exists

12 wherever the law recognizes a right of property in a human being, but slavery cannot exist

13 in any form within the United States. The thirteenth amendment uprooted slavery as it once

14 existed in this country, and destroyed all of its badges and incidents. It established freedom

15 for all.” Id. at 292. Justice Harlan then went on to address involuntary servitude separately,

16 stating: “As to involuntary servitude, it may exist in the United States; but it can only exist

17 lawfully as a punishment for crime of which the party shall have been duly convicted. Such

18 is the plain reading of the constitution.” Id.

19

As discussed above, the Complaint plausibly alleges that the Plaintiffs are, in effect,

20 slaves. See supra at 5-9, 11-12. The Punishment Clause therefore does not apply.

21

C. The Department’s largely pro se caselaw did not fully analyze the

22

issues.

23

The cases cited by the Department are unpersuasive and in no way establish that

24 incarceration in private prisons is constitutional.

25

Judge Posner’s opinion in Pischke v. Litscher granted permission to the pro se

26 petitioners to refile their claims as civil rights suits under section 1983, and the statement

27 quoted by the Department was unreasoned dicta related to the potential viability of such

28 claims. 178 F.3d 497, 500 (7th Cir. 1999). Pischke spawned further cases that mechanically

15

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 20 of 33

1 cite Pischke without undergoing any real analysis. The Department’s remaining cases were

2 also all brought by pro se litigants who either did not raise Thirteenth Amendment claims

3 or raised the issues only superficially. See Mot. 9-10. None of those courts were confronted

4 with arguments about the appropriate limits of the Punishment Clause.

5

Finally, the Department cites Richardson v. McKnight, 521 U.S. 399, 401 (1997).

6 Mot. 10. There, the Supreme Court concluded that private prison guards were not entitled

7 to qualified immunity. The Department claims it would be “odd for the Supreme Court to

8 reach that issue if it harbored any doubts about the constitutionality of private

9 incarceration.” Mot. 10.

10

This dog-that-didn’t-bark theory makes no sense. “It is only in exceptional cases”

11 that “questions not pressed or passed upon below are reviewed” by the Supreme Court.

12 Youakim v. Miller, 425 U.S. 231, 234 (1976). That is why “[q]uestions which merely lurk

13 in the record, neither brought to the attention of the court nor ruled upon, are not to be

14 considered as having been so decided as to constitute precedents.” Cooper Indus., Inc. v.

15 Aviall Servs., Inc., 543 U.S. 157, 170 (2004). Richardson’s silence on the constitutionality

16 of private prisons says nothing about the Court’s views on this topic. The Department has

17 not cited any binding cases holding that incarceration in private prisons does not violate

18 the Thirteenth Amendment.

19 II. The Complaint States A Procedural Due Process Claim.

20

Plaintiffs raise two independent procedural due process claims. The first challenges

21 the decision to place an individual at a private prison. For this claim, the Department raises

22 only a single argument: that placement at a particular facility can never implicate a “liberty

23 interest” triggering due process protections. But the Supreme Court has held otherwise.

24 Placement at a facility can implicate a liberty interest, infra § II.A. and a liberty interest is

25 implicated here, infra § II.B.

26

Second, the Complaint states a structural bias claim. Compl. ¶ 88. The Department

27 never addressed this claim. The private prisons make decisions that affect the length of the

28 prisoners’ sentences while having a financial incentive to ensure those sentences are longer.

16

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 21 of 33

1 These allegations also state a procedural due process claim. Infra § II.C.

2

A. Placement at a particular facility can implicate a liberty interest.

3

The Department’s entire due process argument is premised on a single legal

4 contention: that placement at a particular facility can, as a categorical matter, never

5 implicate a liberty interest triggering due process protections. Mot. 12

6

That premise is wrong. The Department ignores Wilkinson v. Austin, 545 U.S. 209

7 (2005). That case concerned a procedural due process claim involving placement at a

8 particular facility: Ohio State Penitentiary, referred to as “OSP.” Id. at 213. The Court

9 concluded “that the inmates have a protected liberty interest in avoiding assignment at

10 OSP.” Id. at 220. It is accordingly not the case that placement in a facility can never

11 implicate a liberty interest.

12

The Department relies primarily on two cases: Meachum v. Fano, 427 U.S. 215

13 (1976) and Olim v. Wakinekona, 461 U.S. 238 (1983). Mot. 12-13. Those cases were issued

14 over 20 years before Wilkinson. Both cases involve circumstances that do not apply here.

15 Meachum dealt with a transfer from one state-run facility to another. 427 U.S. at 216-17.

16 Olim merely held that a transfer to a facility in another state does not in and of itself

17 implicate a liberty interest. 461 U.S. at 248. Neither has anything to do with the unique

18 concerns that arise from placement in private, for-profit prisons.

19

The Department’s reliance on White v. Lambert is also misplaced. See Mot. 13-14.

20 That case was decided before Wilkinson as well. Additionally, White was decided in the

21 context of a § 2254 habeas petition. White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004)

22 (“28 U.S.C. § 2254 is the proper jurisdictional basis for his habeas petition.”). As the

23 Department’s block quotation demonstrates, Mot. 14, the Court was accordingly required

24 to analyze whether the state court’s determination was “‘contrary to’ or ‘an unreasonable

25 application of, clearly established Federal law’” as determined by the Supreme Court. Id.

26 at 1013 (quoting 28 U.S.C. § 2254(d)(1)). That provision of the habeas statute “refers to

27 the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” Williams v.

28 Taylor, 529 U.S. 362, 412 (2000). In other words, the petitioner there could only succeed

17

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1 if his arguments were clearly established by Supreme Court holdings. That high standard

2 of review does not apply here.

3

Finally, the Department sets forth string cites of non-binding cases purportedly

4 supporting its analysis. Mot. 13, 14. Every one of those cases was brought by a pro se

5 plaintiff, where the court did not have the benefit of a fully fleshed out and counseled

6 argument. The cases generally have limited-to-no reasoning to add any persuasive value.

7 All either were decided before Wilkinson (Pischke, Frazier, Poulos, Green, Lewis) or do

8 not mention Wilkinson (Gering, Rhodes, Ohman, Adkins). And many do not even involve

9 placement in private prisons at all (Green, Lewis, Ohman, Adkins).

10

Contrary to the cases cited by the Department, placement in a particular facility can

11 implicate a liberty interest. And for the reasons addressed below, the Complaint plausibly

12 states that a liberty interest is implicated here.

13

B. The Complaint sufficiently alleges a liberty interest.

14

The Department never addresses the standard for determining whether a liberty

15 interest is implicated—a standard which requires a factual, case-by-case analysis.

16

A liberty interest is implicated if the government “imposes atypical and significant

17 hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v.

18 Conner, 515 U.S. 472, 484 (1995); see also Wilkinson, 545 U.S. at 223 (applying Sandin

19 standard to placement at OSP). “Sandin requires a factual comparison between conditions

20 in general population” and the conditions faced by the inmate, “examining the hardship

21 caused by the prisoner’s challenged action in relation to the basic conditions of life as a

22 prisoner.” Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (emphasis added).

23 Determining whether a “condition or combination of conditions or factors would meet the

24 test requires case by case, fact by fact consideration.” Keenan v. Hall, 83 F.3d 1083, 1089

25 (9th Cir. 1996).

26

In Wilkinson, a combination of factual circumstances working together meant that

27 placement at Ohio State Penitentiary implicated a liberty interest. The Court relied on: (1)

28 the harsh conditions there, (2) the indefinite duration of the placement, which was reviewed

18

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1 only annually; and (3) that placement disqualified in inmate for parole. Wilkinson, 545 U.S.

2 at 223. The Court explained that “[w]hile any of these conditions standing alone might not

3 be sufficient to create a liberty interest, taken together they impose an atypical and

4 significant hardship within the correctional context.” Id. at 224. “It follows,” the Court

5 explained, “that respondents have a liberty interest in avoiding assignment to OSP.” Id.

6

Of course, placement at a private prison does not raise exactly the same concerns

7 that placement in a maximum security prison did in Wilkinson. But similar factors show

8 that the Complaint’s allegations provide the factual support to plausibly suggest a liberty

9 interest is implicated, even if a single factor taken alone might potentially not be sufficient.

10 Particularly for this sort of case-by-case factual analysis, dismissal is inappropriate here.

11

The perverse incentives that result from a for-profit prison collude to create the

12 conditions that lead to a liberty interest being implicated. Many of these issues are

13 discussed in more detail above (at 3-9) and so do not need to be repeated. But to summarize,

14 the conditions at private prisons are worse. Due to these incentives to keep costs down,

15 “private prisons experience greater deprivations of liberty and safety compared to

16 prisoners.” Compl. ¶ 35. That stems from “higher levels of incident reporting, violence,

17 lockdowns” while “under the supervision of less trained and experienced security staff”

18 which “affects safety and security.” Compl. ¶¶ 35-36; see also Compl. ¶ 34 (detailing

19 reduced programs and services).

20

These incentives are not just an abstract issue. They cause real consequences for

21 real people. For example, “[a] review of federal prisons concluded that ‘contract prisons

22 incurred more safety and security incidents per capita than comparable BOP institutions.

23 Ex. C at 44, Office of the Inspector General, Review of the Federal Bureau of Prisons’

24 Monitoring of Contract Prisons (Aug. 2016), https://www.oversight.gov/sites/default/

25 files/oig-reports/e1606.pdf. Private prisons “had higher rates of assaults, both by inmates

26 on other inmates and by inmates on staff.” Id. at ii. They also had “more frequent incidents

27 of . . . uses of force, [and] lockdowns.” Id. at 44.

28

Particularly problematic is that the financial structure of prison privatization means

19

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1 the prisoners are commodified in a way that treats them like slaves, for the reasons

2 discussed above (at 5-9, 11-12). See Compl. ¶¶ 31, 43, 56, 76. Their life is reduced to a

3 series of compensated man-days worth $21.41 of profit. Plaintiffs clearly have a liberty

4 interest to not be treated like property.

5

Like in Wilkinson, placement at a private facility is indefinite within the time period

6 of a prisoner’s sentence. On the face of the statute, there is not even a procedure akin to the

7 annual review period which was present in Wilkinson. A.R.S. § 41-1609.02. The duration

8 of placement in a private prison is “[u]nlike the 30-day placement in Sandin.” Wilkinson,

9 545 U.S. at 224.

10

Finally, the embedded profit incentives makes placement in a private prison

11 increasingly risky to prisoners regarding the length of time someone stays incarcerated.

12 The system is designed and operated to incarcerate people for longer periods of time and

13 with increased recidivism. Compl. ¶ 61(c). The private prisons’ power to “write up”

14 prisoners for incidents affects many aspects of their lives, including early release time

15 credits, the possibility of parole, and release from custody. Compl. ¶¶ 32(d), 32(f).

16

There are numerous real-world examples of this. The federal review of private

17 prisons concluded they had more “guilty findings on inmate discipline charges, and

18 selected categories of grievances.” Ex. C at 44. In Mississippi, the average private prisoner

19 was incarcerated for 85 to 90 extra days compared to those in public prisons. Ex. B, Anita

20 Mukherjee, Impacts of Private Prison Contracting on Inmate Time Served and Recidivism,

21 Am. Econ. J: Econ Pol. 21 (Jul. 30, 2020). The New Mexico Corrections Department found

22 that prisoners at the CoreCivic facility (known then as CCA) lost good time credits eight

23 times more frequently than prisoners in a state institution. Lucas Anderson, Kicking the

24 National Habit: The Legal and Policy Arguments for Abolishing Private Prison Contracts,

25 39 Pub. Cont. L.J. 113, 136 n.53 (2009). In Tennessee, private prison guards have said that

26 they were encouraged to put prisoners in administrative segregation because it added an

27 extra 30 days to their sentence, earning the company approximately $1,000 extra. Id.

28

Cost cutting also affects the length of the sentence. For example, Florence West

20

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1 does not offer programs public prisons offer permitting prisoners to qualify for sentence

2 reductions. Compl. ¶ 33.

3

At this stage, no contractual or statutory provision can override these allegations

4 which must be accepted as true. To the extent the Department points to any theoretical

5 required oversight, that cannot contradict the Complaint’s allegations regarding what is

6 actually happening.

7

All these factors together plausibly suggest a liberty interest is implicated in that

8 placing individuals in private prisons who aim to turn a profit on that incarceration is both

9 “atypical” and “significant.” Sandin, 515 U.S. at 484. Because the “interplay” between all

10 these factors “implicates factual questions,” the due process claim should not be resolved

11 on a motion to dismiss. See McKee v. Peoria Unified Sch. Dist., 963 F. Supp. 2d 911, 928

12 (D. Ariz. 2013) (Snow, J.).

13

C. The Complaint also states a structural bias claim.

14

That the private prisons make decisions regarding matters affecting a prisoner’s

15 release date while having a financial incentive to keep them incarcerated longer is not only

16 part of the totality of circumstances implicating a liberty interest, it is also itself a due

17 process violation—sometimes called a “structural bias” claim. See Marable v. Nitchman,

18 No. 05-cv-1270, 2006 WL 2572065, at *7 (W.D. Wash. Sept. 5, 2006).

19

The Complaint alleges that “[p]rivatization of prisons creates biased jailers and

20 prison administrators who have financial incentives that are in conflict with the release of

21 prisoners . . . in violation of the Due Process Clauses.” Compl. ¶ 88. Notably, the

22 Department never addressed this issue.

23

“Every procedure which would offer a possible temptation to the average man as a

24 judge to forget the burden of proof required to convict the defendant, or which might lead

25 him not to hold the balance nice, clear, and true between the state and the accused denies

26 the latter due process of law.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 878 (2009).

27 “[T]hose with substantial pecuniary interest” should not be the decisionmakers. Gibson v.

28 Berryhill, 411 U.S. 564, 579 (1973). “[T]he financial stake need not be as direct or

21

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1 positive.” Id. And “actual influence [i]s not necessary.” Cain v. White, 937 F.3d 446, 453

2 (5th Cir. 2019). This inquiry is based on a “realistic appraisal of psychological tendencies

3 and human weakness.” Caperton, 556 U.S. at 883.

4

The Court has struck down numerous schemes where a decisionmaker’s financial

5 incentives injected the potential for bias. Connally v. Georgia is a good example. 429 U.S.

6 245 (1977). There, justices of the peace received $5 for every search warrant issued but

7 received no money for reviewing and denying an application. Id. at 547. So “his financial

8 welfare” was “enhanced by positive action and is not enhanced by negative action.” Id. at

9 548. The Court held this system was unconstitutional. Id. at 549; see also Ward v.

10 Monroeville, 409 U.S. 57, 57 (1972) (unconstitutional for a mayor to decide ordinance

11 violations where fees and costs from violations were part of the village’s income).

12

While not based on a potential for financial bias, the Supreme Court has also held

13 that “revocation of parole should be made by someone not directly involved in the case”

14 such as the parole officer who recommended the revocation in the first place. Morrissey v.

15 Brewer, 408 U.S. 471, 485 (1972). Additionally, “counsel for a party that is the beneficiary

16 of a court order may not be appointed as prosecutor in a contempt action alleging a violation

17 of that order” because that arrangement lacks the assurance they would wield their

18 prosecutorial power “guided solely by their sense of public responsibility for the attainment

19 of justice.” Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 809, 814 (1987).

20

The private prison companies structure their system in ways that increase the length

21 of prisoners’ sentences, and they do so because of their financial incentives. One

22 component of this structure is a pressure on the private prison guards to maintain a profit

23 for their employers. They “are not principally motivated by a desire to further the interests

24 of the public at large. Rather, as employees of a private corporation seeking to maximize

25 profits, correctional officers act, at least in part, out of a desire to maintain the profitability

26 of the corporation for whom they labor, thereby ensuring their own job security.” McKnight

27 v. Rees, 88 F.3d 417, 424 (6th Cir. 1996). The combination of the power to incarcerate

28 people for longer and the financial incentive to do so provides sufficient facts to plausibly

22

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1 state a structural bias claim.

2 III. The Complaint States Equal Protection And Substantive Due Process Claims.

3

A. The Department’s circular argument would immunize all state actors

4

from equal protection claims.

5

The Department primarily argues that the equal protection claim must fail because

6 Plaintiffs cannot demonstrate that inmates in private prisons are “similarly situated” to

7 those placed in public prisons. According to the Department, those placed in private prisons

8 and those placed in public prisons cannot be considered similarly situated because

9 Plaintiffs “expressly allege that private facilities provide different opportunities and present

10 different conditions than state facilities.” Mot. 15.

11

In other words, the Department is arguing that once a state actor treats two groups

12 differently, then those groups are no longer similarly situated, extinguishing the claim. That

13 circular reasoning would immunize against all equal protection claims. Imagine a case

14 challenging a requirement that children of one race go to certain schools that are worse

15 than the schools for another race. Under the Department’s theory, the allegation that the

16 schools are different would doom the claim. It gets the Equal Protection Clause totally

17 backward to say that allegations that a state actor is arbitrarily treating one group worse

18 than another renders a claim legally deficient. That is the entire nature of the claim.

19

The Court must look at whether the two groups are similarly situated before the

20 effects of the discriminatory treatment, not after or because of them.3 Before the

21 Department determines whether a prisoner will be incarcerated in a private or state-run

22 facility, they are materially indistinguishable. Compl. at ¶¶ 20, 35-36. And to be similarly

23 situated, the groups need not even be “similar in all respects.” Arizona Dream Act Coal. v.

24 Brewer, 855 F.3d 957, 966 (9th Cir. 2017). Rather, the touchstone is whether Plaintiffs are

25 “similarly situated for all relevant purposes” to those who are placed in public prisons. See

26

27 3 The Government’s series of pro se cases all challenged facility-specific policies, not

28

placement in a facility itself. Mot. 14-15. None involved private prisons except Frazier, where the private nature of the prison was not part of the claim or the court’s analysis.

23

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1 Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“[The Clause] keeps governmental

2 decisionmakers from treating differently persons who are in all relevant respects alike.”).

3 The Department’s “similarly situated” argument is absurd and should be rejected.

4

B. The Complaint’s factual allegations plausibly state an equal protection

5

and due process violation.

6

Finally, the Department argues in a paragraph that “the privatization statutes bear a

7 rational relationship to a legitimate state purpose.” Mot. 15 (internal quotation marks

8 omitted). Though the Department does not directly address substantive due process, see
9 Compl. ¶ 91, presumably this argument applies to that claim as well.
10 Even assuming this test applies, the Complaint plausibly states a claim. The only
11 legitimate interest that the Department cites is alleged “cost savings.” Mot. 15 (“For
12 example, private contracts offer ‘cost savings’ for the State.”). Determining whether the
13
14 statute actually bears a rational relationship to that purpose requires facts. The statutory

15 scheme technically requires private prisons to offer a cost savings. A.R.S. § 41-1609.01(F)-

16 (G); Compl. ¶ 28. In order to evaluate compliance with that requirement, the Arizona

17 Office of the Auditor General was originally required to perform bi-annual audits of the

18 private and public prisons’ respective costs. A.R.S. § 41-1609.01(G), (K) (2003 version).

19 The first report found that private prisons were, in fact, slightly more expensive than public
20 prisons. Ex. D, State of Arizona Office of the Auditor General, Department of Corrections
21 – Prison Population Growth 20-21 (2010), https://www.azauditor.gov/sites/default/files/ 22
10-08_0.pdf. 23
After that first report, the bi-annual audit requirement was eliminated. See 2012 24
Ariz. Legis. Serv. Ch. 302 (S.B. 1531) § 41-1609.01 (eliminating “biennial comparison” 25
requirement). This rendered it impossible to determine whether private prisons were 26 27 complying with the cost-saving requirement, which was ironically kept in place. At a
28 minimum, there are sufficient facts alleged to plausibly suggest that private prisons are not

24

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1 rationally related to the Department’s stated interest.

2

But the Department gives only a cursory explanation for why that standard applies

3 in the first place. In Obergefell v. Hodges, the Court did not ask whether the classification

4 was rationally related to a legitimate government interest nor whether it was narrowly

5 tailored to a compelling government interest. 576 U.S. 644 (2015). Instead, the Court took

6 a more holistic approach guided by both the Equal Protection and Due Process Clauses.

7

The Court explained that “[t]he Due Process Clause and the Equal Protection Clause

8 are connected in a profound way, though they set forth independent principles. Rights

9 implicit in liberty and rights secured by equal protection may rest on different precepts and

10 are not always co-extensive, yet in some instances each may be instructive as to the

11 meaning and reach of the other.” Id. at 672. “In any particular case one Clause may be

12 thought to capture the essence of the right in a more accurate and comprehensive way, even

13 as the two Clauses may converge in the identification and definition of the right.” Id.

14

Obergefell builds on prior cases concluding there are certain interests that are

15 sufficiently weighty that the “rational basis” test should not apply even when no

16 fundamental right or suspect class is present. See e.g., Plyler v. Doe, 457 U.S. 202, 263.

17 (1982) (Blackmun, J. concurring) (“Given the extraordinary nature of the interest involved

18 . . . the State must offer something more than rational basis for its classification” even

19 though the right was not deemed fundamental and no suspect class was implicated).

20

The Plaintiffs have a fundamental right not to be commodified and, in essence,

21 turned into property. Yet even if that were not a fundamental right on its own, the full

22 context shows a more searching inquiry is appropriate than what the Department proposes.

23 It is not just that those in private, for-profit prisons are being commodified. It is also that

24 the Department makes an arbitrary determination to determine who will be subject to that

25 commodification by being placed in a private prison and who will not be.

26

This equal protection/due process analysis is an inherently factual one not suited for

27 a motion to dismiss before Plaintiffs have an opportunity to prove their claims. The

28 Complaint plausibly pleads a violation of the Equal Protection and Due Process Clauses.

25

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1 IV. The Complaint States An Eighth Amendment Claim.

2

The Eighth Amendment prohibits cruel and unusual punishment, a standard based

3 on “the evolving standards of decency that mark the progress of a maturing society.”

4 Graham v. Fla., 560 U.S. 48, 58 (2010). “The basic concept underlying the Eighth

5 Amendment is nothing less than the dignity of man.” Brown v. Plata, 563 U.S. 493 (2011).

6 The Court may consider “objective indicia of society’s standards, as expressed in

7 legislative enactments and state practice.” Graham, 560 U.S. at 61, and must also “bring

8 its independent judgment to bear.” Roper v. Simmons, 543 U.S. 551, 574 (2005).

9

The Complaint plausibly suggests an Eighth Amendment violation under this

10 standard. “Modern understandings of human rights recognize that treating plaintiffs as

11 property, and subjecting plaintiffs to jailers that profit from incarceration and that have

12 disincentives to see plaintiffs released is analogous to slave jails … is both cruel and

13 unusual, and violates each plaintiff’s human dignity.” Compl. ¶ 84.

14

When evaluating other states’ practices to determine “objective indicia” of society’s

15 standards, “[i]t is not so much the number of these States that is significant, but the

16 consistency of the direction of change.” Atkins v. Virginia, 536 U.S. 304, 315 (2002).

17 Private prisons are a relatively new phenomenon, beginning in force only in the 1980s. But

18 now, increasing numbers of states have moved to ban private prisons, ending their

19 experiments with this system. The legislative purpose accompanying the New York law

20 outlawing private prisons explains: “hungry, bottom line adventurers appear ready to take

21 the public money.” New York Bill Jacket, 2007 S.B. 4118, Ch. 202; see also 730 Ill. Comp.

22 Stat. Ann. 140/2. Other states that banned private prisons include Illinois, Iowa, Nevada,

23 Washington, and starting this year, California. As for the states without prohibitions, nearly

24 half the remaining states have no private prisons.

25

The Court may also look to the views of “religious communities in the United

26 States” as well as “organizations with germane expertise.” Atkins, 536 U.S. at n.21 (2002).

27 Numerous religious groups have adopted resolutions denouncing private prisons. See Ex.

28 E at 1-80 (resolutions of the United Methodist Church, the Presbyterian Church, the U.S.

26

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 31 of 33

1 Conference of Catholic Bishops, Catholic Bishops of the South, the Episcopal Church, and

2 the Unitarian Universalist Association). Other groups have similarly criticized private

3 prisons including the American Bar Association, American Correctional Officers, the

4 National Association of Criminal Defense Lawyers, Japanese Americans Citizens League,

5 and the NAACP. Id. at 81-92. And the Supreme Court of Israel has held that placement at

6 private prisons “violates the constitutional rights to personal liberty and human dignity.”

7 Ex. F, HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance at 34

8 (Isr. Nov. 19, 2009).

9 V. The Facial Challenge Should Not Be Dismissed.

10

The Department claims the facial challenge should be dismissed because it relies on

11 “presumptions” that are “cynical[].” Mot. 17. This argument flies in the face of the 12(b)(6)

12 standard. What the Department calls “presumptions” are simply the factual allegations in

13 the Complaint which must be accepted as true. Mot. 17.

14

This is not an issue that the Court needs to or should resolve at this stage. “[T]he

15 distinction between facial and as applied challenges is not so well defined that it has some

16 automatic effect or that it must always control the pleadings and disposition in every case

17 involving a constitutional challenge.” Citizens United v. Fed. Election Comm’n, 558 U.S.

18 310, 331 (2010). The distinction “goes to the breadth of the remedy employed by the Court,

19 not what must be pleaded in a complaint.” Id.

20

Here, Plaintiffs are challenging Arizona’s system of privatized prisons—a system

21 that is authorized by the current statutory scheme. The claim does not necessarily fit neatly

22 into the “facial” or “as applied” bucket. In later proceedings when the Court has facts and

23 evidence at its disposal, it can determine what the appropriate remedy is for the

24 constitutional violations, and whether that remedy should be a declaration that Arizona’s

25 statutes authorizing the privatization of prisons should be declared unconstitutional.

26

CONCLUSION

27

The motion to dismiss should be denied. If this Court dismisses any of the claims in

28 the Complaint, Plaintiffs request leave to file an amended complaint.

27

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1 DATED: September 28, 2020 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

By: /s/ Lousene M. Hoppe _____________ John Dacey (004962) johndacey@abolishprivateprisons.org Robert E. Craig III (034989) robertcraig@abolishprivateprisons.org Abolish Private Prisons, Inc. 125 N 2nd Street, Suite 110, Box 521 Phoenix, AZ 85004 Tel: 602-737-0600 Thomas Zlaket (001819) 310 S. Williams Blvd., Suite 170 Tucson, AZ 85711 tom@zlaketlaw.com Tel: 520-750-0250 Lousene Hoppe (MN Bar No. 0387171) (pro hac vice) Jacob Baer (MN Bar No. 0391107) (pro hac vice) 200 South 6th St #4000 Minneapolis, MN 55402 LHoppe@fredlaw.com JBaer@fredlaw.com Tel: 612-492-7000
28

Case 2:20-cv-01182-GMS-JZB Document 17 Filed 09/29/20 Page 33 of 33
1 CERTIFICATE OF SERVICE
2 I hereby certify that on September 28, 2020, I electronically transmitted the
3 attached document to the Clerk’s Office using the CM/ECF System for filing and
4 transmittal of a Notice of Electronic Filing to the CM/ECF registrants on record in
5 this matter.
6 7
/s/ Emmy Nelson 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
29