author: EBINGER, District Judge.

text:
    Steven KULKAY, Plaintiff-Appellant, v. Tom ROY, Commissioner of the Minnesota Department of Corrections; the Minnesota Department of Corrections; the State of Minnesota; Jeremy Schwartz, in his official and individual capacities; Alice Remillard, in her official and individual capacities; John Doe, in his official and individual capacities; Richard Doe, in his official and individual capacities, Defendants-Appellees.
    No. 16-1801
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 17, 2016
    Filed: February 2, 2017

      Counsel who presented argument on behalf of the appellant was Michael Kemp, of Saint Paul, MN. The following attorney(s) appeared on the appellant brief; John Mark Catron, of Saint Paul, MN., Nathaniel Arthur Dahl, of Saint Paul, MN.
    Counsel who presented argument on behalf of the appellee was Eric Brown, AAG, of Saint Paul, MN.
    Before BENTON and SHEPHERD, Circuit Judges, and EBINGER, District Judge.

      . The Honorable Rebecca Goodgame Ebinger, United States District Judge for the Southern District of Iowa, sitting by designation.

   EBINGER, District Judge.

Former inmate Steven Kulkay injured himself while using industrial equipment in the workshop of a Minnesota correctional facility. Kulkay sued the Minnesota Department of Corrections and related parties alleging violations of his civil rights under, the Eighth and Fourteenth Amendments, as well as negligence of prison employees. The district court dismissed all of Kulkay’s claims. On appeal, Kulkay argues the district court erred in dismissing his Eighth Amendment claims against the individual defendants. We affirm.

I.

We accept as true the material allegations in the complaint and present the facts in the light most favorable to Kulkay. See Hager v. Ark. Dep’t of Health, 735 F.3d 1009,1013 (8th Cir. 2013).

In 2013, Kulkay was incarcerated at the Faribault, Minnesota, correctional facility. Officials assigned him to work in the prison’s industrial workshop. After one- and-a-half months in the workshop, Kulkay was directed to operate the beam saw. The beam saw is a large, stationary machine that uses computers to automatically move and cut wood beams. After a worker loads a beam onto the saw’s work table, sensors detect the beam’s size and location. The machine moves the beam into position and circular blades extend to make the desired cuts. The operator is not required to manually start or stop the blade. The beam saw in the Faribault workshop was designed to utilize plastic safety guards to protect the operator from the blades. Kul-kay alleges Faribault officials never installed the safety guards while he was an inmate and the parts sat unused in the workshop.

By August 2013, Kulkay had worked in the workshop for two-and-a-half months and with the beam saw for one month. He received instruction on how to operate the saw from an inmate with experience on the saw; he did not receive any formal safety training from officials. Kulkay had never used or seen a beam saw before his assignment to the workshop. On August 5, 2013, Kulkay severed three of his fingers and part of a fourth while operating the saw. Doctors were unable to reattach the severed fingers.

Kulkay brought a 42 U.S.C. § 1983 suit against several institutional and individual defendants for violating his civil rights under the Eighth and Fourteenth Amendments. The defendants include the State of Minnesota; the Minnesota Department of Corrections; Tom Roy, the commissioner of the Department of Corrections; Alice Remillard, the safety director at the Fari-bault facility; Jeremy Schwartz, the supervising safety officer in charge of the facility’s workshop; and two unknown prison employees. Kulkay also brought negligence claims against the State of Minnesota and its Department of Corrections based on vicarious liability.

The defendants jointly filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). . The magistrate judge issued a Report and Recommendation (R&R) concluding the defendants’ motion should be granted. The R&R determined a number of Kul-kay’s claims were barred by Eleventh Amendment immunity, his Fourteenth Amendment claims could be brought only under the Eighth Amendment, and his Eighth Amendment claims failed because the individual defendants were entitled to qualified immunity. Kulkay objected only to the recommendation that his Eighth Amendment claims against the individual defendants be dismissed. The district court adopted the R&R in its entirety and held Kulkay’s complaint failed to state a claim under the Eighth Amendment on the basis of qualified immunity. Kulkay appeals.

II.

This court reviews a Rule 12(b)(6) dismissal based on qualified immunity de novo. Hager, 735 F.3d at 1013. We accept the factual allegations in the complaint as true and construe them in favor of the plaintiff. Id. We do not, however, “presume the truth of legal conclusions couched as factual allegations.” Id.; accord Wiles v. Capitol Indem. Corp., 280 F.3d 868, 870 (8th Cir. 2002) (“[T]he court is free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations.”).

To survive a motion to dismiss for failure to state a claim, “the complaint must include sufficient factual allegations to provide the grounds on which the claim rests.” Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The stated claim for relief must be “plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although a plaintiff need not allege facts in painstaking detail, the facts alleged “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678,129 S.Ct. 1937.

On appeal, Kulkay argues the district court erred when it dismissed his Eighth Amendment claims on the basis of qualified immunity. The doctrine of qualified immunity generally shields public and government officials performing discretionary functions from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “[DJefendants seeking dismissal under Rule 12(b)(6) based on an assertion of qualified immunity ‘must show that they are entitled to qualified immunity on the face of the complaint.’ ” Carter v. Huterson, 831 F.3d 1104, 1107 (8th Cir. 2016) (quoting Bradford v. Huckabee, 394 F.3d 1012,1015 (8th Cir. 2005)).

To determine whether a public official is entitled to immunity, courts conduct a two-pronged analysis: “whether the plaintiff has stated a plausible claim for violation of a constitutional or statutory right and whether the right was clearly established at the time of the alleged infraction.” Hager, 735 F.3d at 1013. Courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Because an official is entitled to qualified immunity unless both prongs are satisfied, our analysis will end if either of the two is not met. See id. We first consider whether Kulkay has stated a plausible claim for a constitutional violation.

III.

Kulkay’s § 1983 claim alleges the defendants violated the Eighth Amendment’s ban on “cruel and unusual punishment.” Eighth Amendment protection extends to conditions of incarceration and confinement, including prison work assignments. Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Ambrose v. Young, 474 F.3d 1070, 1075 (8th Cir. 2007). An inmate must make two showings — one objective and one subjective — to successfully state an Eighth Amendment claim. Ambrose, 474 F.3d at 1075.

First, the inmate must show the alleged violation is “objectively [and] sufficiently serious.” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (citation and quotation marks omitted). An alleged violation is “objectively [and] sufficiently serious” when the inmate “is incarcerated under conditions posing a substantial risk of serious harm.” Id. (citation and quotation marks omitted); accord Nelson v. Shuffman, 603 F.3d 439, 446 (8th Cir. 2010). We have found this first requirement satisfied in various contexts. See, e.g., Nelson, 603 F.3d at 447 (holding an inmate faced a substantial risk of serious harm when officials assigned him to share a room with an inmate known to have sexually assaulted other inmates); Irving v. Dormire, 519 F.3d 441, 445, 448-49 (8th Cir. 2008) (finding a sufficient risk of harm when a correctional officer made verbal death threats to an inmate); Simmons v. Cook, 154 F.3d 805, 807-08 (8th Cir. 1998) (finding a sufficient risk of harm when officials placed two paraplegic inmates in solitary confinement for thirty-two hours without access to food and medical care).

Second, the inmate must show the defendant official acted with a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson v. Setter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). This subjective inquiry is “analyzed in light of the specific claim raised.” Irving, 519 F.3d at 446. In a case challenging the conditions of confinement, the requisite state of mind is “ ‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson, 501 U.S. at 302-03, 111 S.Ct. 2321). “An official is deliberately indifferent if he or she actually knows of the substantial risk and fails to respond reasonably to it.” Young v. Selk, 508 F.3d 868, 873 (8th Cir. 2007). This requirement “follows from the principle that ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’” Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson, 501 U.S. at 297, 111 S.Ct. 2321).

This court has repeatedly held mere negligence or inadvertence does not rise to the level of deliberate indifference. See, e.g., Schaub v. VonWald, 638 F.3d 905, 914-15 (8th Cir. 2011) (“Deliberate indifference is equivalent to criminal-law recklessness, which is ‘more blameworthy than negligence,’ yet less blameworthy than purposefully causing or knowingly bringing about a substantial risk of serious harm to the inmate.” (quoting Farmer, 511 U.S. at 835, 114 S.Ct. 1970)); Stephens v. Johnson, 83 F.3d 198, 200-01 (8th Cir. 1996); Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995) (“The prisoner must show more than negligence, more even than gross negligence, and mere disagreement with treatment decisions does not rise to the level of a constitutional violation.”).

In contrast to negligence, “deliberate indifference requires a highly culpable state of mind approaching actual intent.” Choate v. Lockhart, 7 F.3d 1370, 1374 (8th Cir. 1993). “In the prison work assignment context, prison officials are deliberately indifferent when they knowingly compel ‘an inmate to perform labor that is beyond the inmate’s strength, dangerous to his or her life or health, or unduly painful.’ ” Ambrose, 474 F.3d at 1077 (quoting Sanchez v. Taggart, 144 F.3d 1154, 1156 (8th Cir. 1998)). The defendant-official’s state of mind “must be measured by the official’s knowledge at the time in question, not by ‘hindsight’s perfect vision.’” Schaub, 638 F.3d at 915 (quoting Lenz v. Wade, 490 F.3d 991, 993 n.1 (8th Cir. 2007)).

Kulkay argues the alleged conditions that led to his injury — Faribault officials’ failure to install the beam saw’s safety guards or provide Kulkay with any formal safety training — constitute an objectively serious risk of harm. Kulkay further contends officials had knowledge of this risk but failed to act. Kulkay argues several factors demonstrate officials knew of the risk posed by directing him to operate the beam saw: 1) the manufacturer’s safety guards sat unused in the workshop and were not installed on the saw; 2) officials knew other inmates had previously suffered injuries while using workshop equipment; 3) Kulkay did not receive safety training from officials on the proper use of the saw; 4) officials were aware the lack of safety guards on workshop equipment violates state and federal safety regulations; and 5) the primary responsibility of two of the named defendants, Schwartz and Remillard, was to ensure safety in the workshop and the overall facility. Kulkay contends the combination of these factors sets forth a plausible claim Faribault officials knew of the substantial risk of harm posed by the beam saw but assigned Kul-kay to operate the saw anyway.

Even if we assume, without deciding, Kulkay’s assignment to operate the beam saw with no safety guards and no formal training presents an objective risk of serious harm, Kulkay has not alleged facts sufficient to show Faribault officials were deliberately indifferent to that risk. A necessary element of deliberate indifference is that the defendant officials had actual knowledge of the substantial risk posed to an inmate’s health and safety. Young, 508 F.3d at 873. Kulkay’s allegations in this regard are lacking. At most, he suggests officials should have realized the safety risks posed by assigning him to the beam saw. But even accepting the allegations as true and construing them in Kulkay’s favor, the allegations fail to create the inference that officials had actual knowledge of those safety risks at the time in question.

The absence of certain safety equipment or training and the occurrence of similar injuries does not impute Fari-bault officials with knowledge of these conditions or the risk of harm they represent. To show deliberate indifference via circumstantial evidence, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970; accord Young, 508 F.3d at 873. Kulkay’s allegations are not enough to show officials had actual knowledge of the allegedly dangerous conditions in the workshop or that they willfully overlooked those dangers.

This court has rejected similar Eighth Amendment claims by inmates alleging unsafe workplace conditions based on failures as to evidence of deliberate indifference. In Bibbs v. Armontrout, an inmate working at a prison license-plate factory lost portions of his fingers after they became entangled in a machine’s gears. 943 F.2d 26, 26 (8th Cir. 1991). The inmate argued his Eighth Amendment rights were violated because the safety guards covering the gears had been removed. Id. We found the inmate had not alleged sufficient facts because he “point[ed] to no evidence showing that the prison officials knew that guards were not covering the gears of the [machine] or that they willfully overlooked the condition of the equipment.” Id. at 27.

Similarly, in Warren v. Missouri, an inmate injured his wrist while operating a table saw in a prison furniture factory. 995 F.2d 130, 130 (8th Cir. 1993). The inmate argued prison officials were deliberately indifferent to his safety because they failed to install safety equipment despite knowing of similar prior injuries. Id. We granted qualified immunity for the defendants and found that “[e]ven assuming that one or more defendants had knowledge of the allegedly similar prior accidents[,] ... this showing falls far short of creating a genuine issue of deliberate indifference to a serious issue of work place safety.” Id. at 131.

In Choate v. Lockhart, an inmate fell off a roof while working as part of a prison construction crew. 7 F.3d at 1373. The district court concluded prison officials violated the inmate’s Eighth Amendment rights based on several allegedly unsafe conditions at the worksite. Id. On appeal, this court reversed the district court and found the defendant officials did not possess the state of mind necessary for liability under the Eighth Amendment. Id. at 1376. We held that “although the [workplace] was perhaps not a model of workplace safety, the various safety deficiencies that the district court cited [did] not establish that [the officials] acted with deliberate indifference.” Id. at 1375.

This court in Stephens v. Johnson also considered whether failing to provide various safety measures and failing to train inmates on safety procedures amounted to an Eighth Amendment violation. 83 F.3d at 199. The inmate-plaintiffs in Stephens worked in a prison warehouse and jointly filed Eighth Amendment claims against prison officials for allegedly unsafe working conditions. Id. at 199-200. The inmates’ complaints were extensive:

(1) inmates were not issued safety equipment such as hard hats, protective eyew-ear, back braces, and steel-toed boots; (2) the forklift had no backup warning beeper; (3) the forklift and trucks had mechanical problems; (4) inmates were lifted up on bare forks of the forklift to retrieve materials from high shelves; (5) inmates were required to climb onto high shelves to retrieve objects; (6) dollies used to move furniture did not have safety straps; (7) inmates were required to lift heavy furniture up stairs and into awkward places; (8) inmates had to obtain drinking water from the bathroom sink; (9) the trucks had no first aid kits; and (10) inmates did not receive safety training.

Id. at 200. We held that “even assuming [an official] was aware of safety problems at the warehouse, such a showing falls short of creating a genuine issue of deliberate indifference to workplace safety.” Id. at 201.

Like in the above cases, the absence of safety equipment or procedures and an awareness of similar injuries fail to show the Faribault officials were deliberately indifferent to the risk of harm posed to Kulkay by the beam saw. Moreover, we join other circuits in concluding that state and federal safety regulations do not establish a standard for Eighth Amendment violations. See, e.g., Franklin v. Kan. Dep’t of Corr., 160 Fed.Appx. 730, 736 (10th Cir. 2005) (unpublished); French v. Owens, 777 F.2d 1250, 1257 (7th Cir. 1985). The mere existence of state and federal safety regulations does not charge prison officials with knowledge of potentially unsafe conditions in their facility.

The Faribault officials’ actions as to potential safety precautions in the workshop at most amount to negligence. But mere negligence is insufficient to state a claim under the Eighth Amendment. Cruel and unusual punishment does not result whenever a prison official may be to blame for an inmate’s injuries. In the words of our Supreme Court, “an official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838, 114 S.Ct. 1970.

As discussed above, the two-pronged qualified immunity analysis asks “whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and ... whether that right was clearly established at the time of the defendant’s alleged misconduct.” Mitchell v. Shearrer, 729 F.3d 1070, 1074 (8th Cir. 2013). Taking the alleged facts in Kulkay’s favor, Kulkay fails to state a plausible claim for an Eighth Amendment violation because he has not shown the defendant officials were deliberately indifferent to his health or safety. Without a plausible constitutional claim, Kulkay fails the first prong of the qualified immunity analysis. We need not proceed to the second prong to determine whether the alleged constitutional violation was also clearly established at the time in question. See Ransom v. Grisafe, 790 F.3d 804, 812 n.4 (8th Cir. 2015) (per curiam) (citing Pearson, 555 U.S. at 236, 129 S.Ct. 808; Fields v. Abbott, 652 F.3d 886, 894 (8th Cir. 2011)); cf. Stoner v. Watlingten, 735 F.3d 799, 803 (8th Cir. 2013) (considering whether a constitutional right was clearly established after concluding the defendant violated the right). We conclude the individual defendants are therefore entitled to qualified immunity.

IV.

Kulkay argues that even if the defendants are entitled to qualified immunity, this court should still reverse and remand to the district court to allow Kul-kay the opportunity to conduct discovery. But “[ujnless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Kulkay is therefore not entitled to discovery before his claims are dismissed. See Iqbal, 556 U.S. at 671, 129 S.Ct. 1937 (explaining qualified immunity is “both a defense to liability and a limited ‘entitlement not to stand trial or face the other burdens of litigation’ ” (quoting Mitchell, 472 U.S. at 526, 105 S.Ct. 2806)); id. at 678-79, 129 S.Ct. 1937 (“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”); Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (“[By] operating on the assumption that the factual allegations in the complaint are true, [Rule 12(b)(6) ] streamlines litigation by dispensing with needless discovery and factfinding.”).

V.

For the foregoing reasons, Kulkay’s claims were properly dismissed. Kulkay has not sufficiently alleged the defendant officials were deliberately indifferent to his health or safety and so has not stated a plausible claim for an Eighth Amendment violation. The officials are thus entitled to qualified immunity. Moreover, because Kulkay fails to state a claim of violation of clearly established law, he is not entitled to discovery before dismissal. The judgment of the district court is affirmed.

      . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota, adopting the report and recommendation of the Honorable Tony N. Leung, United States Magistrate Judge for the District of Minnesota.


source: Caselaw Access Project

author: GRABER, Circuit Judge:

license: Public Domain

text:
    State of MISSOURI EX REL. Chris KOSTER, Attorney General; State of Nebraska ex rel. Jon Bruning, Attorney General; State of Oklahoma ex rel. E. Scott Pruitt, Attorney General; State of Alabama ex rel. Luther Strange, Attorney General; Commonwealth of Kentucky ex rel. Jack Conway, Attorney General; Terry E. Branstad, Governor of State of Iowa, Plaintiffs-Appellants, v. Kamala D. HARRIS, in her official capacity as Attorney General of the State of California; Karen Ross, in her official capacity as Secretary of the California Department of Food and Agriculture, Defendants-Appellees, and Humane Society of the United States; Association of California Egg Farmers, Intervenor-Defendants-Appellees.
    No. 14-17111
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 19, 2016, San Francisco, California
    Filed November 17, 2016
    Amended January 17, 2017

      J. Andrew Hirth (argued), Deputy General Counsel, Office of the Missouri Attorney General, Jefferson City, Missouri, for Plaintiffs-Appellants.
    Paul Stein (argued) and Stephanie F. Zook, Deputy Attorneys General; Constance L. LeLouis, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, San Francisco, California; for Defendants-Appellees.
    Bruce Wagman (argued), Sehiff Hardin LLP, San Francisco, California; Rebecca Cary and Peter A. Brandt, Humane Society of the United States, Washington, D.C.; Jonathan Y. Ellis and J. Scott Bal-lenger, Latham & Watkins LLP, Washington, D.C.; for Intervenor-Defendanfr-Ap-pellee Humane Society of the United States.
    Carl Nichols (argued), Thomas G. Sprankling, Adam I. Klein, and Francesco Valenti, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Randall R. Lee, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Intervenor-Defendant-Appellee Association of California Egg Farmers.
    Sean D. Reyes, Utah Attorney General; Parker Douglas, Utah Federal Solicitor; Utah Attorney General’s Office, Salt Lake City, Utah; for Amicus Curiae State of Utah.
    Timothy S. Bishop, Michael B. Kimberly, and James F. Tierney, Mayer Brown LLP, Washington, D.C.; Ellen B. Steen and Danielle Halleom Quist, America Farm Bureau Federation, Washington, D.C.; for Amicus Curiae American Farm Bureau Federation.
    Diane L. McGimsey, Edward E. Johnson, Janet Y. Galería, and Jonathon D. Townsend, Sullivan & Cromwell LLP, Los Angeles, California, for Amici Curiae Animal Legal Defense Fund; Compassion Over Killing, Inc.; and Farm Sanctuary, Inc.

      Before: SUSAN P. GRABER and MARY H. MURGUIA, Circuit Judges, and RANER C. COLLINS, Chief District Judge.

       The Honorable Raner C. Collins, Chief United States District Judge for the District of Arizona, sitting by designation.

   ORDER

The opinion filed November 17, 2016, and published at 842 F.3d 658, is amended by the opinion filed concurrently with this order. No further petitions for rehearing or rehearing en banc may be filed.

OPINION

GRABER, Circuit Judge:

California enacted laws and regulations prescribing standards for the conditions under which chickens must be kept in order for their eggs to be sold in the state. Plaintiffs are six states, which sued to block enforcement of those laws and regulations before they took effect. We agree with the district court that Plaintiffs lacked standing to bring this case as par-ens patriae. We also hold that the district court did not err in denying Plaintiffs leave to amend their complaint. But because the action should have been dismissed without prejudice, we affirm but remand with instructions to dismiss the action without prejudice.

In the 2008 general election, California voters adopted Proposition 2, which enacted new standards beginning on January 1, 2015, for housing farm animals within California including, as relevant here, egg-laying hens. Cal. Health & Safety Code §§ 25990-94. Under Proposition 2, hens may not be confined for the majority of any day “in a manner' that prevents [them] from: (a) Lying down, standing up, and fully extending [their] limbs; and (b) Turning around freely.” Id. § 25990. A violation of these standards is punishable by a $1,000 fine or imprisonment of 180 days in county jail, or both. Id. § 25993.

In 2010, California’s legislature adopted Assembly Bill 1437 (“AB1437”), which mandated, also beginning on January 1, 2015, that “a shelled egg shall not be sold or contracted for sale for human consumption in California if the seller knows or should have known that the egg is the product of an egg-laying hen that was confined on a farm or place that is not in compliance with animal care standards set forth in [Proposition 2].” Cal. Health & Safety Code § 25996. Therefore, all eggs sold in California must comply with Proposition 2. In 2013, the California Department of Food and Agriculture promulgated egg-related regulations, including salmonella prevention measures and minimum cage sizes for egg-laying hens, all of which also carried an effective date of January 1, 2015. Cal. Code Regs. tit. 3, § 1350(d)(1).

On February 3, 2014, the State of Missouri filed a complaint in the Eastern District of California, asking the court to declare AB1437 and California Code § 1350(d)(1) (collectively the “Shell Egg Laws”) invalid, as violating the Commerce Clause or as preempted by federal statute, and to enjoin California from enforcing the laws. Plaintiffs then filed their First Amended Complaint (the “complaint”), joining the States of Nebraska, Oklahoma, Alabama, and Kentucky and the Governor of Iowa as additional plaintiffs. The Humane Society of the United States and the Association of California Egg Farmers (“Intervenors”) moved to intervene as defendants, which the court allowed. Defendants filed a motion to dismiss for lack of subject matter jurisdiction; Intervenors filed their own, similar motions. The district court granted the motions to dismiss, with prejudice. The court concluded that Plaintiffs lacked standing as parens patri-ae, held that their claim was not justicia-ble, and denied leave to amend as futile. Plaintiffs timely appeal.

A. Parens Patriae Standing

States asserting parens patriae standing must meet both the basic requirements of Article III standing and the unique requirements of that doctrine. Table Bluff Reservation (Wiyot Tribe) v. Philip Morris, Inc., 256 F.3d 879, 885 (9th Cir. 2001). “To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and re-dressable by a favorable ruling.” Clapper v. Amnesty Int'l USA, — U.S.-, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (internal quotation marks omitted). In a parens patriae case, there are two additional requirements. First, “the State must articulate an interest apart from the interests of particular private parties, ie., the State must be more than a nominal party.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez (“Snapp”), 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982). Second, “[t]he State must express a quasi-sovereign interest.” Id. On de novo review, Habeas Corpus Res. Ctr. v. U.S. Dep’t of Justice, 816 F.3d 1241, 1247 (9th Cir. 2016), we conclude that Plaintiffs have not met the first requirement. We therefore need not, and do not, reach the see-ond part of the test, nor do we reach the issue of ripeness.

There are no “definitive limits on the proportion of the population of the State that must be adversely affected.” Snapp, 458 U.S. at 607, 102 S.Ct. 3260. But “more must be alleged than injury to an identifiable group of individual residents.” Id. “[T]he indirect effects of the injury must be considered as well in determining whether the State has alleged injury to a sufficiently substantial segment of its population.” Id.

Concerning the parties, the complaint alleges: “Missouri farmers produced nearly two billion eggs in 2012 and generated approximately $171 million in revenue for the state”; “Nebraska is one of the top ten largest egg producers in the United States”; “Alabama is one of the top fifteen largest egg producers in the United States”; “Kentucky farmers produced approximately 1.037 billion eggs in 2012 and generated approximately $116 million in revenue for the state”; “Oklahoma farmers produced more than 700 million eggs in 2012 and generated approximately $90 million in revenue for the state”; and “Iowa is the number one state in egg production^] Iowa farmers produce over 14.4 billion eggs per year,” and “[t]he cost to Iowa farmers to retrofit existing housing or build new housing that complies with AB1437 would be substantial.”

The laws “fore[e] Plaintiffs’ farmers either to forgo California’s markets altogether or accept significantly increased production costs just to comply.” That is, “Plaintiffs’ egg farmers must choose either to bring their entire operations into compliance ... or else simply leave the California marketplace.” “[T]he necessary capital improvements [would] cost Plaintiffs’ farmers hundreds of millions of dollars,” and, without access to the California market, “supply would outpace demand by half a billion eggs, causing the price of eggs— as well as egg farmers’ margins — to fall throughout the Midwest and potentially forc[e] some Missouri producers out of business. The same goes for egg producers in Nebraska, Alabama, Oklahoma, Kentucky, and Iowa.”

In short, the complaint alleges the importance of the California market to egg farmers in the Plaintiff States and the difficult choice that egg fanners face in deciding whether to comply with the Shell Egg Laws. The. complaint contains no specific allegations about the statewide magnitude of these difficulties or the extent to which they affect more than just an “identifiable group of individual” egg farmers. Snapp, 458 U.S. at 607, 102 S.Ct. 3260.

Plaintiffs advance several theories to demonstrate “an interest apart from the interests of particular private parties” and an effect on “a sufficiently substantial segment of [the] population.” Id. First, Plaintiffs allege harm to their egg farmers. Second, Plaintiffs argue that the Shell Egg Laws will cause harmful fluctuations in the price of eggs. Finally, Plaintiffs allege that they will suffer discrimination from the Shell Egg Laws. For the reasons that follow, none of these theories establishes standing.

1. Alleged Harm to Egg Farmers

Alleging harm to the egg farmers in Plaintiffs’ States is insufficient to satisfy the first prong of parens patriae standing. Other courts have recognized that parens patriae standing is inappropriate where an aggrieved party could seek private relief. The Second Circuit, for example, held that “[pjarens patriae standing ... requires a finding that individuals could not obtain complete relief through a private suit.” N.Y. ex rel. Abrams v. 11 Cornwell Co., 695 F.2d 34, 40 (2d Cir. 1982), vacated in part on other grounds, 718 F.2d 22 (2d Cir. 1983) (en banc); see also Connecticut v. Physicians Health Servs. of Conn., Inc., 103 F.Supp.2d 495, 504 (D. Conn. 2000) (noting that “the Second Circuit has interpreted Snapp to require a finding that the State act on behalf of individuals who could not obtain complete relief through a private suit”). Here, complete relief would be available to the egg farmers themselves, were they to file a complaint on their own behalf.

Supreme Court cases in which private relief was held to be unlikely or unrealistic illustrate why parens patriae standing does not lie here. In Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901), though never explicitly calling it a parens patriae case, the Supreme Court heard a sewage dispute between two states. The Court observed that “the nature of the injury complained of is such that an adequate remedy can only be found in this court at the suit of the state of Missouri.” Id. at 241, 21 S.Ct. 331. The Court emphasized that the “health and comfort of the large communities inhabiting those parts of the state situated on the Mississippi River are not alone concerned, but contagious and typhoidal diseases introduced in the river communities may spread themselves throughout the territory of the state.” Id.; see also Snapp, 458 U.S. at 603, 102 S.Ct. 3260 (describing “a line of cases ... in which States successfully sought to represent the interests of their citizens in enjoining public nuisances”). In other words, Missouri alleged that a public health hazard affected its entire population. By contrast, the Shell Egg Laws are not alleged to threaten the health of the entire population (or, indeed of anyone), and those directly affected— egg farmers — are capable of pursuing their own interests.

A rationale similar to that in Missouri v. Illinois supported parens patriae standing in Maryland v. Louisiana, 451 U.S. 725, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). There, Louisiana imposed a “First-Use Tax” on natural gas piped into the state from federal offshore drilling areas. A group of states, later joined by the federal government and several pipeline companies, filed an original jurisdiction suit in the Supreme Court challenging the tax under, among other sources, the Commerce Clause. The Court found jurisdiction on several theories, including the States’ interest as parens patriae. Id. at 737, 101 S.Ct. 2114. The Court observed that

the incidence of the Tax [does not] fall on a small group of citizens who are likely to challenge the Tax directly. Rather, a great many citizens in each of the plaintiff States are themselves consumers of natural gas and are faced with increased costs aggregating millions of dollars per year. As the Special Master observed, individual consumers cannot be expected to litigate the validity of the First-Use Tax given that the amounts paid by each consumer are likely to be relatively small.

Id. at 739, 101 S.Ct. 2114. Maryland v. Louisiana’s logic counsels the opposite re-sült here: Whereas millions of consumers probably cannot challenge another state’s tax on their commodities, large egg producers certainly could file an action like this one on their own.

2. Alleged Fluctuation in the Price of Eggs

Plaintiffs argue that fluctuations in the price of eggs will harm consumers, thereby affecting a substantial segment of their populations and establishing parens patriae standing. Plaintiffs filed their complaint before the Shell Egg Laws took effect. As a result, their allegations about the potential economic effects of those laws, after implementation, were necessarily speculative. Indeed, Plaintiffs’ allegations are inconsistent; the complaint alleges that prices will go either up or down. On the one hand, Plaintiffs allege that farmers must bring all egg facilities into compliance with the Shell Egg Laws, regardless of the proportion of their product actually bound for California, because the demand across markets fluctuates. The cost of “compliant” eggs will thus increase across the board. On the other hand, Plaintiffs allege that, if farmers decline to comply and they exit the California market, “the price of eggs ... [would] fall throughout the Midwest.” Neither of these alleged results is sufficient to support parens pat-riae standing.

At the outset, the unavoidable uncertainty of the alleged future changes in price makes the alleged injury insufficient for Article III standing. In Lujan v. Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Supreme Court explained that it is “substantially more difficult” for a plaintiff to establish standing when the plaintiff “is not himself the object of the government action or inaction he challenges”:

[C]ausation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction — and perhaps on the response of others as well. The existence of one or more of the essential elements of standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict, and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.

Id. (citations and internal quotation marks omitted). Although Lujan describes facts that must be averred on summary judgment, the complaint here cannot allege, even under the more permissive standards at the pleading stage, that the choices leading to consumer price increases “have been or will be made.” Id. Instead, the allegations in the complaint are “too speculative for Article III purposes,” and Plaintiffs have failed to explain how the injury is “certainly impending.” Id. at 565 n.2, 112 S.Ct. 2130 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)); see also Clapper, 133 S.Ct. at 1147 (rejecting the Second Circuit’s “objectively reasonable likelihood” standard as “inconsistent with our requirement that threatened injury must be certainly impending to constitute injury in fact” (internal quotation marks omitted)); Ass’n of Pub. Agency Customers v. Bonneville Power Admin., 733 F.3d 939, 952 (9th Cir. 2013) (finding concrete, particularized injury when utility price increases will affect customer-plaintiffs indirectly due to “ ‘pass-through’ contracts” that “almost certainly” pass along increases). Unlike the First-Use Tax in Maryland v. Louisiana or the threatened withdrawal of West Virginia gas in Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923) — both of which presented state actions with nearly certain price effects for many or all of the plaintiffs’ citizens — here, the alleged price effects for consumers are remote, speculative, and contingent upon the decisions of many independent actors in the causal chain in response to California laws that have no direct effect on either price or supply. The Supreme Court has been “reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment.” Clapper, 133 S.Ct. at 1150.

In one of the proposed scenarios Plaintiffs suggest could occur, the egg farmers in Plaintiffs’ states do not bring their farms into compliance with the Shell Egg Laws. If Plaintiffs’ allegation correctly predicts that egg prices in the Midwest would drop due to excess supply, no ill effects for egg consumers would come to pass. Indeed, such a change would benefit Plaintiffs’ consumers. It would be only egg farmers, not consumers, who might suffer an injury in that scenario. But, as we have explained, an injury to egg farmers alone is not sufficient to sustain parens patriae standing. In short, Plaintiffs’ price-related allegations do not support Article III standing.

The result in Maryland v. Louisiana is not to the contrary. There, explaining that a state “may act as the representative of its citizens in original actions where the injury alleged affects the general population of a State in a substantial way,” 451 U.S. at 737, 101 S.Ct. 2114 (emphasis added), the Court found that the plaintiff states had alleged injury both to their proprietary interests as gas consumers and to their citizens “from substantial economic injury presented by imposition of the First-Use Tax,” id. at 739, 101 S.Ct. 2114 (emphasis added). Plaintiffs do not allege a similarly substantial injury here. Natural gas is a commodity so universally critical to state governments, businesses, and ordinary consumers that the Supreme Court has twice granted parens patriae standing to challenge state actions that directly threaten shortages or price increases. Id.; Pennsylvania, 262 U.S. at 592, 43 S.Ct. 658 (describing a cut-off in gas as “a matter of grave public concern”). An ordinary consumer commodity, such as eggs, lacks the central economic significance to a state of a utility’s product, such as natural gas.

3. Alleged Discrimination

Finally, Plaintiffs’ reliance on cases granting parens patriae standing to challenge discrimination against a state’s citizens is misplaced. The Shell Egg Laws do not distinguish among eggs based on their state of origin. A statute that treats “both intrastate and interstate products” alike “is not discriminatory.” Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 948 (9th Cir. 2013).

In Snapp, Puerto Rico, acting as parens patriae, sued on behalf of its workers who allegedly suffered discrimination under a federal hiring program. The Court rejected “too narrow a view of the interests at stake.” Snapp, 458 U.S. at 609, 102 S.Ct. 3260. Although only 787 jobs were at issue, the nature of the discrimination affected all Puerto Ricans, so Puerto Rico could pursue relief for all residents under a par-ens patriae theory. Id. But Snapp does not assist Plaintiffs because there is no discrimination here, whether to the few or to the many. As noted, California egg farmers are subject to the same rules as egg farmers from all other states, including California itself.

Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945), is no more helpful to Plaintiffs than is Snapp. There, Georgia sued a collection of southern railroads, alleging discriminatory price-fixing to the detriment of the entire economy of Georgia. The Court held that the State was not a mere nominal plaintiff, with “individual shippers being the real complainants.” Id. at 452, 65 S.Ct. 716. Instead, the implications of price discrimination against Georgia-based commerce were “matters of grave public concern in which Georgia ha[d] an interest apart from that of particular individuals who may be affected,” id. at 451, 65 S.Ct. 716, because rail rates “may arrest the development of a State or put it at a decided disadvantage in competitive markets,” id. at 450, 65 S.Ct. 716. By contrast, Plaintiffs allege no trade barriers erected against their broader economies- and, again, the Shell Egg Laws are not discriminatory. Accordingly, Plaintiffs’ allegations of discrimination do not establish parens patriae standing.

B. Leave to Amend

Plaintiffs urge us to reverse the district court’s denial of leave to amend their complaint. They seek “[a]t the very least ... to plead the additional information [that they have] gathered since the Shell Egg Laws went into effect.” “Denial of leave to amend is reviewed for an abuse of discretion.” Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011). “Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.” Thinket Ink Info Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004). But a “district court does not err in denying leave to amend where the amendment would be futile.” Id. (internal quotation marks omitted). An amendment is futile when “no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). We find no abuse of discretion.

First, Plaintiffs cannot satisfy the requirements of standing by adding events that have occurred after the Shell Egg Laws took effect. “[Standing is determined as of the commencement of litigation.” Yamada v. Snipes, 786 F.3d 1182, 1203 (9th Cir.), cert. denied, — U.S.-, 136 S.Ct. 569, 193 L.Ed.2d 428 (2015) (internal quotation marks omitted); accord D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008). Plaintiffs brought this action before the Shell Egg laws took effect. Accordingly, later developments cannot save the complaint.

Second, Plaintiffs argue that certain allegations were available when the complaint was filed and that they should be allowed to include them now. In particular, Plaintiffs wish to allege that eggs are an important, affordable source of protein with which the Shell Egg Laws threaten to interfere, and that the threat of increased egg prices affects not just egg farmers, but also “grocers, bakers, and restaurant owners.” But Plaintiffs also allege that the price of eggs might drop. Again, as discussed above, the contingent and uncertain nature of the alternatives available to plead when this complaint was filed are inadequate to support Article III standing.

In short, Plaintiffs would be unable to assert parens patriae standing in an amended complaint. The district court did not err by denying leave to amend.

C. Dismissal With Prejudice

Finally, Plaintiffs argue that, because the district court dismissed the complaint for lack of subject matter jurisdiction, the dismissal should have been without prejudice. “We review for abuse of discretion a district court’s decision to dismiss with prejudice.” Okwu v. McKim, 682 F.3d 841, 844 (9th Cir. 2012).

In general, dismissal for lack of subject matter jurisdiction is without prejudice. See Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004) (dismissing a complaint without prejudice when the amount in controversy requirement was not met); Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999) (order) (“Dismissals for lack of jurisdiction should be without prejudice so that a plaintiff may reassert his claims in a competent court.” (internal quotation marks and ellipsis omitted)). The theory undergirding the general rule is that “the merits have not been considered” before dismissal. Cooper v. Ramos, 704 F.3d 772, 777 (9th Cir. 2012). Plaintiffs have not satisfied the requirements of parens patri-ae standing. In theory, Plaintiffs could allege post-effective-date facts that might support standing. As a result, the complaint should have been dismissed without prejudice. See City of Oakland v. Hotels.com LP, 572 F.3d 958, 962 (9th Cir. 2009) (affirming dismissal but remanding to dismiss without prejudice); Kelly, 377 F.3d at 1040 (affirming with instructions to enter order of dismissal without prejudice).

The judgment of the district court is AFFIRMED and the case is REMANDED with instructions to dismiss this action without prejudice.

      . It is unclear whether "substantial segment of the population” and "interest apart from the interest of particular private parties” are separate elements of standing. See, e.g., Washington v. Chimei Innolux Corp., 659 F.3d 842, 847 (9th Cir. 2011) (describing these as separate requirements). Snapp itself suggests that “substantial segment” may be merely an additional explanation of the need for the State to be "more than a nominal party.” 458 U.S. at 607, 102 S.Ct. 3260. The district court likewise combined these concepts into one element. Given the close similarity of the parties’ arguments under these headings, we discuss the two formulations as a single element, but we would reach the same conclusion even if we treated them separately.

      . At a hearing, the district court asked Plaintiffs where in their complaint they alleged harm to more than just egg producers. Plaintiffs’ lawyer pointed to paragraphs 7 and 13. Paragraph 7 describes harm to egg farmers. Paragraph 13 includes no specific facts, stating only, in conclusory fashion, that "Missouri's economy and status within the federal system will be irreparably injured.”

      . As construed by the district court and as argued on appeal, Plaintiffs seek to amend their complaint. They do not seek to supplement the pleadings pursuant to Federal Rule of Civil Procedure 15(d).