FOR PUBLICATION

   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           OPINION
behalf of its members,

              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

    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 profit-
motivated mission makes them less safe and secure than
state-run prisons. While there may be compelling policy
reasons against—or for—private prisons, there can be little
debate that private prisons pass constitutional muster.
    Inmates do not have a protected liberty interest in
avoiding private prisons because such prisons do not impose
an “atypical or significant hardship” beyond ordinary prison
conditions. Nor do the plaintiffs have a valid Thirteenth
Amendment claim based on involuntary servitude because
the Amendment expressly carves out an exception for
“punishment for crime.” And their cruel and unusual
punishment claim fails, too, because the Eighth Amendment
does not cover the type of intrusions into prisoners’
“dignity” as alleged in this case. Finally, inmates do not
have a fundamental right to be free from alleged
commodification in private prisons.
    In sum, the Constitution does not prohibit states from
turning to private companies to help run their correctional
systems. The plaintiffs’ arguments are better directed to
Arizona’s representatives and the citizens who elect them—
not the courts. We affirm the district court’s dismissal of the
lawsuit.
                      NIELSEN V. THORNELL                      7


                      BACKGROUND
    Arizona law allows the state to contract with private
companies to operate prisons. 

-
1609(B). By law, these contracts must provide “cost
savings” to Arizona’s taxpayers. 

 § 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, 

 (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, 

 (2007). Instead, it must “nudge[]” the plaintiff’s claims
“across the line from conceivable to plausible,” 

,
meaning that it must allege facts that present “more than a
sheer possibility that a defendant has acted unlawfully,”
Ashcroft v. Iqbal, 

 (2009). If an innocent
explanation for the allegations is more likely, the complaint
does not plausibly state a claim for relief. See 

.
And of course, we discount conclusory allegations in a
complaint because they are “not entitled to the assumption
of truth.” 

.
                            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, 

, 378–79 (1982) (quoting Village of Arlington Heights v.
Metro. Hous. Dev. Corp., 

 (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, 

 (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, 

.
    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, 

, 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.,

 (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,

. 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.” 

 (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, 

 (9th Cir.
2021) (quoting Lujan v. Defs. of Wildlife, 

(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, 

.
    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., 

, 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, 

, 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, 

 (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, 

 (2005) (quoting Sandin v. Conner, 

 (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, 

, 1197–98 (9th
                       NIELSEN V. THORNELL                         13


Cir. 2022); Brown v. Or. Dep’t of Corr., 

(9th Cir. 2014); Wilkinson, 

, 223–24.
Placements that pose an automatic bar to early release may
also pose atypical and significant hardship, see Wilkinson,

, 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, 

.
    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, 

; Sandin, 

. 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, 

 (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, 

 (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, 

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

, 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, 

.
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. 

(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, 

.
 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, 

 (9th
Cir. 2010); see also United States v. Kozminski, 

 (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, 

(1994) (quoting Helling v. McKinney, 

(1993)). “The Constitution ‘does not mandate comfortable
prisons,’” 

 (quoting Rhodes v. Chapman, 

 (1981)), and “conditions of confinement may be, and
often are, restrictive and harsh,” Morgan v. Morgensen, 

 (9th Cir. 2006). Still, the Eighth
Amendment prohibits “the wanton and unnecessary
infliction of pain.” 

 (quoting Rhodes, 

).
     To run afoul of this prohibition, prison conditions must
typically imperil prisoners’ physical health or safety. See
id.; Farmer, 

. True, in Overton v. Bazzetta,

 (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. 

. 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.” 

    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 

 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,” 

 (citing Sandin, 

); supra Part II.A, they cannot establish that incarceration
in a private prison poses a serious threat to prisoners’
physical well-being. See Farmer, 

.
    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, 

, 60–62 (2010) (quoting
Roper v. Simmons, 

 (2005)). But that
inquiry is inappropriate here.          In a conditions-of-
confinement 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’ well-
being. 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, 

 (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., 

 (2022) (quoting Timbs v.
Indiana, 

 (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, 

, 721–23 (1997);
Khachatryan v. Blinken, 

, 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, 

 (quoting
Glucksberg, 

), 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, 

 (quoting Timbs, 

). 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, 

(quoting Timbs, 

).
     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, 

 (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. 

, 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, 

 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 

 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, 

 (quoting Romer v. Evans, 

 (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., 

 (9th Cir. 2011)
(quoting Currier v. Potter, 

 (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 

-
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, 

, 912 (2010) (book review). Thus, a rational basis
supports Arizona’s private prison system whether or not it
leads to cost savings. See Wright, 

.
                         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.,

 (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, 

 (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, 

, 1096 (9th Cir. 2023) (quoting Czyzewski v. Jevic Holding
Corp., 

, (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., 

 (9th Cir. 2022) (“[I]ntangible
harms can also be concrete.” (quoting TransUnion LLC v. Ramirez, 

 (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, 

 (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, 

, 572–73
(9th Cir. 2018) (quoting Marshall v. Jerrico, Inc., 

 (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.’” 

 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,” 

(G), they must also provide “a
level and quality of services” equaling or surpassing what
the state would otherwise provide, 

 § 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 

, .07 (Arizona’s good time credit
scheme); cf. Young v. United States ex rel. Vuitton et Fils
S.A., 

 (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 over-
charge 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, 

 (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., 

, 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, 

,
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, 

. 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, 

, 678–79
(2009).” Jones v. L.A. Cent. Plaza LLC, 

(9th Cir. 2023); see also 

 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, 

 (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., 

 (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, 

; see also
Johnson v. Weinberger, 

 (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, 

 (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, 

(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, 

 (noting that, prior to the defendant’s
conduct, the plaintiff organization was engaged in providing
“counseling and referral services for low- and moderate-
income 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., 

(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, 

 (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, 

 (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, 

, and to predicate Article
III jurisdiction on the vindication of their “abstract social
interests,” Havens Realty, 

.
    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 already-
existing activities. Havens Realty, 

. 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, 

 (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 private-
prison policies, it “would have suffered some other injury.”
Sabra, 

 (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, 

 (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. 

. 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 public-
awareness campaign,” thereby “diverting resources from the
organization’s usual advocacy activities.” 

.
    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,” 

 (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, 

. 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 non-
violent public perception of Islam. See Appellants’ Opening
Brief in Sabra, 

, 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, 

. 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, 

. 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, 

 (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., 

 (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, 

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

 (1975)). Accordingly, to invoke Sosna’s class-
action-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, 

 (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.”

 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.”

 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. 

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

 (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, 

. 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.” 

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. 

 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, 

 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.’” 

 (quoting
Gerstein, 

 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., 

 (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, 

 (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, 

 (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, 

,
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, 

. 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,” Sanchez-
Gomez, 

 (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. 

. 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, 

 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 

 (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, 

 (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).