FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY NIELSEN; BRIAN 

BOUDREAU, on behalf of themselves 

and all others similarly situated; 

ARIZONA STATE CONFERENCE 

OF THE NATIONAL 

ASSOCIATION FOR THE 

ADVANCEMENT OF COLORED 

PEOPLE, as an organization and on 

behalf of its members, 

Plaintiffs-Appellants, 

 v. 

RYAN THORNELL, Director, 

Arizona Department of Corrections, 

Rehabilitation & Reentry, in his 

official capacity, 

Defendant-Appellee.

No. 22-15302 

D.C. No. 

2:20-cv-01182-

DLR-JZB 

OPINION

Appeal from the United States District Court

for the District of Arizona

Douglas L. Rayes, District Judge, Presiding

Argued and Submitted May 15, 2023

Phoenix, Arizona
2 NIELSEN V. THORNELL

Filed May 21, 2024 

Before: Jacqueline H. Nguyen, Daniel P. Collins, and 

Kenneth K. Lee, Circuit Judges. 

Opinion by Judge Lee; 

Concurrence by Judge Nguyen; 

Dissent by Judge Collins 

SUMMARY*

Prisoner Civil Rights

The panel affirmed the district court’s dismissal of an 

action brought by the NAACP’s Arizona chapter and two 

former prisoners challenging the constitutionality of private 

prisons, specifically alleging that private prisons, motivated 

by profit, cut costs resulting in diminished safety and 

security as well as reduced programming and services. 

The panel held that it had jurisdiction over the appeal 

because the NAACP adequately established organizational 

standing at the pleading stage, and Arizona chose not to seek 

limited jurisdictional discovery under Rule 12(b)(1) to rebut 

the NAACP’s broad standing allegations. 

Addressing plaintiffs’ procedural due process 

challenges, inmates do not have a protected liberty interest 

in avoiding private prisons because such prisons do not 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
NIELSEN V. THORNELL 3

impose an “atypical or significant hardship” beyond 

ordinary prison conditions. Moreover, plaintiffs’ 

speculative inferences failed to plausibly allege that private 

prisons have a financial incentive to keep prisoners 

incarcerated longer and that they do so by manipulating 

disciplinary proceedings. Arizona law expressly bars 

private prisons from disciplining prisoners or making 

decisions affecting their sentence credits or release dates, 

and plaintiffs’ complaint provided no factual allegations that 

plausibly suggested that private prison employees defy this 

law. 

The Thirteenth Amendment does not prohibit 

incarceration in a private prison. The Amendment does not 

forbid prison labor requirements, and incarceration in a 

private prison does not remotely approximate chattel 

slavery. 

Plaintiffs failed to plausibly allege that confinement in a 

private prison violates the Eighth Amendment. Inchoate 

allegations of an intangible offense to dignity—at least as 

asserted here— could not support an Eighth Amendment 

claim, and plaintiffs failed to establish that incarceration in 

a private prison poses a serious threat to prisoners’ physical 

well-being.

Finally, the Fourteenth Amendment’s Due Process and 

Equal Protection Clauses do not prohibit incarceration in a 

private prison. Plaintiffs cannot not establish that a right 

against confinement in a private prison is deeply rooted in 

this nation’s historical tradition nor that Arizona’s private 

prison system discriminates against a suspect 

class. Applying rational basis scrutiny, Arizona has a 

legitimate interest in increasing the efficiency of its 
4 NIELSEN V. THORNELL

operations, and privatization is a rational attempt to achieve 

this goal. 

Concurring in the judgment, Judge Nguyen agreed that 

plaintiffs’ constitutional challenge to Arizona’s private 

prison scheme fell short. She wrote separately to emphasize 

that the panel’s decision is limited only to the deficiencies in 

this particular case and did not decide whether every use of 

private prisons necessarily passes constitutional muster. 

Dissenting, Judge Collins wrote that the operative 

complaint fails to establish that NAACP’s Arizona chapter 

has either direct organizational standing on its own behalf or 

representational standing on behalf of others, and that the 

claims of the putative class representatives were 

moot. Accordingly, the panel lacked jurisdiction to reach 

the merits. Judge Collins would vacate the district court’s 

judgment and remand with instructions to consider whether 

to allow amendment of the complaint to cure this 

jurisdictional deficiency.

COUNSEL

John R. Dacey (argued) and Robert E. Craig, III, Abolish 

Private Prisons, Phoenix, Arizona; Lousene Hoppe, 

Fredrikson & Byron PA, Minneapolis, Minnesota; Thomas 

A. Zlaket, Thomas A. Zlaket PLLC, Tucson, Arizona; for 

Plaintiffs-Appellants. 

Nicholas D. Acedo (argued), Rachel Love, and Daniel P. 

Struck, Struck Love Bojanowski & Acedo PLC, Chandler, 

Arizona, for Defendant-Appellee.
NIELSEN V. THORNELL 5

Lourdes Rosado and Andrew Case, LatinoJustice PRLDEF, 

New York, New York, for Amicus Curiae LatinoJustice 

PRLDEF.

Andre Douglas Pond Cummings, University of Arkansas at 

Little Rock, William H. Bowen School of Law, Little Rock, 

Arkansas, for Amicus Curiae University of Arkansas at 

Little Rock Law Professors and Graduates.

Roger A. Burrell, Bayham Jerman, Phoenix, Arizona, for 

Amici Curiae Notre Dame Center for Social Concerns, Faith 

in Action, Network Lobby, George Enderle, and Michael 

Hebbeler

Kari Hong, Florence Immigrant & Refugee Rights Project, 

Tucson, Arizona; Mark R. Conrad, Liz Kim, and William J. 

Cooper, Conrad Metlitzky Kane LLP, San Francisco, 

California; for Amici Curiae Florence Immigrant & Refugee 

Rights Project and American Immigration Lawyers 

Association, Arizona Chapter.

Erin P. Polly, K&L Gates LLP, Nashville, Tennessee, for 

Amicus Curiae The Day 1 Alliance.
6 NIELSEN V. THORNELL

OPINION

LEE, Circuit Judge:

Arizona, like many other states, relies on privately run 

prisons to house some of its inmates. The NAACP’s 

Arizona chapter and two former prisoners challenge the 

constitutionality of private prisons, alleging that their profitmotivated mission makes them less safe and secure than 

state-run prisons. While there may be compelling policy 

reasons against—or for—private prisons, there can be little 

debate that private prisons pass constitutional muster. 

Inmates do not have a protected liberty interest in 

avoiding private prisons because such prisons do not impose 

an “atypical or significant hardship” beyond ordinary prison 

conditions. Nor do the plaintiffs have a valid Thirteenth 

Amendment claim based on involuntary servitude because 

the Amendment expressly carves out an exception for 

“punishment for crime.” And their cruel and unusual 

punishment claim fails, too, because the Eighth Amendment 

does not cover the type of intrusions into prisoners’ 

“dignity” as alleged in this case. Finally, inmates do not 

have a fundamental right to be free from alleged 

commodification in private prisons.

In sum, the Constitution does not prohibit states from 

turning to private companies to help run their correctional 

systems. The plaintiffs’ arguments are better directed to 

Arizona’s representatives and the citizens who elect them—

not the courts. We affirm the district court’s dismissal of the 

lawsuit. 
NIELSEN V. THORNELL 7

BACKGROUND

Arizona law allows the state to contract with private 

companies to operate prisons. Ariz. Rev. Stat. Ann. § 41-

1609(B). By law, these contracts must provide “cost 

savings” to Arizona’s taxpayers. Id. § 41-1609.01(G). And 

today, about one-fifth of Arizona’s inmates reside in 

privately run prisons. For those inmates housed in private 

prisons, Arizona has established regulatory guardrails to 

ensure adequate care. By statute, private prisons must offer 

“a level and quality of services that are at least functionally 

equal to those that would be provided” by state-run facilities.

Id. § 41-1609.01(H). Private prisons also cannot discipline

prisoners or make decisions influencing prisoners’ sentence 

credits or release dates. Id. § 41-1609.01(M). 

The Arizona State Conference of the NAACP challenges

Arizona’s private prison system, along with two former 

prisoners who sue on behalf of a putative class of prisoners 

who are or may be incarcerated in private facilities. They 

maintain that this system is unconstitutional. They allege

that private prisons are inferior to state-run prisons because 

they are motivated by profit, leading them to cut costs and 

resulting in diminished safety and security as well as reduced 

programming and services. The plaintiffs also contend that 

private prisons have a financial incentive to keep prisoners 

incarcerated longer, which they accomplish by manipulating 

disciplinary proceedings. And the plaintiffs urge that 

incarceration in a private prison commodifies prisoners,

depriving them of dignity. 

The district court granted Arizona’s motion to dismiss 

the plaintiffs’ suit for failure to state a claim. The plaintiffs 

appeal from this order. 
8 NIELSEN V. THORNELL

STANDARD OF REVIEW

We review de novo a district court’s dismissal for failure 

to state a claim. See Sampson v. City of Los Angeles, 974 

F.3d 1012, 1018 (9th Cir. 2020). This review is more 

searching than a perfunctory rubber stamp—to survive 

dismissal, a complaint must be more than “merely consistent 

with” liability. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

557 (2007). Instead, it must “nudge[]” the plaintiff’s claims 

“across the line from conceivable to plausible,” id. at 570, 

meaning that it must allege facts that present “more than a 

sheer possibility that a defendant has acted unlawfully,” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If an innocent 

explanation for the allegations is more likely, the complaint 

does not plausibly state a claim for relief. See id. at 681. 

And of course, we discount conclusory allegations in a 

complaint because they are “not entitled to the assumption 

of truth.” Id. at 679.

ANALYSIS

I. We have jurisdiction to decide this appeal. 

At this stage of the litigation, the NAACP has adequately 

established that it has organizational standing to bring suit.

1 

Article III allows an organization to sue in its own right if it 

can allege a sufficient “personal stake in the outcome of the 

controversy.” Havens Realty Corp. v. Coleman, 455 U.S. 

363, 378–79 (1982) (quoting Village of Arlington Heights v. 

Metro. Hous. Dev. Corp., 429 U.S. 252, 261 (1977)). We 

have thus recognized that an organization has “direct 

standing to sue where it establishes that the defendant’s 

1 Because we hold that the NAACP has standing, we need not address 

whether the claims of the individual plaintiffs (who have been released 

from prison since they sued) are moot. 
NIELSEN V. THORNELL 9

behavior has frustrated its mission and caused it to divert 

resources in response to that frustration of purpose.” E. Bay 

Sanctuary Covenant v. Biden, 993 F.3d 640, 663 (9th Cir. 

2021). But this frustration must amount to a “concrete and 

demonstrable injury to the organization’s activities,” not 

“simply a setback to [its] abstract social interests.” Havens 

Realty, 455 U.S. at 379.

When we assess organizational standing, we must 

vigilantly examine the breadth of the group’s mission to 

ensure that the organization maintains a genuine and 

demonstrable commitment to that mission—independent of 

the lawsuit that it seeks to bring. See Sabra, 44 F.4th at 879–

80. Courts must remain wary of sprawling or multipronged 

mission statements that would allow an organization to have 

near limitless standing to sue. Otherwise, we run the risk of 

allowing organizations to bootstrap almost any politically 

fraught case onto their expansive mission statement and race 

to the courthouse, whether or not their lawsuit bears any 

significant connection to their actual activities. That is 

precisely the outcome that Article III seeks to avoid. See 

TransUnion LLC v. Ramirez, 594 U.S. 413, 423–24 (2021).

We have thus found standing if a substantial and clear 

connection exists between the lawsuit and the organization’s 

guiding objectives.2 But an organization cannot 

2

 Our case law often has not explained in detail what types of 

organizational activities in response to a defendant’s action constitute an 

Article III injury under Havens Realty. Most recently, we reiterated that 

“an organization may not manufacture an injury by choosing to spend 

money fixing a problem that otherwise would not affect the organization 

at all.” Fellowship of Christian Athletes v. San Jose Unified Sch. Dist., 

82 F.4th 664, 683 (9th Cir. 2023) (en banc) (citations and internal 

quotation marks omitted). That language suggests that an organization’s 
10 NIELSEN V. THORNELL

manufacture standing merely by defining its mission with 

hydra-like or extremely broad aspirational goals such as

“vindicating constitutional rights” or “ensuring equality.” 

Otherwise, Article III standing would be severely eroded as 

it would sweep in almost any case and allow a party to 

“manufacture an injury” in virtually any case “by choosing 

to spend money fixing a problem” that genuinely “would not 

affect the organization.” Fellowship of Christian Athletes, 

82 F.4th at 683. An organization with such a broad mission 

would have to show a more tangible and significant 

connection to the case. For example, that organization could 

show that it had repeatedly devoted significant resources and 

time on an issue substantially similar to the one raised in the 

lawsuit. And courts should take a hard look at an 

organization’s proffered evidence of standing for groups 

with extremely broad or multipronged missions.

mere desire to act (and in the process spend resources) to oppose a policy 

cannot confer standing to challenge that policy. On the other hand, we 

held in Sabra v. Maricopa Cnty. Cmty. Coll. Dist.—though without 

detailed analysis—that an organization had standing because the 

complaint alleged that it had to “divert [its] resources to create a 

campaign correcting the Islamophobic information in [a teacher’s] 

course materials.” 44 F.4th 867, 887 (9th Cir. 2022). Here, the 

complaint similarly alleges, among other things, that NAACP has 

expended resources “educating the public about the harms and failures 

of private-for-profit prisons.” The dissent parses the record and briefing 

in Sabra to factually distinguish that case from ours and reconciles our 

case law based on those factual distinctions. Its point is well-taken. But 

we are at the pleading stage when we construe complaints liberally—and 

Arizona chose not to conduct limited jurisdictional discovery into Article 

III standing under Rule 12(b)(1) of the Federal Rules of Civil Procedure. 

Given the virtually identical allegations in the complaints in this case and 

in Sabra as well as the procedural posture of our case, NAACP has 

shown standing at this stage. 
NIELSEN V. THORNELL 11

That said, a plaintiff’s burden to establish standing 

progresses “in the same way as any other matter on which 

the plaintiff bears the burden of proof, i.e., with the manner 

and degree of evidence required at the successive stages of 

litigation.” Meland v. Weber, 2 F.4th 838, 843 (9th Cir. 

2021) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 

(1992)). Thus, “general factual allegations” may suffice to 

establish standing at the pleading stage of a lawsuit, even 

though broad allegations would be inadequate at later stages, 

when plaintiffs must prove specific facts. Lujan, 504 U.S. at 

561.

In this case, the NAACP frames its mission extremely 

expansively: it defines it as “ensur[ing] 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.” This

mission could cover practically any subject—education, 

housing, criminal justice, economic development, and so 

on—so long as it might be framed as implicating equal 

protection. And so this sweeping allegation might well be 

insufficient to support the NAACP’s standing at a later stage 

of litigation when it would bear the burden of marshalling

specific facts to prove that ending prison privatization is in 

fact one of its central missions. See WildEarth Guardians v. 

U.S. Forest Serv., 70 F.4th 1212, 1215–16 (9th Cir. 2023). 

For example, it might have to show that it has devoted 

substantial resources to this objective or that the public 

clearly recognizes that goal as a central mission of that 

organization. 

But this case has not passed beyond the pleading stage,

and Arizona has chosen not to seek limited jurisdictional 

discovery under Rule 12(b)(1) to rebut the NAACP’s broad 

standing allegations. See Cal. Rest. Ass’n v. City of 
12 NIELSEN V. THORNELL

Berkeley, 65 F.4th 1045, 1049 (9th Cir. 2023). Given this 

procedural posture, the NAACP’s allegations establish

organizational standing at this stage. See Nat’l Council of 

La Raza v. Cegavske, 800 F.3d 1032, 1037, 1040 (9th Cir. 

2015).

II. The plaintiffs have not plausibly alleged that 

incarceration in private prisons violates prisoners’ 

procedural due process rights.

The plaintiffs bring two procedural due process 

challenges to Arizona’s private prison system: First, they 

maintain that prisoners have a protected liberty interest in 

avoiding incarceration at a private facility. Second, they 

contend that private prison employees are biased by a desire 

to shore up their employer’s bottom line, leading them to 

make disciplinary decisions that keep prisoners incarcerated 

for longer. The plaintiffs’ complaint does not plausibly 

allege facts that would support either claim. 

A. The plaintiffs have not plausibly alleged that 

prisoners have a protected liberty interest in 

avoiding placement at a private prison.

The Supreme Court has held that a prisoner has a liberty 

interest in avoiding a prison that “imposes atypical and 

significant hardship on the inmate in relation to the ordinary 

incidents of prison life.” See Wilkinson v. Austin, 545 U.S. 

209, 223 (2005) (quoting Sandin v. Conner, 515 U.S. 472, 

484 (1995)). 

But “atypical and significant hardship” is a high bar. We 

have held that prisons pose such a hardship only where they

confine prisoners to their cells for at least twenty-three hours 

a day and impose additional severe limitations on human 

contact. See Johnson v. Ryan, 55 F.4th 1167, 1197–98 (9th 
NIELSEN V. THORNELL 13

Cir. 2022); Brown v. Or. Dep’t of Corr., 751 F.3d 983, 988 

(9th Cir. 2014); Wilkinson, 545 U.S. at 214, 223–24. 

Placements that pose an automatic bar to early release may 

also pose atypical and significant hardship, see Wilkinson, 

545 U.S. at 224, but only where the placement necessarily 

affects a prisoner’s eligibility for release rather than simply 

increasing the likelihood that he will serve more time, see 

Sandin, 515 U.S. at 487.

The plaintiffs’ complaint does not plausibly allege that 

assignment to a private prison in Arizona poses anything 

close to “atypical and significant hardship.” The complaint

contains a variety of allegations that conditions at private 

prisons are worse than those at state-run prisons: it maintains 

that private prisons offer reduced “programs and services,”

impose “more lockdowns and restrictions on prisoners’ 

freedoms,” and have “higher levels of incident reporting, 

violence, [and] lockdowns.” It also alleges that prisoners in 

private prisons face longer terms of incarceration because 

they are disciplined more often, which affects their “early 

release time credits, the possibility of clemency, and release 

from custody.”3 

But the complaint lacks any allegation that private 

prisons deprive prisoners of meaningful interpersonal 

contact or that they confine prisoners to their cells for 

twenty-three hours per day—or anything approaching these 

restrictions. See Johnson, 55 F.4th at 1197–98. The 

complaint vaguely alleges that private prisons make 

decisions that can increase the time that inmates spend in 

prison, but it does not allege that placement at a private 

3 The complaint provides some studies that it argues support its 

allegations. But this outdated evidence does not stem from Arizona’s 

prison system and thus does little to shore up the plaintiffs’ claims.
14 NIELSEN V. THORNELL

facility automatically disqualifies a prisoner from early 

release. See Wilkinson, 545 U.S. at 224; Sandin, 515 U.S. at 

487. In short, the complaint does not plausibly allege that 

prisoners have a protected liberty interest in avoiding a 

private prison.

The plaintiffs’ argument fails for a more fundamental 

reason as well. Conditions naturally vary from prison to 

prison within any correctional system, including between

state-run prisons. Some may offer more programs and 

services than others; some may have a history of imposing

more severe lockdowns because of disciplinary problems; 

and other facilities may have a higher rate of incident 

reporting for varying reasons. If we accepted the plaintiffs’ 

argument, an inmate could challenge his term in any prison 

(including state-run prisons), asserting that another prison 

offers better conditions or more programs and services. 

But the Constitution does not give prisoners a right to 

demand placement at their preferred facility. We decline the 

plaintiffs’ invitation to meddle in “a wide spectrum of 

discretionary actions that traditionally have been the 

business of prison administrators rather than of the federal 

courts.” See Johnson, 55 F.4th at 1196 (quoting Meachum 

v. Fano, 427 U.S. 215, 225 (1976)). 

B. The plaintiffs have not plausibly alleged that 

private prison employees face an undue risk of 

financial bias.

We have held that a person should not adjudicate a 

matter if he or she has “a direct, personal and substantial 

pecuniary interest” in it. See Hurles v. Ryan, 752 F.3d 768, 

789 (9th Cir. 2014). More precisely, a person should refrain 

from deciding a matter if his or her interest “poses such a 

risk of actual bias or prejudgment that the practice must be 
NIELSEN V. THORNELL 15

forbidden if the guarantee of due process is to be adequately 

implemented.” See Echavarria v. Filson, 896 F.3d 1118, 

1128 (9th Cir. 2018) (quoting Caperton v. A.T. Massey Coal 

Co., 556 U.S. 868, 883–84 (2009)). 

Here, the plaintiffs invoke a chain of speculative 

inferences to argue that private prison employees are biased 

in disciplinary proceedings: private prisons generate revenue 

based on the number of prisoners that they house; the longer 

the prisoners stay there, the more money the prison makes; 

private prison employees want to maximize their employer’s 

profits; and thus these employees intentionally make 

disciplinary decisions that keep prisoners incarcerated 

longer and fatten their employer’s bottom line. 

But the complaint’s vague and implausible allegations 

fall short of showing that private prison employees have a 

“direct, personal and substantial” interest in the outcome of 

any disciplinary determination. See Hurles, 752 F.3d at 789. 

The complaint provides no detail to bolster its assertion that

private prison employees “act, at least in part, out of a desire 

to maintain the profitability of the corporation for whom 

they labor.” Nor does the complaint identify any policy that 

provides any financial incentive for private prison 

employees to keep inmates incarcerated longer.

The plaintiffs’ theory of rigged disciplinary decisions

faces another hurdle: Arizona law expressly bars private 

prisons from disciplining prisoners or making decisions 

affecting their sentence credits or release dates. Ariz. Rev. 

Stat. Ann. § 41-1609.01(M). In face of this law, the 

complaint baldly asserts that “the operators of the Arizona 

private prisons—not [the state]—are the true 

decisionmakers” in disciplinary proceedings. But the

complaint provides no factual allegations that plausibly 
16 NIELSEN V. THORNELL

suggest that private prison employees defy this law. Its 

conclusory assertion that employees are “vulnerable to 

pressure to violate or ignore rules in order to increase 

corporate profits,” does not “nudge[]” the plaintiffs’ theory

“across the line from conceivable to plausible.” See 

Twombly, 550 U.S. at 570.

III. The Thirteenth Amendment does not prohibit 

incarceration in a private prison.

The Thirteenth Amendment to the United States 

Constitution commands: “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.” 

U.S. Const. amend. XIII, § 1.

The plaintiffs urge that incarceration in a private prison 

violates the Thirteenth Amendment in two ways: (1) private 

prisons require prisoners to work, and (2) private prisons 

profit from maintaining custody of prisoners, which the 

plaintiffs argue equates to slavery.

These arguments falter based on the Thirteenth 

Amendment’s plain language. In the Punishment Clause—

“except as a punishment for crime whereof the party shall 

have been duly convicted”—the Amendment expressly

carves out incarceration. Thus, we have held that the 

Thirteenth Amendment does not forbid prison labor

requirements. See Serra v. Lappin, 600 F.3d 1191, 1196 (9th 

Cir. 2010); see also United States v. Kozminski, 487 U.S. 

931, 942 (1988).

And of course, incarceration in a private prison does not 

remotely approximate chattel slavery. When the Thirteenth 

Amendment was adopted, slavery meant not just “a system 
NIELSEN V. THORNELL 17

of exploitive labor” but “a system of treating people like 

property” that could be bought and sold. See Paul 

Finkelman, Slavery in the United States: Persons or 

Property?, in The Legal Understanding of Slavery 105, 133 

(Jean Allain ed., 2012). Convicted prisoners assigned to a 

private prison have not been relegated to such a position of 

dehumanizing subordination. Private prisons do not own 

prisoners. Nor do they buy or sell prisoners; instead, the 

State of Arizona determines where prisoners are

incarcerated. 

IV. The Eighth Amendment does not prohibit 

incarceration in a private prison.

The Supreme Court has held that conditions of a 

prisoner’s confinement “are subject to scrutiny under the 

Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 

(1994) (quoting Helling v. McKinney, 509 U.S. 25, 31 

(1993)). “The Constitution ‘does not mandate comfortable

prisons,’” id. (quoting Rhodes v. Chapman, 452 U.S. 337, 

349 (1981)), and “conditions of confinement may be, and 

often are, restrictive and harsh,” Morgan v. Morgensen, 465 

F.3d 1041, 1045 (9th Cir. 2006). Still, the Eighth 

Amendment prohibits “the wanton and unnecessary 

infliction of pain.” Id. (quoting Rhodes, 452 U.S. at 347).

To run afoul of this prohibition, prison conditions must 

typically imperil prisoners’ physical health or safety. See 

id.; Farmer, 511 U.S. at 832. True, in Overton v. Bazzetta, 

539 U.S. 126 (2003), the Supreme Court did not explicitly 

foreclose the possibility that conditions causing severe 

emotional suffering—such as a permanent ban on 

visitation—might constitute an Eighth Amendment 

violation. Id. at 137. But Overton still grounded its analysis 

in a concern for prisoners’ physical well-being, determining 
18 NIELSEN V. THORNELL

that a years-long ban on visitation did not contravene the 

Eighth Amendment because it did not “deprive inmates of 

basic necessities,” “fail to protect their health or safety,” or 

“involve the infliction of pain or injury.” Id.

Here, the plaintiffs have not plausibly alleged that 

confinement in a private prison violates the Eighth 

Amendment. Their primary contention—that private 

prisons are unconstitutional because they commodify

prisoners—is supported only by the complaint’s allegation 

that incarceration in a private prison is “personally degrading 

and dehumanizing” and that it “violates each plaintiff’s 

human dignity.” But even if severe emotional suffering 

could constitute an Eighth Amendment violation, the

plaintiffs’ vague allegations of humiliation do not plausibly 

rise to this level. See id. Inchoate allegations of an 

intangible offense to dignity—at least as asserted here—

cannot support an Eighth Amendment claim.

The plaintiffs’ alternative argument—that inferior 

conditions in private prisons violate the Eighth 

Amendment—fares no better. Because the plaintiffs have 

not plausibly alleged that conditions in private prisons 

constitute “a dramatic departure from accepted standards for 

conditions of confinement,” id. (citing Sandin, 515 U.S. at

485); supra Part II.A, they cannot establish that incarceration 

in a private prison poses a serious threat to prisoners’ 

physical well-being. See Farmer, 511 U.S. at 834. 

Finally, the plaintiffs gesture at evidence of social 

opposition to prison privatization to save their Eighth 

Amendment argument. Courts have sometimes inquired

into “objective indicia of society’s standards” when a 

plaintiff challenges a sentence as categorically 

disproportionate for a certain crime or a type of offender. 
NIELSEN V. THORNELL 19

Graham v. Florida, 560 U.S. 48, 60–62 (2010) (quoting 

Roper v. Simmons, 543 U.S. 551, 563 (2005)). But that 

inquiry is inappropriate here. In a conditions-ofconfinement case like this one, evidence of social opposition 

to a form of incarceration cannot establish an Eighth 

Amendment violation absent plausible allegations that this 

type of incarceration seriously threatens prisoners’ wellbeing. See Farmer, 511 U.S. at 832–34. So even if the 

plaintiffs can establish growing resistance to the use of 

private prisons, this evidence cannot overcome their basic 

failure to plausibly allege that private prisons impose cruel

and unusual punishment. 

V. The Fourteenth Amendment’s Equal Protection 

and Due Process Clauses do not prohibit 

incarceration in a private prison.

If a challenged law neither burdens a fundamental right 

nor discriminates against a suspect class, it is consistent with 

the Fourteenth Amendment so long as it is supported by a 

rational basis. Pena v. Lindley, 898 F.3d 969, 986 (9th Cir. 

2018). 

A. The Constitution does not protect a 

fundamental right against incarceration in a 

private prison.

The Fourteenth Amendment’s Due Process Clause 

protects fundamental rights that are “deeply rooted in [our]

history and tradition” and “essential to our Nation’s ‘scheme 

of ordered liberty.’” Dobbs v. Jackson Women’s Health 

Org., 142 S. Ct. 2228, 2246 (2022) (quoting Timbs v. 

Indiana, 139 S. Ct. 682, 687 (2019)). When we evaluate 

whether an asserted fundamental right meets this high bar, 

we take care to ensure that the right is narrowly defined. See 
20 NIELSEN V. THORNELL

Washington v. Glucksberg, 521 U.S. 702, 721–23 (1997); 

Khachatryan v. Blinken, 4 F.4th 841, 856 (9th Cir. 2021).

The plaintiffs contend that prisoners have a right “to be 

free from commodification.” But at this level of generality, 

the right that they assert loses all substance. The abstraction 

inherent in the concept of “commodification” makes it 

impossible to identify limitations of this right. In view of 

our responsibility to “exercise the utmost care whenever we 

are asked to break new ground” in recognizing a new 

fundamental right, see Dobbs, 142 S. Ct. at 2247 (quoting 

Glucksberg, 521 U.S. at 720), we cannot accept the 

plaintiffs’ overbroad characterization. See Khachatryan, 4 

F.4th at 856.

Instead, the right that the plaintiffs seek to establish is 

more appropriately defined as a right against incarceration 

in a private prison. At this more modest framing, the 

plaintiffs’ argument must fail because they cannot establish 

that a right against confinement in a private prison is “deeply 

rooted” in this nation’s historical tradition. See Dobbs, 142 

S. Ct. at 2246 (quoting Timbs, 139 S. Ct. at 687). The 

Thirteenth Amendment cannot support a tradition against 

private prisons—its Punishment Clause makes clear that it 

does not extend to prisoners duly convicted of a crime. U.S. 

Const. amend. XIII, § 1. Nor does the plaintiffs’ analogy to 

the discredited practice of convict leasing support a 

historical tradition against the use of private prisons. 

Although the nation’s rejection of convict leasing may 

reflect a tradition against states making money from 

prisoners by leasing them out to work for private companies, 

this does not translate to a tradition against states 

outsourcing incarceration services by paying private 

companies to house prisoners.
NIELSEN V. THORNELL 21

At bottom, the plaintiffs present no evidence showing 

that our nation has a “deeply rooted” historical tradition 

against the use of private prisons—much less that 

prohibiting private prisons is “essential to our Nation’s 

‘scheme of ordered liberty.’” See Dobbs, 142 S. Ct. at 2246 

(quoting Timbs, 139 S. Ct. at 687).

B. Arizona’s private prison system does not 

discriminate against a suspect class.

The plaintiffs do not argue that prisoners incarcerated in 

a private prison constitute a suspect class protected by the 

Fourteenth Amendment’s Equal Protection Clause. Instead, 

they urge us to follow the Supreme Court’s approach in 

Plyler v. Doe, 457 U.S. 202 (1982), in which the Court 

applied a heightened form of scrutiny to a statute that 

prevented children of undocumented immigrants from 

receiving a free public education. Id. at 205, 223–24. 

The Court, however, has never extended Plyler outside 

of its context. Nor will we here. The consideration 

motivating the Plyler Court’s determination—the 

devastating “lifetime hardship” that the denial of public 

education would impose on innocent children “not 

accountable for their . . . status” as undocumented 

immigrants, id. at 223—is absent here. Arizona’s private

prison system only affects adults convicted of criminal 

conduct who are responsible for their status. And the 

plaintiffs have not plausibly alleged that incarceration in a 

private prison imposes any hardship beyond what ordinarily 

accompanies prison life—let alone a hardship like the 

lifelong “stigma of illiteracy” that denied the children in 

Plyler “the ability to live within the structure of our civic 

institutions” and “foreclose[d] any realistic possibility that 

they will contribute in even the smallest way to the progress 
22 NIELSEN V. THORNELL

of our Nation.” See id. Thus, the plaintiffs’ analogy to 

Plyler fails, and we review Arizona’s private prison system

only for rational basis. 

C. A rational basis supports Arizona’s private

prison system.

A law that neither burdens a fundamental right nor 

discriminates against a suspect class satisfies the Fourteenth 

Amendment if it has “a rational relation to some legitimate 

end.” Pena, 898 F.3d at 986 (quoting Romer v. Evans, 517 

U.S. 620, 631 (1996)). Under this standard, the challenged 

statute need not “actually advance its stated purposes,” so

long as “the government could have had a legitimate reason 

for acting as it did.” Wright v. Incline Vill. Gen. 

Improvement Dist., 665 F.3d 1128, 1141 (9th Cir. 2011) 

(quoting Currier v. Potter, 379 F.3d 716, 732 (9th Cir. 

2004)).

The legitimate state interest underlying Arizona’s 

private prison system is clear. By its own terms, it furthers 

the goal of efficiency. See Ariz. Rev. Stat. Ann. § 41-

1609.02(B) (requiring that a private prison “provide at least 

the same quality of services as this state at a lower cost 

or . . . services superior in quality . . . at essentially the same 

cost”). Arizona has a legitimate interest in increasing the 

efficiency of its operations, and privatization is a rational 

attempt to achieve this goal. See Edward Rubin, The 

Possibilities and Limitations of Privatization, 123 Harv. L. 

Rev. 890, 912 (2010) (book review). Thus, a rational basis 

supports Arizona’s private prison system whether or not it 

leads to cost savings. See Wright, 665 F.3d at 1141.
NIELSEN V. THORNELL 23

CONCLUSION

Each of the plaintiffs’ challenges to Arizona’s private

prison system fails—either for lack of a cognizable legal 

theory or because the plaintiffs have failed to plausibly 

allege facts to support them. See Woods v. U.S. Bank N.A., 

831 F.3d 1159, 1162 (9th Cir. 2016). We thus AFFIRM the 

district court’s dismissal of the plaintiffs’ claims.

NGUYEN, Circuit Judge, concurring in the judgment: 

I agree that plaintiffs’ constitutional challenge to 

Arizona’s private prison scheme falls short, and therefore we 

must affirm the district court’s dismissal of their claims.1 I 

write separately, however, to emphasize that our decision is 

limited only to the deficiencies in this particular case. We 

do not decide whether every use of private prisons 

1 While I agree with Judge Lee that the NAACP has standing, I disagree 

with his suggestion that organizational plaintiffs require extra scrutiny. 

See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982) (“In 

determining whether [an organization] has standing . . . , we conduct the 

same inquiry as in the case of an individual.”). An organizational 

plaintiff need not “show that it . . . repeatedly devoted significant 

resources and time on an issue substantially similar to the one raised in 

the lawsuit.” Lee Op. at 10. “For standing purposes, a loss of even a 

small amount of money is ordinarily an ‘injury.’” Isaacson v. Mayes, 84 

F.4th 1089, 1096 (9th Cir. 2023) (quoting Czyzewski v. Jevic Holding 

Corp., 580 U.S. 451, 464, (2017)). And, of course, monetary loss is not 

the only type of harm that will constitute an injury in fact. See Sanchez 

v. L.A. Dep’t of Transp., 39 F.4th 548, 554 (9th Cir. 2022) (“[I]ntangible 

harms can also be concrete.” (quoting TransUnion LLC v. Ramirez, 594 

U.S. 413, 425 (2021))). Nor is there anything inherently problematic 

about an organization having “sprawling or multipronged mission 

statements.” Lee Op. at 9. Many large organizations such as the NAACP 

advocate on—and thus have a stake in—a variety of issues.
24 NIELSEN V. THORNELL

necessarily passes constitutional muster. See, e.g., Upjohn 

Co. v. United States, 449 U.S. 383, 386 (1981) (“[W]e sit to 

decide concrete cases and not abstract propositions of law. 

We decline to lay down a broad rule or series of rules to 

govern all conceivable future questions in this area, even 

were we able to do so.”). Other inmates in private prisons 

may be able to allege viable constitutional claims, and we do 

not prejudge them.

Notwithstanding plaintiffs’ failure here to state a 

“structural bias” claim, a state’s private prison scheme in 

theory could lead to such a biased decisionmaking process 

that it denies inmates due process. Prison officials, like other 

administrative prosecutors, must be “accorded wide 

discretion” and “need not be entirely ‘neutral and 

detached.’” Cal. Pac. Bank v. FDIC, 885 F.3d 560, 572–73 

(9th Cir. 2018) (quoting Marshall v. Jerrico, Inc., 446 U.S. 

238, 248 (1980)). But we “should be chary of schemes that 

inject ‘a personal interest, financial or otherwise, into the 

enforcement process [and] may bring irrelevant or 

impermissible factors into the prosecutorial decision and in 

some contexts raise serious constitutional questions.’” Id. at 

573 (quoting Marshall, 446 U.S. at 249–50).

Here, as Judge Lee explains, Arizona incorporates 

certain statutory guardrails into its private prison scheme to 

ameliorate conflict of interest concerns. Although private 

prison contracts must provide the state “cost savings,” Ariz. 

Rev. Stat. Ann. § 41-1609.01(G), they must also provide “a 

level and quality of services” equaling or surpassing what 

the state would otherwise provide, id. § 41-1609.01(H). In 

addition, private prison contracts may not authorize prison 

operators to control inmate custody classifications or release 

dates—either directly or indirectly. See id. § 41-1609.01(M) 

(prohibiting contracts that allow private prison operators to 
NIELSEN V. THORNELL 25

“calculat[e] inmate release dates,” “calculat[e] and award[] 

sentence credits,” “[a]pprov[e] the type of work inmates may 

perform,” or “tak[e] any disciplinary actions”). And to 

better align incentives, prison contractors must self-insure 

against “civil rights claims and liabilities,” id. § 41-

1609.01(K)(2), and waive any defense based on sovereign 

immunity, id. § 41-1609.01(L).

Plaintiffs allege that despite these protections, inmates in 

Arizona’s private prisons “experience greater deprivations 

of liberty” due to “higher levels of incident reporting” than 

in state-run prisons. According to plaintiffs, private prisons 

have an incentive to over-report inmate misconduct because 

Arizona “pays a predetermined . . . rate to each prison 

corporation for each day each prisoner occupies a cell or bed 

in a private prison,” and an inmate “generates more revenue 

and profit to a private prison corporation the longer the 

prisoner remains in the private prison.”

Plaintiffs’ general allegations that private prisons result 

in greater deprivation of liberty raise serious due process 

concern. A financial incentive to prolong prisoners’ 

incarceration could pressure private prison staff to embellish 

or even fabricate charges of inmate misconduct so that 

inmates would lose good time credit. See Ariz. Rev. Stat. 

Ann. §§ 41-1604.06, .07 (Arizona’s good time credit 

scheme); cf. Young v. United States ex rel. Vuitton et Fils 

S.A., 481 U.S. 787, 807 (1987) (“[P]rosecution by an 

interested party may be influenced by improper motives. A 

prosecutor exercises considerable discretion in matters such 

as the determination of which persons should be targets of 

investigation, what methods of investigation should be used, 

what information will be sought as evidence, which persons 

should be charged with what offenses, which persons should 
26 NIELSEN V. THORNELL

be utilized as witnesses . . . , and whether any individuals 

should be granted immunity.”).

Plaintiffs’ theory, however, has several inferential gaps. 

To begin with, plaintiffs assert only that private prison staff 

report incidents of inmate misconduct at higher rates—not 

that they embellish or fabricate the incidents. Without more, 

private prison employees’ greater vigilance in reporting 

inmate misconduct does not in and of itself violate inmates’ 

due process rights. Plaintiffs also fail to explain why 

individual correctional officers—as distinguished from the 

corporations employing them—are incentivized to overcharge inmate misconduct.

Moreover, plaintiffs’ structural bias theory rests on the 

unstated assumption that the state-employed officials 

adjudicating charges of inmate misconduct are unwilling or 

unable to distinguish legitimately brought charges from false 

or exaggerated charges. Plaintiffs do not allege, for 

example, that inmate misconduct charges in Arizona’s 

private prisons are sustained at a rate comparable to that in 

public prisons.2 That might be true, but not necessarily. The 

state officials who adjudicate inmate misconduct charges 

lack a profit motive to sustain the charges; they may 

recognize and reject trumped up charges, thus serving as a 

2 Plaintiffs’ amended complaint includes evidence that federally 

contracted prison facilities “had . . . more guilty findings on serious 

inmate discipline charges” than the comparable Bureau of Prisons 

institutions, but plaintiffs do not explain why federally contracted 

prisons are comparable to Arizona’s contract prisons simply because the 

same entities operate them. It is not clear whether employees of private 

federal prisons had the authority to discipline inmates—there is no 

federal counterpart to Arizona’s statute prohibiting the outsourcing of 

prison discipline—and if they had such authority, it would explain the 

greater incidence of guilty findings.
NIELSEN V. THORNELL 27

bulwark against improperly motivated prison staff—as the 

Arizona scheme plainly contemplates.

Finally, while paying private prisons a flat fee per 

inmate-day might, without more, raise structural bias 

questions, plaintiffs allege additional nuances to the 

compensation scheme that may temper any improper 

incentives. Plaintiffs claim that Arizona “guarantees 

specific volumes of prisoners for placement in private 

prisons.” Crucially, however, plaintiffs do not claim that 

current occupancy rates meet or exceed the guaranteed 

minimums, which can be as high as 90–100%. If the 

occupancy rates aren’t that high,3 then private prisons may 

have disincentives to extend inmates’ time in custody, since 

doing so would increase costs but not necessarily revenues. 

For these reasons, I agree with Judge Lee that plaintiffs 

here fail to plausibly allege a structural bias claim.

I concur in the judgment.

COLLINS, Circuit Judge, dissenting: 

We lack jurisdiction to reach the merits of this case in its 

present posture, because there is no plaintiff before us who 

has both Article III standing and live claims. Accordingly, I 

would vacate the district court’s judgment and remand with 

instructions to consider whether to allow amendment of the 

3 The state asserts—and evidence attached to the amended complaint 

suggests—that the contractual minimums are not being met. Plaintiffs 

cite a study showing that Mississippi inmates in private prisons served a 

greater fraction of their sentences than those in state prisons, but the 

private prisons at issue had occupancy rates that exceeded the contractual 

minimums.
28 NIELSEN V. THORNELL

complaint to cure this jurisdictional deficiency. To the extent 

that the majority holds otherwise, I respectfully dissent. 

I

The constitutional “doctrine of standing” sets forth 

certain irreducible requirements that are needed to establish 

that a matter is among “the ‘Cases’ and ‘Controversies’ that 

are of the justiciable sort referred to in Article III.” Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560 (1992). “[T]o 

satisfy Article III’s standing requirements, a plaintiff must 

show (1) it has suffered an ‘injury in fact’ that is (a) concrete 

and particularized and (b) actual or imminent, not 

conjectural or hypothetical; (2) the injury is fairly traceable 

to the challenged action of the defendant; and (3) it is likely, 

as opposed to merely speculative, that the injury will be 

redressed by a favorable decision.” Friends of the Earth, 

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–

81 (2000). In the case of an organizational plaintiff, the 

organization may attempt to make this three-part showing as 

to itself and its own operations, or it may seek to represent 

others as to whom it can make that showing. See Hunt v. 

Washington State Apple Advert. Comm’n, 432 U.S. 333, 

341–43 (1977). 

The necessary elements of Article III standing “must be 

supported in the same way as any other matter on which the 

plaintiff bears the burden of proof, i.e., with the manner and 

degree of evidence required at the successive stages of the 

litigation.” Lujan, 504 U.S. at 561. At the pleading stage, 

that requires an organizational plaintiff to plead sufficient 

facts to establish standing in accordance with the “pleading 

standards of Ashcroft v. Iqbal, 556 U.S. 662, 678–79 

(2009).” Jones v. L.A. Cent. Plaza LLC, 74 F.4th 1053, 1056 

(9th Cir. 2023); see also id. at 1056 n.1. 
NIELSEN V. THORNELL 29

The majority holds that Plaintiff Arizona State 

Conference of the National Association for the Advancement 

of Colored People (“AZ NAACP”) has alleged sufficient 

facts to establish its own direct Article III standing to bring 

this facial challenge to the constitutionality of the Arizona 

statutes that authorize private, for-profit companies to 

operate prison facilities within the State.1 See ARIZ. REV.

STAT. § 41-1609, et seq. I disagree. In my view, the 

allegations of the operative complaint fail to establish that 

AZ NAACP has either direct organizational standing on its 

own behalf or representational standing on behalf of others.

A

We have held that, under Havens Realty Corp. v. 

Coleman, 455 U.S. 363 (1982), “[a]n organization has direct 

standing to sue where it establishes that the defendant’s 

behavior [1] has frustrated its mission and [2] caused it to 

divert resources in response to that frustration of purpose.” 

Fellowship of Christian Athletes v. San Jose Unified Sch. 

Dist., 82 F.4th 664, 682 (9th Cir. 2023) (en banc) (citation 

omitted). But as Havens Realty itself makes clear, the 

required frustration of the organization’s “mission” by the 

defendant does not refer merely to a “setback to the 

organization’s abstract social interests”; that is insufficient to 

establish standing. Havens Realty, 455 U.S. at 379; see also 

Johnson v. Weinberger, 851 F.2d 233, 235 (9th Cir. 1988) 

(“A mere interest in a problem, no matter how longstanding 

1 Although Judge Nguyen disagrees with Judge Lee to the extent that he 

“suggest[s] that organizational plaintiffs require extra scrutiny,” see

Concur. at 23 n.1, she expresses no disagreement with Judge Lee’s 

analysis as to why, even under his stricter standards, AZ NAACP has 

succeeded in alleging direct organizational standing here. Accordingly, 

I construe Judge Lee’s reasons for upholding AZ NAACP’s standing 

allegations as reflecting the views of a majority of the panel.
30 NIELSEN V. THORNELL

the interest and how qualified the plaintiff is in evaluating 

the problem, is not sufficient by itself to confer standing.” 

(simplified)). Rather, the mission-frustration requirement 

entails a showing that the defendant’s conduct affirmatively 

interfered with a particular set of activities in which the 

organization was engaged apart from, and prior to, the 

defendant’s conduct. See Fellowship, 82 F.4th at 683 (noting 

that the national Fellowship organization was engaged in 

various activities to support its local chapters on school 

campuses, which carry out the national organization’s work 

and goals); Fair Hous. of Marin v. Combs, 285 F.3d 899, 902 

(9th Cir. 2002) (noting that the organizational plaintiff 

engaged in, inter alia, “investigat[ing] allegations of 

discrimination” and taking “steps” to “counteract and 

eliminate” any practices it uncovered); see also Havens 

Realty, 455 U.S. at 379 (noting that, prior to the defendant’s 

conduct, the plaintiff organization was engaged in providing 

“counseling and referral services for low- and moderateincome homeseekers,” and that the defendant’s actions 

“perceptibly impaired” the organization’s ability to provide 

those services). 

We have made the same point, in somewhat different 

words, by stating that the required frustration of the 

organization’s mission can be satisfied by a showing that the 

organization “‘would have suffered some other injury’ had 

[it] ‘not diverted resources to counteracting the problem.’” 

Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 879 

(9th Cir. 2022) (emphasis added) (citation omitted). 

Although our opinions have sometimes applied Havens 

Realty in summary fashion, those decisions cannot properly 

be construed as eliminating, or failing to apply, this crucial 

requirement. See, e.g., Sabra, 44 F.4th at 880 (affirming this 

requirement in a brief discussion that did not explicitly and 
NIELSEN V. THORNELL 31

specifically explain how it was met); Fair Hous. Council of 

San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 

1219 (9th Cir. 2012) (similar). If this requirement did not 

exist, and the mere expenditure of resources in response to 

the defendant’s conduct were alone enough, that would 

contravene our reaffirmation, in our recent en banc decision 

in Fellowship, that “an organization may not manufacture an 

injury by choosing to spend money fixing a problem that 

otherwise would not affect the organization at all.” 82 F.3d 

at 682 (citations and internal quotation marks omitted).

Examined under these standards, AZ NAACP’s 

allegations of standing fall short. Most of the activities that 

AZ NAACP identifies in the complaint consist of pure 

advocacy in opposition to prison privatization—“lobbying” 

legislatures, appearing in “administrative proceedings” in 

opposition to private prisons, and “proposing and 

implementing” a “resolution to abolish private prisons.” But 

mere advocacy against a policy, and spending resources on 

such advocacy, is not enough under Havens Realty and its 

progeny. If it were, any person who is opposed to any 

government policy would have standing to challenge that 

policy merely because the person has opposed such policies 

in the past and plans to spend money in the future against 

them. That would allow parties both to “‘manufacture’ an 

injury,” Fellowship, 82 F.4th at 683, and to predicate Article 

III jurisdiction on the vindication of their “abstract social 

interests,” Havens Realty, 432 U.S. at 379.

To show that it was engaged in activities apart from the 

defendants’ conduct that were harmed by that conduct (or 

that would be harmed by it absent a shifting of resources), 

AZ NAACP was required to plead facts establishing an 

injury beyond advocacy in response to Arizona’s actions. 

Thus, AZ NAACP had to show that, by instituting a system 
32 NIELSEN V. THORNELL

of private, for-profit prisons, Arizona has inflicted “concrete 

and demonstrable injury” to the organization’s alreadyexisting activities. Havens Realty, 455 U.S. at 379. The 

complaint wholly fails to make any such showing. It instead 

states only that AZ NAACP “advocat[es] for persons in 

private-for-profit prisons.” But that is merely an allegation 

of the self-inflicted injury of choosing, in response to 

Arizona’s challenged conduct, to spend resources opposing 

it, and such purely voluntary, responsive activities are 

insufficient to establish standing. See Clapper v. Amnesty 

Int’l USA, 568 U.S. 398, 416 (2013) (holding that, in the 

absence of some independent existing or impending harm, 

plaintiffs “cannot manufacture standing merely by inflicting 

harm on themselves”). Rather, AZ NAACP had to show 

that, had it not undertaken to oppose Arizona’s privateprison policies, it “would have suffered some other injury.” 

Sabra, 44 F.4th at 879 (citation omitted). Nothing in the 

complaint here even attempted to make such a showing.

In concluding that AZ NAACP’s standing allegations 

satisfy Iqbal’s pleading requirements, the majority relies on 

the premise that the allegations here are, in the relevant 

respects, “virtually identical” to the ones that we found 

sufficient in Sabra. See Opin. at 9 n.2. That is wrong. 

In Sabra, a public community college offered a course 

that taught that “Islam as a religion . . . not only supports 

terrorism but requires it,” and students who declined to 

endorse that view on a quiz were penalized for their 

“incorrect” answers. Sabra, 44 F.4th at 898, 902 (Bress, J., 

dissenting) (describing the facts in substantial detail). The 

college’s course was then widely publicized, thereby 

creating a public perception that a public college promoted, 

and penalized opposition to, the view that Islam requires and 

endorses terrorism. Id. at 876. To “remedy the damage 
NIELSEN V. THORNELL 33

done,” the Council on American-Islamic Relations of 

Arizona (“CAIR”), a “non-profit organization that advocates 

for the civil rights of American Muslims,” “contracted with 

a religious scholar to develop materials for a publicawareness campaign,” thereby “diverting resources from the 

organization’s usual advocacy activities.” Id. at 873, 877. 

Although, as the majority notes, Sabra contains no 

detailed analysis as to how CAIR satisfied the requirement 

to “show[] that [it] ‘would have suffered some other injury’” 

had [it] “not diverted resources to counteracting the 

problem,” 44 F.4th at 879 (emphasis added) (citation 

omitted), we squarely held that there was “damage done” to 

CAIR by the college before CAIR expended resources to 

“remedy” that damage, id. at 877. Although we did not detail 

exactly what the damage was, it seems clear that we relied

on the view that a public college’s promotion and 

enforcement of the view that Islam requires terrorism 

“perceptibly impaired” CAIR’s established and pre-existing 

educational efforts aimed at promoting a positive and nonviolent public perception of Islam. See Appellants’ Opening 

Brief in Sabra, 2021 WL 238698, at *29–31 (describing 

CAIR’s allegations concerning such pre-existing activities). 

Here, by contrast, there are no allegations of damage done 

by Arizona’s private-prison program to pre-existing 

activities of AZ NAACP. Instead, AZ NAACP has pleaded 

that it has opposed adoption of private-prison policies in the 

past and then chose to expend resources when Arizona 

adopted such a policy. Article III requires more than that.

B

I also conclude that AZ NAACP has failed to establish 

representational standing under Hunt. 
34 NIELSEN V. THORNELL

“[A]n association has standing to bring suit on behalf of 

its members when: (a) its members would otherwise have 

standing to sue in their own right; (b) the interests it seeks to 

protect are germane to the organization’s purpose; and 

(c) neither the claim asserted nor the relief requested 

requires the participation of individual members in the 

lawsuit.” Hunt, 432 U.S. at 343. Although AZ NAACP 

invoked this representational standing doctrine in the 

complaint, there are no supporting factual allegations 

sufficient to raise a “plausible inference” that these 

requirements have been met. See Iqbal, 556 U.S. at 682. In 

particular, the complaint wholly fails to plead facts 

establishing that any of AZ NAACP’s members would have 

standing to challenge prison privatization in Arizona in their 

own right. The complaint merely alleges, in conclusory 

terms, that some of its members “have been or will be 

directly harmed by prison privatization” and that it is “highly 

likely that some of its members or their family members will 

be incarcerated in private prisons.” That is not enough to 

satisfy Iqbal’s pleading requirements. 

Accordingly, I conclude that, in the operative complaint, 

AZ NAACP has failed to allege sufficient facts to establish 

its standing.

II

The operative complaint in this case named two 

additional Plaintiffs, Jeffrey Nielsen and Brian Boudreau, 

who at that time were incarcerated in privately managed 

prisons in Arizona. Nielsen and Boudreau sought to 

represent a putative class consisting of “[a]ll prisoners of the 

Arizona Department of Corrections, Rehabilitation & 

Reentry who are or may be placed by the Department in a 

private prison for incarceration.” However, no class was 
NIELSEN V. THORNELL 35

ever certified before the district court dismissed this case, 

and both Nielsen and Boudreau have now been released 

from custody. In view of those facts, their claims are moot, 

even if one assumes arguendo that they had Article III 

standing at the time of the district court proceedings. That 

is, because the complaint seeks only prospective injunctive 

and declaratory relief, Nielsen’s and Boudreau’s release 

from custody renders their individual claims moot. See 

Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (“An 

inmate’s release from prison while his claims are pending 

generally will moot any claims for injunctive relief relating 

to the prison’s policies unless the suit has been certified as a 

class action.”).

Nielsen and Boudreau contend that, even though no class 

was certified, their claims fall within a mootness exception 

for claims that are “so inherently transitory that the trial court 

will not have even enough time to rule on a motion for class 

certification before the proposed representative’s individual 

interest expires.” Pitts v. Terrible Herbst, Inc., 653 F.3d 

1081, 1090 (9th Cir. 2011). This contention fails.

The Supreme Court has “held that a class action is not 

rendered moot when the named plaintiff’s individual claim 

becomes moot after the class has been duly certified.” 

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 74 

(2013) (emphasis in original) (citing Sosna v. Iowa, 419 U.S. 

393, 399 (1975)). Accordingly, to invoke Sosna’s classaction-based mootness exception, a plaintiff ordinarily must 

satisfy “Sosna’s requirement that a named plaintiff with a 

live claim exist at the time of class certification.” United 

States v. Sanchez-Gomez, 584 U.S. 381, 388 (2018) 

(emphasis added). However, there is a “limited exception” 

to this requirement, which “applies when the pace of 

litigation and the inherently transitory nature of the claims at 
36 NIELSEN V. THORNELL

issue conspire to make that requirement difficult to fulfill.” 

Id. This exception was first suggested in dicta in Sosna, 

where the Court acknowledged that “[t]here may be cases in 

which the controversy involving the named plaintiffs is such 

that it becomes moot as to them before the district court can 

reasonably be expected to rule on a certification motion.” 

419 U.S. at 402 n.11. In such cases, the Court stated, a 

certification order might be deemed to “‘relate back’ to the 

filing of the complaint” so as to prevent mootness. Id.

Sosna’s dicta became law one month later in Gerstein v. 

Pugh, 420 U.S. 103 (1975). Gerstein addressed “whether a 

person arrested and held for trial under a prosecutor’s 

information is constitutionally entitled to a judicial 

determination of probable cause for pretrial restraint of 

liberty.” Gerstein, 420 U.S. at 105. The named plaintiffs 

“were members of a class of persons detained without a 

judicial probable cause determination, but the record [did] 

not indicate whether any of them were still in custody

awaiting trial when the District Court certified the class.” Id. 

at 110 n.11. The Court observed that “[s]uch a showing 

ordinarily would be required to avoid mootness under 

Sosna,” but it determined that the case was of the sort Sosna 

had indicated in dicta would warrant “relation back” of the 

certification order. Id. The Court explained:

The length of pretrial custody cannot be 

ascertained at the outset, and it may be ended 

at any time by release on recognizance, 

dismissal of the charges, or a guilty plea, as 

well as by acquittal or conviction after trial. 

It is by no means certain that any given 

individual, named as plaintiff, would be in 
NIELSEN V. THORNELL 37

pretrial custody long enough for a district 

judge to certify the class.”

Id.; see also Genesis, 569 U.S. at 71 n.2 (“The ‘relation back’ 

doctrine [of Gerstein] was developed in the context of class 

actions under Rule 23 to address the circumstance in which 

a named plaintiff’s claim becomes moot prior to the 

certification of the class.”). In Sanchez-Gomez, the Court 

reaffirmed that the Gerstein exception rested on the 

distinctive “circumstance[]” that, in Gerstein, the Court 

“could not determine ‘that any given individual, named as 

plaintiff, would be in pretrial custody long enough for a 

district judge to certify the class.’” 584 U.S. at 386 (quoting 

Gerstein, 420 U.S. at 110 n.11).

Here, Nielsen and Boudreau do not fit within the 

Gerstein exception to Sosna’s requirements because there is 

nothing in the record to suggest that the type of claims at 

issue here are ones that are so short-lived that there is 

insufficient time to seek and obtain certification of the class 

in the district court. Here, the plaintiffs simply chose not to 

seek certification of the class before the motion to dismiss 

was resolved, but they certainly could have done so. See, 

e.g., Patel v. Facebook, Inc., 932 F.3d 1264, 1269 (9th Cir. 

2019) (noting that, “[w]hile Facebook’s motion to dismiss 

was pending, the plaintiffs moved to certify a class” and that 

the district court denied the motion to dismiss and certified 

the class); Hawkins v. Comparet-Cassani, 251 F.3d 1230, 

1235 (9th Cir. 2001) (noting that the district court denied 

defendants’ motion to dismiss, and certified a class, in the 

same order). This is not a case such as Belgau v. Inslee, 975 

F.3d 940 (9th Cir. 2020), in which we found Gerstein’s 

exception to be satisfied where the challenged collection of 

union dues expired, by its terms, in April 2019, id. at 946, 
38 NIELSEN V. THORNELL

which was right around the time that the class certification 

motion was due under the district court’s scheduling order. 

See Belgau v. Inslee, No. 18-cv-5620, Dkt. 42 (W.D. Wash. 

Nov. 15, 2018). In such circumstances, “full litigation” of 

the class certification issue in the district court is inherently 

impossible due to the very short “duration of the challenged 

action.” Belgau, 975 F.3d at 949. Nothing comparable is 

alleged here, because Boudreau and Nielsen were released, 

respectively, in May 2022 and August 2022, nearly two years 

after this case was filed and well after this case was already 

on appeal. 

Because this is not a situation in which the claims are so 

inherently transitory that they would not survive “long 

enough for a district judge to certify the class,” SanchezGomez, 584 U.S. at 386 (citation omitted), the Gerstein

exception to Sosna’s requirements does not apply. 

Therefore, under Sosna, the claims of Nielsen and Boudreau 

would be saved from mootness only if the class was actually 

certified while they were still incarcerated in a private 

prison. Id. at 388. Because that requirement is not met here, 

their claims are moot.

III

Because the NAACP has not sufficiently established its 

standing, and because the claims of the putative class 

representatives are moot, we lack jurisdiction to reach the 

merits. I would therefore vacate the district court’s judgment 

without addressing the merits and would remand the matter. 

However, I would not remand for immediate dismissal for 

lack of jurisdiction, because I think that AZ NAACP should 

be given an opportunity to amend its complaint to add 

additional allegations of standing. That is particularly 

appropriate here because, until our recent decision in Jones 
NIELSEN V. THORNELL 39

v. L.A. Central Plaza, 74 F.4th at 1056 n.1, there was some 

confusion in this circuit as to whether Iqbal’s pleading 

standards applied to jurisdictional issues such as Article III 

standing. See id. (holding that Ninth Circuit precedent 

suggesting that Iqbal did not apply to jurisdictional issues 

has been abrogated by subsequent Supreme Court 

precedent). Now that we have clarified that Iqbal does apply 

to the pleading of jurisdictional facts, AZ NAACP should be 

given an opportunity to amend its complaint in a way that 

might satisfy Iqbal’s standards.2 

To the extent that the majority instead reaches the merits 

of the claims, I respectfully dissent.

2 I express no view as to whether, on such a remand, additional individual 

plaintiffs with live claims could choose to join as co-plaintiffs in any 

such amended complaint of AZ NAACP. Cf. Kuahulu v. Employers Ins. 

of Wausau, 557 F.2d 1334, 1337 (9th Cir. 1977) (holding, in a case with 

only a single individual plaintiff and no organizational co-plaintiff, that, 

“where the class was not certified before appellant’s claim became 

moot,” the court was “require[d] . . . to dismiss the entire appeal as 

moot,” without remanding for substitution of a new class representative).