UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JEFFREY NIELSEN; BRIAN No. 22-15302 BOUDREAU, on behalf of themselves and all others similarly situated; D.C. No. ARIZONA STATE CONFERENCE 2:20-cv-01182- OF THE NATIONAL DLR-JZB ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, as an organization and on ORDER AND behalf of its members, AMENDED OPINION Plaintiffs-Appellants,

v. RYAN THORNELL, Director, Arizona Department of Corrections, Rehabilitation & Reentry, in his official capacity,

Defendant-Appellee.

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 Amended July 8, 2024

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

Order; Opinion by Judge Lee; Concurrence by Judge Nguyen; Dissent by Judge Collins

SUMMARY *

Prisoner Civil Rights

The panel filed (1) an order denying a petition for panel rehearing and rehearing en banc and amending Judge Collins’s dissent, and (2) an opinion affirming 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

* 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

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 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 4 NIELSEN V. THORNELL

this nation’