author: KELLY, Circuit Judge.

text:
    Barbara WILLIAMS, Plaintiff-Appellant v. EMPLOYERS MUTUAL CASUALTY COMPANY; Capitol Indemnity Insurance Co.; Owners Insurance Company; The Collier Organization, Inc.; Employers Mutual Casualty Company, Defendants-Appellees
    No. 15-3573
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 20, 2016
    Filed: January 12, 2017

      Counsel who presented argument on behalf of the appellant was Robert P. Berry, of Saint Louis, MO. The following attorney(s) appeared on the appellant brief; Timothy A. Engelmeyer, of Chesterfield, MO., Robert P. Berry, of Saint Louis, MO., Kevin C. Roberts, of Hillsboro, MO., Anthony M. Pezzani, of Chesterfield, MO.
    Counsel who presented argument on behalf of the appellee Owners Insurance Company was John J. Bursch, of Caledonia, MI. The following attorney(s) appeared on the appellee brief; Russell F. Watters, of Saint Louis, MO., Thomas Michael Ward, of Saint Louis, MO., John J. Bursch, of Caledonia, ML, Robert L. Carter, of Saint Louis, MO., David McCourt, of Saint Louis, MO. and Matthew T. Nelson, of Grand Rapids, MI.
    Counsel who presented argument and appeared on the brief on behalf of the appellee Capitol Indemnity Insurance Company was Patrick Florian Hofer, of Washington, D.C. The following attorney(s) appeared on the appellee brief; Alan K. Goldstein and Giles B. Howard, of St. Louis, MO., John R. Gerstein, of Washington, D.C., Wm. Clayton Crawford and Ab-bigale A. Gentle of Kansas City, MO.
    Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

Plaintiff-appellant Barbara Williams appeals the district court’s denials of two motions to remand; grant of judgment on the pleadings in favor of the defendant-appellees Employers Mutual Casualty Company, Capitol Indemnity Insurance Co., and Owners Insurance Company; and grant of consent judgment in favor of the defendant-appellee The Collier Organization, Inc. We affirm.

I. Background

The Collier Organization, Inc. (Collier) was the owner of Autumn Hills Mobile Home Park (Autumn Hills) in Old Monroe, Missouri. From 1998 to 2009, Collier purchased commercial general liability insurance policies from three different insurance companies: Employers Mutual Casualty Company (Employers), Capitol Indemnity Insurance Company (Capitol), and Owners Insurance Company (Owners) (collectively, the Insurers). Employers issued three year-long policies, covering the period from March 13, 1999, to March 13, 2002. Capitol issued two year-long policies, covering the period from April 1, 2003, to April 1, 2005. Owners issued four yearlong policies, covering the period from April 1, 2005, to April 1, 2009. Each policy provided that the relevant insurance company had a duty to defend and indemnify Collier for “bodily injury and property damage” resulting from “occurrences.”

On March 5, 2008, Michelle Pratt brought a class-action lawsuit (Original Action) in Lincoln County, Missouri Circuit Court on behalf of the residents of Autumn Hills against Collier and two other entities that are not parties in this case. Williams was later substituted as class representative. The state court certified a class of Autumn Hills residents.

The complaint alleged that from 1999 to 2008, the two wells that supplied Autumn Hills with drinking water contained illegal levels of Radium 226, combined Radium 226 and Radium 228, gross alpha particle activity, and coliform bacteria. According to the complaint, Collier was aware the water supply was contaminated, and failed to correct the issue. Further, the complaint alleged that Collier failed to inform Autumn Hills residents of the contamination, as required by Missouri law. As a result, the complaint stated, class members “suffered injury and damages including, but not limited to, the payment of monies to the Defendants for rent, water and sewer systems; the diminution in value of ... property; costs of relocation; purchasing alternative sources of water; mental anguish and other damages.” The complaint additionally alleged that Collier promised to build a picnic area, basketball court, and other amenities at Autumn Hills, and never did. The complaint asserted claims for fraud, violation of the Missouri Merchandising Practice Act, breach of the implied warranty of habitability, negligence, negligence per se, and breach of contract.

Collier informed each of the Insurers of the complaint, and demanded indemnity and defense. Each of the Insurers declined. Thereafter, Williams entered into an agreement with Collier, which provided that Collier would assign the rights to its insurance proceeds to Williams, as class representative. In exchange, Williams agreed that if the class obtained judgment against Collier, the class’ recovery would be limited to those insurance proceeds. This type of agreement is specifically authorized by Missouri law. See Mo. Rev. Stat. § 537.065.

The state court held an evidentiary hearing to determine liability. At the hearing, Williams dismissed all claims except for the negligence claim, and orally amended the pleadings to add a claim for trespass. Shortly after the hearing, the state court entered findings of fact, conclusions of law, and a judgment in favor of the class. Specifically, the state court concluded that Collier “pump[ed] water with levels of combined Radium 226 and Radium 228 and Gross Alpha Particle Activity levels that exceeded the established máximums.” The state court also concluded that the class suffered bodily injury and property damage as a result of the Radium and alpha particle activity in the water. On August 28, 2013, after a separate hearing on damages, the state court awarded the plaintiffs $70,085,000 for medical monitoring, and $11,952,000 for the loss in value to their homes.

On October 18, 2013, Williams filed an equitable garnishment action in state court against the Insurers and Collier pursuant to Missouri Revised Statute § 379.200, which provides that if a plaintiffs judgment against a defendant is not satisfied within thirty days, “the judgment creditor may proceed in equity against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment.” The complaint stated that Williams was bringing the equitable garnishment action “as class representative, by and through class counsel.”

The Insurers removed the case to the United States District Court for the Eastern District of Missouri, asserting jurisdiction under the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d). Williams moved to remand, arguing that the equitable garnishment action was not a “class action” as defined by § 1332(d)(1)(B). The district court denied the motion on April 8, 2014, concluding that although the garnishment action was not brought under a statute specifically authorizing class action suits, it was a class action under CAFA because Williams filed it on behalf of a class. Later, after the case was reassigned to a different district court judge, Williams filed a renewed motion to remand, which the district court denied on July 28, 2015.

The Insurers each moved for judgment on the pleadings. Each argued that it was not obligated to defend or indemnify Collier, because none of the claims asserted in the Original Action were covered by the policies issued to Collier. The district court granted judgment on the pleadings in favor of the Insurers on March 2, 2015. First, it concluded as a matter of law that the allegations that Autumn Hills’ drinking water supply contained illegal levels of Radium, alpha particle activity, and coliform bacteria fell within a pollution exclusion contained in each policy. Second, it concluded as a matter of law that the allegations that Collier failed to build promised amenities at Autumn Hills were not covered by the policies because the policies did not provide coverage for breach of contract.

At that point, Collier still had not been served with process. On March 3, 2015, the district court ordered Williams to show cause as to why Collier should not be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Williams responded, explaining that if she filed an appeal before obtaining service on Collier, the Eighth Circuit might deem the appeal premature, and remand it to the district court. Williams then served Collier. Collier failed to appear, and Williams moved for a default judgment, which was granted on August 25, 2015. On October 8, 2015, the court set aside the default judgment against Collier and allowed Collier to file a motion to dismiss, which it then denied.

On October 21, 2015, the distinct court entered a “Consent Judgment” in favor of Collier. The order stated, “The only remaining defendant in this equitable garnishment action is Collier. Collier is a nominal but necessary party under Missouri’s equitable garnishment statute. Mo. Rev. Stat. § 379.200. Based on its prior ruling, the Court finds no relief can be obtained against Collier under Mo. Rev. Stat. § 379.200 and the Court must enter judgment in favor of Collier.” Counsel for Collier and Williams both signed the judgment. Williams filed a notice of appeal on November 2, 2015.

II. Discussion

Williams appeals the district court’s denials of her two motions to remand, as well as the district court’s grant of judgment on the pleadings in favor of the Insurers, and grant of consent judgment in favor of Collier. Before we reach Williams’ arguments, we must consider the Insurers’ contention that we lack jurisdiction over this appeal.

A. Jurisdiction over appeal

As an initial matter, the Insurers contend that we lack jurisdiction to consider this appeal. They argue that a consent judgment is not appealable, that the March 2, 2015, judgment on the pleadings was a final judgment, and that the district court erred in granting Williams an extension of time to file a notice of appeal to the judgment on the pleadings. The Insurers previously moved to dismiss this appeal on the same grounds. An administrative panel denied that motion without comment. This court has an ongoing obligation to consider its own jurisdiction. United States v. Stanko, 762 F.3d 826, 828 n.3 (8th Cir. 2014) (per curiam). However, “an administrative panel’s denial of a motion to dismiss for lack of jurisdiction typically ‘is the law of the case, ordinarily to be adhered to in the absence of clear error or manifest injustice.’” Id (quoting McCuen v. Am. Cas. Co., 946 F.2d 1401, 1403 (8th Cir. 1991)).

First, the Insurers argue that a consent judgment like the one the district court entered in favor of Collier is not appeal-able. They further argue that all of the district court’s orders prior to the consent judgment merge into the consent judgment, and, therefore, are likewise not ap-pealable. We have previously held that appellate jurisdiction exists over all “final decisions,” regardless of what form they take. See Great Rivers Coop. v. Farmland Indus., Inc., 198 F.3d 685, 689 (8th Cir. 1999) (holding that there is appellate jurisdiction over a voluntary dismissal without prejudice, but noting that an appellate court has discretion to reverse a district court’s grant of voluntary dismissal, or to deem an ambiguous voluntary dismissal to be with prejudice). Here, the consent judgment was a final decision because it unconditionally disposed of the last of Williams’ unresolved claims. Thus, we have jurisdiction over the appeal of the consent judgment.

However, there is a non-jurisdictional limitation on appeals from consent judgments: Generally, where a party consents to a judgment, it has waived its right to appeal the claims disposed of by that judgment. See Scanlon v. M.V. SUPER SERVANT 3, 429 F.3d 6, 8 (1st Cir. 2005) (collecting cases); Walling v. Miller, 138 F.2d 629, 631 (8th Cir. 1943). But several courts have recognized an exception to this general rule, holding that a party has not waived its right to appeal a consent judgment when the consent judgment followed a ruling that was, as a practical matter, case-dispositive. Those courts reason that in such circumstances, the party adverse to the dispositive ruling has consented to putting the ruling in its final form, not to the substance of the judgment. See Taylor Brands, LLC v. GB II Corp., 627 F.3d 874, 878 (Fed. Cir. 2010) (stipulated judgment was appealable where it followed a partial summary judgment order that was practically case-dispositive); OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1357 (11th Cir. 2008) (consented-to judgment of dismissal was appealable where it followed the district court’s exclusion of the appellant’s expert witness, and the appellant’s legal malpractice claims inherently required the testimony of an expert witness); The Ansaldo San Giorgio I, 73 F.2d 40, 41 (2d Cir. 1934) (consent decree was appealable where it “merely carried into effect the court’s previous decision on a litigated issue”); cf. United States v. Procter & Gamble Co., 356 U.S. 677, 679-80, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) (judgment of dismissal was appeal-able where the government refused to obey a district court order to produce grand jury transcripts, and the government asked the district court to order dismissal as a sanction — rather than civil contempt or some other sanction — in order to expedite review).

Here, the record shows that Williams consented to entry of judgment because Collier was a nominal defendant, and, as a result, the district court’s grant of judgment on the pleadings in favor of the Insurers effectively disposed of Williams’ entire case. Under these circumstances, we conclude that Williams’ consent to entry of judgment against her represented consent to the form, rather than the substance, of the judgment. Accordingly, Williams has not waived her right to appeal the consent judgment.

Next, the Insurers argue that we have no jurisdiction over the appeal of the March 2, 2015, judgment on the pleadings entered in favor of the Insurers. According to the Insurers, the judgment on the pleadings was a final, appealable order, and the district court abused its discretion in granting Williams an extension of time to file its notice of appeal of the judgment. Thus, the Insurers argue, the notice of appeal of the judgment on the pleadings was filed out of time, depriving this court of jurisdiction.

A judgment that disposes of claims against some, but not all, defendants is generally not considered to be final and appealable. Fed. R. Civ. P. 54(b). However, it is not “necessary for the district court to have disposed of [an unserved party] to make the judgment entered ... final and appealable” because an unserved party is not a “party” under the meaning of Federal Rule of Civil Procedure 54(b). Young v. Mt. Hawley Ins. Co, 864 F.2d 81, 83 (8th Cir. 1988) (per curiam). Thus, the Insurers argue, the judgment on the pleadings was a final, appealable order even though Collier had not yet been served when the judgment on the pleadings was entered.

But “[a] district court decision is not final, and thus not appealable, unless there is some clear and unequivocal manifestation by the trial court of its belief that the decision made, so far as [the court] is concerned, is the end of the case.” Waterson v. Hall, 515 F.3d 852, 855 (8th Cir. 2008) (second alteration in original) (quoting Hunt v. Hopkins, 266 F.3d 934, 936 (8th Cir. 2001)). Here, there was no clear and unequivocal manifestation by the district court that the judgment on the pleadings disposed of the case. Rather, the day after entering the judgment on the pleadings, the district court ordered Williams to show cause as to why Collier should not be dismissed. Cf. Hunt, 266 F.3d at 936 (explaining that the “presumption of finality” that attaches to a dismissal order “erodes ... when the district court clearly manifests an intention to permit the plaintiffs action to continue once new pleadings are filed”). The district court continued to exercise jurisdiction over the case until the entry of the October 21,2015 consent judgment against Collier. Thus, in the district court’s view, the judgment on the pleadings was not the end of the case. As such, we. conclude that the judgment on the pleadings was not a final order, and, therefore, Williams did not file her notice of appeal out of time.

B. Order denying remand

Williams appeals the district court’s denials of her two motions to remand the present action to state court. She argues that the district court did not have jurisdiction over the present action because it is not a “class action” as defined by CAFA. We review the district court’s interpretation of CAFA de novo. Brown v. Mortg. Elec. Registration Sys., Inc., 738 F.3d 926, 931 (8th Cir. 2013).

Section 1332(d)(2) of Title 28 of the United States Code states that federal district courts have jurisdiction over any “civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action” where “any member of a class of plaintiffs is a citizen of a State different from any defendant.” Section 1332(d)(1) defines “class action” as “any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action.”

In the motions to remand, Williams argued that the present action is not a class action because it was not “filed under” Rule 23 or a state-law analogue. The parties do not dispute that the complaint in the Original Action referred to Missouri Rule of Civil Procedure 52.08, or that Rule 52.08 is analogous to Rule 23. But, Williams points out, the complaint in the present action does not refer to Rule 52.08; rather, it refers only to Missouri Revised Statute § 379.200 — the equitable garnishment statute that allows a plaintiff to satisfy a judgment against a tortfeasor’s insurer.

The district court concluded that, although labeled otherwise, the present action is a class action because it is a class action in substance. In the district court’s view, the fact that Williams brought the present action in her capacity as class representative “necessarily implies application of procedural rules that certified the class (and authorized plaintiff to act on behalf of that class) in the first place.” In reaching this conclusion, the district court relied on Addison Automatics, Inc. v. Hartford Casualty Insurance Co., 731 F.3d 740 (7th Cir. 2013).

In Addison, a plaintiff represented a class in a state-court class action. 731 F.3d at 741. The defendant agreed to entry of judgment against it, and the class agreed to execute the judgment against the defendant’s insurer. Id. The class representative filed a separate lawsuit against the insurer in state court, but purported to bring the action in an individual, rather than representative, capacity. Id. at 742. The insurer removed the case to federal court, asserting jurisdiction under CAFA. Id. The district court granted the class representative’s motion to remand to state court, finding that the action was not a class action. Id The Seventh Circuit reversed, concluding that although the case was brought as an individual suit, “[b]y pursuing the rights assigned to it as class representative in the state court class action, [the plaintiff] is necessarily continuing that class action.” Id. at 743.

Williams argues that Addison and the district court incorrectly interpreted CAFA when they concluded it was appropriate to look to the substance of a lawsuit to determine whether it is a class action. In her view, under the plain language of CAFA, an action is “filed under” Rule 23 or a state-law analogue only where the complaint expressly invokes such a rule, which the complaint in the present action does not do. Further, Williams contends that the complaint seeks no relief under class rules, and requires no resolution of class-related issues. Thus, Williams argues, this action is not a class action.

In support of her interpretation of CAFA, Williams cites cases from other circuits that have found no CAFA jurisdiction where a plaintiff brings a lawsuit in a representative capacity and cites a state statute or rule that is not analogous to Rule 23. For example, the Third Circuit held that there was no CAFA jurisdiction over a case brought under Rule 2152 of the Pennsylvania Rules of Civil Procedure, which allows members of an unincorporated association to sue on behalf of the association. Erie Ins. Exch. v. Erie Indem. Co., 722 F.3d 154, 158-59 (3d Cir. 2013). The court concluded that Rule 2152 was not sufficiently analogous to Rule 23 to justify CAFA jurisdiction, because Rule 2152 “contains none of the defining characteristics of Rule 23,” such as class certification mechanisms, requirements of numerosity or commonality, or requirements that absent class members be notified of the substance of the lawsuit. Id. Other courts have applied the same reasoning to other state statutes that allow a plaintiff to sue in a representative capacity, but are otherwise dissimilar to Rule 23. See, e.g., Baumann v. Chase Inv. Servs. Corp. 747 F.3d 1117, 1122-23 (9th Cir. 2014) (finding that California’s Private Attorneys General Act is not sufficiently similar to Rule 23); Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 216 (2d Cir. 2013) (finding that a parens patriae lawsuit brought by a state attorney general is not similar to Rule 23); West Virginia ex rel. McGraw v. CVS Pharm., Inc., 646 F.3d 169, 176 (4th Cir. 2011) (same).

Williams argues that, like the plaintiffs in the cases she cites, she is entitled to bring suit under whatever law she chooses. And, she argues, like those plaintiffs, she has chosen to bring suit pursuant to a state statute that is not analogous to Rule 23 — Missouri’s equitable garnishment statute. However, the circumstances of this case distinguish it from the line of cases Williams relies on. In each of those cases, the plaintiff cited some rule or statute that purportedly allowed the plaintiff to proceed as the representative of a group of people, but that otherwise was not sufficiently similar to Rule 23 for purposes of CAFA. Here, the equitable garnishment statute includes no provision authorizing a plaintiff to bring suit on behalf of others. Rather, it is clear from the pleadings that Williams can bring this case only because of her status as the representative of the class certified under Rule 52.08, an undisputed analogue of Rule 23. See Sondel v. Nw. Airlines, Inc., 56 F.3d 934, 939 (8th Cir. 1995) (holding that class representatives retain their fiduciary duties to the class even in separate proceedings).

Williams suggests that this fact is irrelevant, because the present case does not involve class-related questions. She notes that the complaint in the present action does not seek class certification, and asserts that there are no “notice, opt-out, or court approval issues involved” in the present ease. And, she points out, the district court did not actually resolve any class-related questions in its disposition of the case. Thus, she argues, even though she is proceeding on behalf of a class, that circumstance has no bearing on this case. We disagree. Even if recertification is unnecessary, the present action implicates other class-related issues. For example, if Williams chose to dismiss or settle this case in state court, the court would have been obligated to direct Williams to give notice to the members of the class under Rule 52.08(e). Again, Williams filed the complaint not in her individual capacity, but as class representative. And the fact that the district court did not ultimately resolve any class-related issues is irrelevant; a federal court’s jurisdiction under CAFA is “measured at the time of removal,” and does not depend on the ultimate outcome of the case. See Grawitch v. Charter Commc’ns, Inc., 750 F.3d 956, 959 (8th Cir. 2014).

In other words, although the complaint omits reference to Rule 52.08, it is clear from the face of the complaint that Rule 52.08 is the precise rule under which Williams proceeds in her effort to enforce the judgment obtained for the benefit of the class. Thus, because Rule 52.08 is un-disputedly analogous to Rule 23, we conclude that this action was “filed under” a state-law analogue to Rule 23, and is a class action for purposes of CAFA jurisdiction. To hold otherwise would prioritize a complaint’s use of magic words over its factual allegations. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982) (“[Interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.”). If we interpreted “any civil action filed under Rule 23” or a state-law analogue to refer only to cases that specifically mention Rule 23 or a state-law analogue, as Williams proposes, a plaintiff could avoid federal jurisdiction for a lawsuit that resembles a class action in all respects simply by omitting from the complaint the name of the rule or statute under which she proceeds.

Additionally, we note that our conclusion is in line with the legislative intent behind CAFA. In enacting CAFA, Congress expressed concern about lawyers who “ ‘game’ the procedural rules and keep nationwide or multi-state class actions in state courts whose judges have reputations for readily certifying classes and approving settlements without regard to class member interests.” S. Rep. No. 109-14, at 4 (2005). Thus, Congress emphasized that “class action” should be “interpreted liberally.” W. at 35. Congress explained, “[CAFA’s] application should not be confined solely to lawsuits that are labeled ‘class actions’ by the named plaintiff or the state rulemaking authority. Generally speaking, lawsuits that resemble a purported class action should be considered class actions for the purpose of applying these provisions.” Id. We conclude that allowing class-action plaintiffs to avoid federal jurisdiction simply by omitting explicit reference to the class-action rule they intend to proceed under would promote the kind of procedural gaming CAFA was enacted to prevent.

Finally, Williams argues that another provision of CAFA prohibits removal of an action to enforce a judgment on behalf of a previously certified class. Section 1332(d)(8) states, “[Section 1332(d)] shall apply to any class action before or after the entry of a class certification order by the court with respect to that action.” In Williams’ view, the phrase “with respect to that action” establishes that CAFA jurisdiction exists only over class actions in which a class has been or will be certified. But this interpretation is at odds with the plain language of § 1332(d)(8); it refers to “a” class certification order, not “the” class certification order. This phrasing may imply “an expectation that a class will or at least may be certified eventually,” but it does not limit federal jurisdiction to cases in which a class certification order is actually issued. Cunningham Charter Corp. v. Learjet, Inc., 592 F.3d 805, 806 (7th Cir. 2010). Furthermore, to hold that § 1332(d)(8) limits jurisdiction in that way would be at odds with our decision in Buetow v. A.L.S. Enterprises, Inc., in which we noted that federal jurisdiction over a class action continues even after a district court has denied class certification. 650 F.3d 1178, 1182 n.2 (8th Cir. 2011) (citing Learjet, Inc., 592 F.3d at 806), Accordingly, it is apparent that § 1332(d)(8) merely clarifies when it is permissible to remove a case, and does not impose prerequisites for jurisdiction beyond those articulated in § 1332(d)(2).

In sum, because Williams brought this action on behalf of a class previously certified under a state-law analogue to Rule 23, the action was necessarily “filed under” Rule 23 or a state-law analogue, even though the complaint omits explicit reference to such a rule. The district court therefore had jurisdiction over the present matter.

C. Judgment on the pleadings

Next, Williams appeals the district court’s grant of judgment on the pleadings to the Insurers, arguing that the district court erred in concluding that the Insurers had no duty to defend or indemnify Collier in the Original Action. We review de novo the grant of a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Greenman v. Jessen, 787 F.3d 882, 887 (8th Cir. 2015).

1. Duty to defend

The district court compared the complaint in the Original Action with the insurance policies, and concluded that the Insurers had no duty to defend Collier. First, the district court concluded that the allegations that Autumn Hills’ water contained illegal levels of Radium, alpha particle activity, and coliform bacteria did not give rise to a claim potentially within the policies’ coverage, because each policy contained a provision excluding coverage for bodily injury or property damage caused by pollutants. Second, the district court concluded that the allegations that Collier failed to build promised amenities did not give rise to claims potentially within the policies’ coverage because the policies did not cover breaches of contract. Williams contests both of these conclusions. The parties agree that Missouri law applies to the interpretation of the insurance policies.

Under Missouri law, if an insurer unjustifiably refuses to defend a claim because it is outside the policy, the insurer will be “liable to the insured for all resultant damages from that breach of contract.” Schmitz v. Great Am. Assur. Co., 337 S.W.3d 700, 710 (Mo. banc 2011) (quoting Whitehead v. Lakeside Hosp. Ass’n, 844 S.W.2d 475, 481 (Mo. Ct. App. 1992)). But “[wjhere the claim is actually outside the policy coverage, the refusal of the insurer to defend is a justified refusal, the insurer is not guilty of a breach of contract and incurs no legal liability by its action.” Whitehead, 844 S.W.2d at 481.

An insurer’s duty to defend “arises whenever there is a potential or possible liability to pay based on the facts at the outset of the case and is not depen-dant on the probable liability to pay based on the facts ascertained through trial.” McCormack Baron Mgmt. Servs., Inc. v. Am. Guarantee & Liab. Ins. Co., 989 S.W.2d 168, 170 (Mo. banc 1999) (quoting 13 John A. Appleman & Jean Appelman, Insurance Law and Practice § 4684 (rev. vol. 1976)). To determine whether an insurer had a duty to defend, courts must “com-parte] the language of the insurance policy with the allegations in the complaint.” Id. If the complaint “alleges facts that give rise to a claim potentially within the policy’s coverage, the insurer has a duty to defend.” Id. at 170-71.

In construing insurance policies, Missouri courts apply “the meaning which would be attached by an ordinary person of average understanding if purchasing insurance, and resolves ambiguities in favor of the insured.” Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc 2010) (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007)). The burden of proving an insurance exclusion lies with the insurer, and insurance exclusions are strictly construed against the insurer. Id. at 510.

a. Pollution exclusion

Williams first contends that the pollution exclusion contained in each insurance policy does not, as a matter of law, bar coverage for the claims that Autumn Hills’ water had illegal levels of Radium, alpha particle activity, and coliform bacteria. Each of the policies Employers issued to Collier provided that the policy would not cover “ ‘[b]odily injury5 or ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or' escape of ‘pollutants’ ... [a]t or from any premises, site or location which is or was at any time owned or occupied by, rented or loaned to, any insured.” Each of the policies issued by Owners contained an identical provision. Each of the policies issued by Capitol provided that the policy would not cover “ ‘[bjodily injury5 or ‘property damage’ which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ at any time.” All of the policies contained a provision stating, “ ‘Pollutants’ mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”

The district court determined as a matter of law that the pollution exclusions applied to Williams’ claims that Autumn Hills’ water contained illegal levels of Radium, alpha particle activity, and coliform bacteria. First, the district court noted that alpha particles are emitted by Radium during the decay process, that alpha particles can travel only very short distances away from Radium, and that Radium is indisputably a solid. In so concluding, the district court cited an Environmental Protection Agency (EPA) fact sheet. The district court further determined that Radium and alpha particles are contaminants under the plain meaning of that word. Next, the district court concluded that coliform bacteria are also solid, liquid, gaseous, or thermal, and that they are contaminants under the plain meaning of the word. Thus, the district court explained, “There can be no dispute that the contaminants at issue here are pollutants under the policy.” Williams contends that the district court erred in reaching this conclusion as a matter of law.

i. Alpha particle activity and Radium

As an initial matter, Williams argues that the district court erred in relying on an EPA fact sheet to determine that Radium is a solid that emits alpha particles. Williams contends that the district court did not take judicial notice of the EPA fact sheet, and that, even if the district court had done so, such judicial notice would have been inappropriate.

On a motion for judgment on the pleadings, matters outside the pleadings generally cannot be considered without converting the motion to one for summary judgment. Fed. R. Civ. P. 12(d). However, courts may “consider ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned;’ without converting the motion into one for summary judgment.” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)). Under Federal Rule of Evidence 201(b), a court may take judicial notice of a “fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” This can include well-established scientific theories and principles. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 n.11, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). “We review a district court's decision to take judicial notice for abuse of discretion,” Am. Prairie Constr. Co. v. Hoich, 560 F.3d 780, 796 (8th Cir. 2009).

Here, it is clear that the district court took judicial notice of the fact that Radium is a solid that emits alpha particles. Although the court did not use the specific phrase “judicial notice,” the district court implicitly acknowledged the limitations on its ability to consider matters outside the pleadings. It used phrases like “[tjhere can be no dispute” and “Radium is indisputably a solid which emits alpha particles”— language intended to address Rule 201’s requirement that only facts “not subject to reasonable dispute” can be judicially noticed.

Furthermore, the district court did not abuse its discretion in taking judicial notice of the fact that Radium is a solid that emits alpha particles. Williams contends that judicial notice was inappropriate because there were disputed matters at hand. We disagree. Although Williams disputes that alpha particles are solid, liquid, gaseous, or thermal, she does not meaningfully dispute that Radium is a solid, or that alpha particles are emitted by Radium. And there can be no reasonable dispute on those points, upon which numerous widely available sources demonstrate broad consensus. E.g., Radium, Merriam-Webster’s Collegiate Dictionary 1026 (11th ed. 2012) (defining “radium” as a “metallic element that ... occurs in combination in minute quantities in minerals (as pitchblende or carnotite), [and] emits alpha particles”); Radium, Britannica Academic, http://academic.eb.com/levels/collegiate/ article/62430 (log-in required) (last visited Dec. 30, 2016) (explaining that Radium is a “silvery white metal” that releases alpha particles).

Next, Williams argues that the district court erred in concluding that the pollution exclusion applies because alpha particles are not, as a matter of law, “pollutants” under the policy. Specifically, Williams argues that there is a question of fact as to whether alpha particles are solid, liquid, gaseous, or thermal, and that the terms “irritants” and “contaminants” are ambiguous and arguably do not apply to alpha particles. But Williams frames the issue too narrowly. The policies exclude coverage for bodily injury or property damage either “arising out of’ the dispersal of pollutants, or which “would not have occurred in whole or part but for” the dispersal of pollutants. It is not disputed the alpha particle activity in Autumn Hills’ water supply resulted directly from the presence of Radium in the water — the alpha particles were emitted by the Radium. Thus, to the extent alpha particles caused the alleged bodily injury or property damage, that damage is excluded from the policy if the term “pollutants,” as defined by the policies, includes either alpha particles or Radium. We conclude that, regardless of whether alpha particles are pollutants, Radium is a pollutant under the policies.

As explained above, Radium is indisputably a solid at room temperature. Thus, we turn to the question of whether Radium is, as a matter of law, an irritant or contaminant. In Williams’ view, the terms “irritant” and “contaminant” are ambiguous, because virtually any substance can be an irritant or contaminant in some contexts, and alpha particle activity is naturally occurring and not always harmful. Thus, Williams argues, we are required to construe these terms against the Insurers and decline to apply the pollution exclusion.

Where a particular term is not defined in an insurance policy, Missouri courts look to the “ordinary meaning of the word, as set forth in the dictionary.” Schmitz, 337 S.W.3d at 708. The dictionary definition of “contaminant” is “something that contaminates.” Merriam-Webster’s Collegiate Dictionary 269 (11th ed. 2012). To “contaminate,” in turn, is defined as “to soil, stain, corrupt, or infect by contact or association,” or “to make unfit for use by the introduction of unwholesome or undesirable elements.” Id.

Missouri courts have held that the term “contaminant” is ambiguous in some circumstances, and unambiguous in others, depending on the purported pollutant and the circumstances of its dispersal. The relevant question is not whether the term “contaminant” “might be found ambiguous regarding some other substance in a different factual setting,” but whether the term is ambiguous as applied to the particular substance in the factual setting at issue. Cas. Indem. Exch. v. City of Sparta, 997 S.W.2d 545, 651 (Mo. Ct. App. 1999); see also United Fire & Cas. Co. v. Titan Contractors Serv., Inc., 751 F.3d 880, 886 n.3 (8th Cir. 2014) (explaining that under Missouri law, the term “pollutant” in an insurance policy provision “may be ambiguous with respect to the factual situation presented by one claim but unambiguous as to another”). For example, in Cincinnati Insurance Company v. German St. Vincent Orphan Association, Inc., a Missouri Court of Appeals held that although there are some circumstances in which it would be ambiguous whether a given substance is a contaminant, the word unambiguously applies to asbestos that was excavated and pulverized into thick clouds of dust that filled a building. 54 S.W.3d 661, 666 (Mo. Ct. App. 2001).

We conclude that in the factual context of this case, Radium is unambiguously a contaminant. Williams may be correct that there are circumstances in which Radium and its emissions might not be harmful. But here, the complaint alleges that illegal levels of Radium were present in the water supply, creating a serious risk to the health of Autumn Hills residents, which required them to relocate or purchase alternative sources of water. Additionally, the complaint in the Original Action itself refers to Radium and its emissions as “radiological contaminants” throughout, and alleges that the levels of Radium in the water exceeded the “Maximum Contaminant Level” set forth by Missouri’s Department of Natural Resources. Thus, in the context of the allegations set forth in the complaint in the Original Action, Radium is unambiguously a contaminant under the ordinary meaning of the word; it both “corrupted” the water “by contact,” and made it “unfit for use.” As such, the pollution exclusion in each policy bars coverage for bodily injury or property damage alleged to have resulted from the presence of Radium or alpha particles in Autumn Hills’ water supply.

ii. Coliform bacteria

Williams next argues that the district court erred in concluding as a matter of law that coliform bacteria are pollutants. As with the Radium and alpha particles, Williams argues first that there is a genuine dispute of fact as to whether coliform bacteria are solid, liquid, gaseous, or thermal, and second that coliform bacteria are not unambiguously contaminants.

First, in Williams’ view, to be a pollutant as defined by the policies, a substance must exist in a purely solid, liquid, gaseous, or thermal form. Williams points out that coliform bacteria are living organisms, and do not fit into any one of those categories. But read as a whole, the definition of “pollutants” in each policy encompasses substances that contain a combination of solid, liquid, gaseous, and thermal elements. The provision lists examples of pollutants including, among other things, “smoke” and “waste.” We take judicial notice of the fact that smoke is a mixture of solid and liquid particles suspended in gas. See Merriam-Webster’s Collegiate Dictionary 1178 (11th ed. 2012) (defining smoke as “the gaseous products of burning materials ... made visible by the presence of small particles of carbon”); Bukowski, Richard W., AccessScience (2014), Smoke, https://doi.org/10.1036/1097-8542.629200 (log-in required) (stating that smoke is a “dispersion of small, solid particles and liquid droplets suspended in a gaseous medium”). Similarly, waste can be a combination of solid and liquid materials, like sewage sludge. Like other living organisms, coliform bacteria is made up of a combination of solid, liquid, gaseous, and thermal elements. Thus, it is a pollutant under the plain language of the policy.

Next, Williams argues that coliform bacteria are not contaminants, arguing that the term is ambiguous, and that it arguably does not apply to coliform bacteria, which occur naturally and are not necessarily harmful in every context. But our reasons for concluding that Radium is a contaminant apply with equal force to coli-form bacteria: The coliform bacteria are alleged to have posed a health risk to Autumn Hills residents, and to have exceeded “contamination levels” set by Missouri’s Department of Natural Resources. Accordingly, we conclude as a matter of law that the pollution exclusion contained in each policy bars coverage for damages resulting from the presence of coliform bacteria in Autumn Hills’ water supply.

b. Failure to build amenities

Williams next contends that the district court erred in concluding as a matter of law that the Insurers had no duty to defend Collier against the class’ claims for negligence and breach of contract based on the allegations that Collier failed to build various promised amenities, including a picnic area, basketball court, and softball diamond, at Autumn Hills.

The district court determined that these allegations did not give rise to claims potentially within the policies’ coverage, because the policies cover only “bodily injury and property damage” resulting from “occurrences.” The Eighth Circuit has previously concluded that Missouri law does not consider breaches of contract to be occurrences. Secura Ins. v. Horizon Plumbing, Inc., 670 F.3d 857, 862-63 (8th Cir. 2012). Accordingly, the district court held that the Insurers had no duty to defend Collier against the breach of contract claim. It further found that the Insurers had no duty to defend the negligence claim premised on Collier’s alleged failure to build promised amenities because the factual allegations sounded in contract, not tort. See McCormack Baron Mgmt. Servs., Inc., 989 S.W.2d at 170-71 (an insurer has a duty to defend where the complaint “alleges facts that give rise to a claim potentially within the policy’s coverage” (emphasis added)); cf. Brand v. Kansas City Gastroenterology & Hepatology, LLC, 414 S.W.3d 546, 553 (Mo. Ct. App. 2013) (concluding that there was no duty to defend where the policy did not cover intentional torts, and the original petition asserted a “negligence” claim premised on allegations of intentional conduct).

Williams does not dispute that none of the insurance policies cover damages resulting from breach of contract. However, she argues that the district court erred in finding that her negligence claim was actually a breach of contract claim. Williams points out that under Missouri law, the same set of facts may give rise to both a breach of contract claim and a negligence claim. See Schreibman v. Zanetti, 909 S.W.2d 692, 701 (Mo. Ct. App. 1995). Here, however, we agree with the district court that Williams has not alleged facts that would support a negligence claim. Rather, all Williams alleges is that Collier promised to build certain amenities, and breached that promise. Thus, the Insurers had no duty to defend Collier on Williams’ breach of contract or negligence claims based on Collier’s failure to build amenities.

2. Duty to indemnify

The district court concluded that because the Insurers had no duty to defend Collier, they likewise had no duty to indemnify Collier. Williams contends that this was an error. She points out that while the duty to defend is determined by examining the complaint, the duty to indemnify is determined by examining the facts ultimately established at trial. See McCormack Baron Mgmt. Servs., Inc, 989 S.W.2d at 173. Thus, in Williams’ view, we should determine whether the Insurers had a duty to indemnify Collier based on the factual findings of the state court in the Original Action.

Under Missouri law, if the allegations of a complaint give rise to a potential claim for coverage, but the facts ultimately proven at trial do not give rise to a claim for coverage, then an insurer will have a duty to defend, but not indemnify, the insured. See id. at 173-74 (concluding that the insurer had a duty to defend based on the allegations of the complaint, but that the court could not determine whether the insurer had a duty to indemnify until after the facts were developed). However, the reverse is not true: Missouri courts have repeatedly held that where an insurer has no duty to defend, it also has no duty to indemnify. E.g., Penn-Am. Ins. Co. v. The Bar, Inc., 201 S.W.3d 91, 98 (Mo. Ct. App. 2006); Am. States Ins. Co. v. Herman C. Kempker Const. Co., 71 S.W.3d 232, 236 (Mo. Ct. App. 2002); Superior Equip. Co. v. Maryland Cas. Co., 986 S.W.2d 477, 484 (Mo. Ct. App. 1998). Accordingly, we conclude that the district court did not err in finding as a matter of law that the Insurers had no duty to indemnify Collier for the judgment in the Original Action.

In sum, because the Insurers had no duty to defend or indemnify Collier for the claims asserted in the Original'Action, the district court did not err in granting judgment on the pleadings to the Insurer.

III. Conclusion

We affirm the judgment of the district court.

      . The Honorable Judge Stephen N. Limbaugh, Jr., United States District Judge for the Eastern District of Missouri.

      . The Honorable Judge Ronnie L. White, United States District Judge for the Eastern District of Missouri.

      . Of course, not all consent judgments are necessarily final judgments. See Ruppert v. Principal Life Ins. Co., 705 F.3d 839, 842 (8th Cir. 2013) (holding that a consent judgment was not final where it incorporated a settlement agreement that permitted the appellant to reinstate his settled claims if he was successful in appealing an earlier adverse ruling).

      . The court declines to address whether Williams is correct that the class would not be required to be certified in the present action. See Zimmermann v. Epstein Becker & Green, P.C., 657 F.3d 80, 85 (1st Cir. 2011) (holding that although the plaintiff class was certified in a previous action, it was required to be certified anew when it brought claims against new defendants whose liability would have to be separately proven). But see Addison, 731 F.3d at 743 ("[The plaintiff] urges us to consider the present suit in a vacuum, arguing that there is no need to 'reconstitute' the class here. On the contrary, the class has been and remains certified pursuant to Illinois law_”).

      . The policy issued by Employers effective March 13, 1999, and the policy issued by Owners effective April 1, 2005, both contain slight variations from the quoted language. Each reads, "Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”

      . Williams' argument focuses on whether the district court properly took judicial notice of the EPA fact sheet itself. But Rule 201 permits courts to take judicial notice only of facts. See Fed. R. Evid. 201; Crawford v. Countrywide Home Loans, Inc., 647 F.3d 642, 649-50 (7th Cir. 2011) (affirming the district court’s refusal to take judicial notice of various documents where the offering party failed to delineate the particular facts to be noticed based on the documents). Thus, the proper inquiry is whether the district court properly took judicial notice of the fact that Radium is a solid that emits alpha particles, not whether the district court properly took judicial notice of the source of that fact — the EPA fact sheet.


source: Caselaw Access Project

author: LOKEN, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant v. Dennis Neil YORGENSEN, Defendant-Appellee
    No. 16-1109
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 23, 2016
    Filed: January 12, 2017

      Counsel who presented argument on behalf of the appellant was Shawn Wehde, AUSA, of Sioux City, IA. The following attorney(s) appeared on the appellant brief; Nathan Wade Nelson, AUSA, of Sioux City, IA.
    Counsel who presented argument on behalf of the appellee was Bradley Ryan Hansen, AFPD, of Sioux City, IA.
    Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
   LOKEN, Circuit Judge.

Charged with conspiracy to distribute and possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, Dennis Yorgensen moved to suppress all evidence obtained as a result of a warrant search of his home, claiming there were false material statements and omissions in the warrant application and requesting a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). After an evidentiary hearing, the district court granted the motion, suppressing physical evidence seized dining the search and post-arrest statements Yorgensen made two days later to an officer from a different law enforcement agency. In this interlocutory appeal, see 18 U.S.C. § 3731, the government argues that the district court erred in suppressing the post-arrest statements. We agree and therefore reverse this portion of the suppression ruling.

I. Factual Background.

At 10:46 p.m. on March 21, 2015, Sac County Deputy Sheriff Jonathan Meyer responded to a noise complaint at unit four of a small apartment complex in Odebolt, Iowa. Meyer parked in an alley on the far side of the complex and approached unit four on foot. He saw a man, later identified as Yorgensen, walk with his dog from in front of unit four to the door, open the door, and tell those inside not to come out as the police were there. Yorgensen quickly shut the door and walked toward Meyer. They met some twenty to twenty-seven feet away from the residence, and Meyer informed Yorgensen of the noise complaint. Yorgensen said his brother was in town, and they were playing music. As the two men talked, Deputy Kristan Erskine arrived as Meyer’s backup and stood nearby. Yorgensen agreed to keep the noise down, and the cordial encounter ended in five or ten minutes.

As the officers were leaving, Meyer told Erskine he had smelled the odor of marijuana. Erskine said she had not. The two deputies drove separately to the Odebolt Fire Department, where Erskine called their superior officer, Captain Brian Er-ritt. She explained that Meyer had smelled marijuana during the call but Erskine had not and asked if Erritt believed that was enough probable cause for a search warrant. Erritt instructed the officers to apply for a warrant to search unit four.

Erskine and Meyer then drafted an application for a warrant to search unit four for “Drug Paraphernalia, Controlled Substances (marijuana/methamphetamine) and any large amounts of currency located therein.” The application included a probable cause affidavit'signed by Meyer. The affidavit recited that Meyer had been a full time police officer since September 2008 and knew what marijuana smells like from participating in drug investigations and seizures. Meyer then averred:

I arrived on scene at approximately 2246hrs. When pulling up to this apartment complex I observed a male subject standing outside with his dog. When I exited my squad car I observed the male subject enter the residence and re-exit the residence closing the front door. When making contact with the male subject tvho was identified as Dennis Yorgensen, I could smell a strong odor of marijuana come from inside the residence and off Mr. Yorgensen.
The Sac County Sheriffs Office has had several complaints of a lot of traffic coming and going from this apartment complex. The Sac County Sheriffs Office has also ... had a father call in and advise that his daughter was smoking methamphetamine with Dennis that lives at [the complex]. There was an incident back in January w[h]ere Jordan Brun-ning did an home invasion on this residence for drug reasons.
Dennis Yorgensen ... rents apartment #4.
Mr. Yorgensen has previous history of trafficking illegal drugs and possession of controlled substances.

The italicized sentence was the primary focus of Yorgensen’s motion to suppress evidence obtained during and after the warrant search.

A Sac County Magistrate Judge issued the warrant at 1:48 a.m. on March 22. Erritt, Meyer, Erskine, and another deputy executed the warrant at 8:30 a.m. that morning. They read the warrant to Yor-gensen, and he then showed them where they would find marijuana and methamphetamine paraphernalia. Methamphetamine, marijuana, drug paraphernalia, and more than $2700 in cash were discovered during the search. Yorgensen was arrested and detained at the Sac County Jail.

On March 24, Captain Erritt called Special Agent Robert Jones of the Iowa Division of Narcotics Enforcement (“DNE”), who was working on a federal drug trafficking investigation in which Yorgensen was a “person of interest.” Erritt asked if Jones wanted to interview Yorgensen. Jones declined. Later that day, Erritt called Jones again and said that Yorgensen had asked to speak with Jones. Jones went to the Sac County Jail and interviewed Yorgensen, who expressly waived his Miranda rights after making ambiguous statements about whether he needed a lawyer. In the lengthy video-recorded interview, Yorgensen questioned Jones about the federal investigation, naming individuals Yorgensen believed had been talking to Jones. Jones advised Yorgensen, “I’m going to be seeking a federal indictment on you” for methamphetamine distribution and conspiracy, and called the case a “slam dunk.” Yorgensen agreed, considering “what just happened.” His incriminating statements are the subject of this appeal.

II. The Suppression Proceedings.

Following his indictment, Yorgen-sen moved to suppress the evidence seized during the warrant search of unit four and all evidence derived from that unlawful search, including his statements to Special Agent Jones. He requested a Franks hearing, arguing that Meyer’s affidavit supporting the warrant application contained deliberately false or recklessly untrue statements and omissions. Under Franks,

if the government intentionally includes material false statements in its warrant affidavits, or includes material false statements with that reckless disregard for the truth that is the legal equivalent of intentional falsehood, a suppression court must set aside those statements and then review the remaining portions of the affidavits to see if what remains is sufficient to establish probable cause.

United States v. Ozar, 50 F.3d 1440, 1443 (8th Cir.) (quotation omitted), cert. denied, 516 U.S. 871, 116 S.Ct. 193, 133 L.Ed.2d 128 (1995). At the hearing, Meyer, Ers-kine, and Jones testified. Yorgensen did not testify but submitted substantial evidence that Meyer, standing some twenty-five feet from the front door of unit four, could not have smelled marijuana coming “from inside the residence” after Yorgen-sen closed the door, given the wind and weather conditions that night.

The magistrate judge found that, while “Meyer smelled marijuana from some source ... the evidence does not support Meyer’s statement in the affidavit that he was able to detect that smell from two different sources,” the “briefly-opened apartment door” and Yorgensen’s person when they came in contact. Accordingly, the highly material, above-italicized sentence in Meyer’s affidavit “was untrue” and was made with reckless disregard for the truth, making the warrant invalid and requiring suppression of all evidence obtained directly or indirectly from the warrant. The district court overruled the government’s objections and accepted these findings and conclusions, which the government does not challenge on appeal.

Turning to Yorgensen’s incriminating statements to Special Agent Jones two days after the warrant search and arrest, the magistrate judge suppressed the statements, concluding they were not admissible under the “attenuation” doctrine of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), because (i) Yorgensen’s arrest as well as the search warrant was unlawful; (ii) the taint of this unlawful conduct did not dissipate during Yorgensen’s two days of post-arrest custody; (iii) there were no relevant intervening circumstances; and (iv) Meyer’s reckless disregard for the truth in his warrant affidavit was flagrant misconduct. The district court accepted this analysis and suppressed the statements as well as physical evidence seized during the warrant search. The government appeals the suppression of Yorgensen’s statements to Agent Jones. We review de novo whether statements obtained through a causal chain that began with a Fourth Amendment violation should be suppressed as indirect fruit of that illegality. United States v. Simpson, 439 F.3d 490, 495 (8th Cir. 2006).

III. Discussion.

The exclusionary rule applies to statements that result from a Fourth Amendment violation, but a statement is not “fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of police.” Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The question is whether police obtained the statement “by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. at 488, 83 S.Ct. 407 (quotation omitted). “[Ejxclusion may not be premised on the mere fact that a constitutional violation was a ‘but-for’ cause of obtaining evidence.” Hudson v, Michigan, 547 U.S. 586, 592, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).

A.

The first question is whether there was a sufficient “factual nexus between the constitutional violation” — Meyer’s recklessly untrue warrant affidavit — “and the challenged evidence” — Yorgensen’s statements to Agent Jones two days later. United States v. Riesselman, 646 F.3d 1072, 1079 (8th Cir. 2011), cert. denied, 565 U.S. 1136, 132 S.Ct. 1065, 181 L.Ed.2d 780 (2012). The affidavit resulted in a warrant search that discovered evidence of drug trafficking, resulting in Yorgensen’s arrest. There would be no factual nexus if he was in custody when interviewed by Agent Jones because the officers had probable cause to arrest him before entering his home, regardless whether Meyer’s affidavit contained an untrue statement in presenting facts which, if accurately described, would have provided the magistrate with probable cause to issue a warrant.

This chain of events is different from, but obviously analogous to, the decision in New York v. Harris, 495 U.S. 14, 21, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), where the Court held that, “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton [v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ].” In Harris, the Court declined to apply the attenuation analysis in Brown, where there was no probable cause to search or arrest. Instead, the Court ruled that “[n]othing in the reasoning of [Pay-ton] suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house.” Harris, 495 U.S. at 18, 110 S.Ct. 1640.

The district court committed plain error in not considering whether this principle applies and eliminates any factual nexus between Meyer’s faulty warrant affidavit and Yorgensen’s statements to Agent Jones. Yorgensen’s brief on appeal cited Payton but failed to cite any case where the exclusionary rule has been applied to statements made following an arrest based upon probable cause obtained in executing a facially valid search warrant subsequently invalidated after a Franks hearing. See United States v. Ladum, 141 F.3d 1328, 1336-37 (9th Cir.), cert. denied, 525 U.S. 1021, 119 S.Ct. 549, 142 L.Ed.2d 457 (1998); Lingo v. City of Salem, 832 F.3d 953, 960 (9th Cir. 2016) (“nothing within the fruit-of-the-poisonous-tree doctrine suggests that an officer must ignore facts that would give him probable cause to arrest a person merely because those facts were procured through an unlawful search”).

B.

The second question is whether the attenuation doctrine applies. In Brown v. Illinois, the Supreme Court discussed and applied an exception to the exclusionary rule called “the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance.” Utah v. Strieff, — U.S. —, 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 (2016). In Brown, the Court held that, to determine whether the causal connection between incriminating statements and an arrest or search that violated the Fourth Amendment has been broken, Miranda warnings — which protect Fifth Amendment rights — are relevant but other factors must be considered — the “temporal proximity” of the unconstitutional conduct and the statements, the “presence of intervening circumstances,” and “particularly, the purpose and flagrancy of the official misconduct.” 422 U.S. at 603-04, 95 S.Ct. 2254; see Riesselman, 646 F.3d at 1080. Here, we conclude that all four factors weigh in favor of not suppressing statements Yorgensen made during Special Agent Jones’s March 24 interview.

1. Miranda Warnings. At the start of the interview, Yorgensen was eager to elicit information from Agent Jones about the federal investigation. But Jones carefully gave Yorgensen Miranda warnings before continuing the discussion, and Yorgensen signed a written waiver of his rights. Providing Miranda warnings is an “important, although not dispositive,” factor that weighs against suppression of Yor-gensen’s subsequent statements. Rawlings v. Kentucky, 448 U.S. 98, 107, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). “[P]ersons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality.” Id. at 106, 100 S.Ct. 2556, quoting Brown, 422 U.S. at 603, 95 S.Ct. 2254.

2. Temporal Proximity. More than two days passed between Yoi-gensen’s arrest and his interview with Agent Jones. The district court erred in concluding this period weighed against attenuation because Yorgensen spent the two days in custody. See United States v. Hernandez-Hernandez, 384 F.3d 562, 565 (8th Cir. 2004) (defendant who spent five days in unlawful detention before his confession had “plenty of time to contemplate his situation and reconsider his decision to confess”); accord United States v. Vega-Rico, 417 F.3d 976, 980 (8th Cir. 2005) (four days), cert. denied, 547 U.S. 1073, 126 S.Ct. 1770, 164 L.Ed.2d 521 (2006). These decisions are especially relevant here — Yorgensen was in custody because substantial evidence of drug trafficking was found in a facially valid warrant search of his home; Yorgensen knew he was a suspect in a pre-existing federal investigation that Jones was conducting; and Jones testified without contradiction that he was told by Erritt that Yorgensen had asked to be interviewed. This factor does not weigh in favor of suppression.

3. Intervening Circumstances. Several intervening circumstances weigh against suppression. First, Yorgensen spoke with an “agent from a separate law enforcement agency, and neither agent nor agency had any involvement in the initial Fourth Amendment violation.” Vega-Rico, 417 F.3d at 980; see Hernandez-Hernandez, 384 F.3d at 566. Agent Jones, who had nothing to do with the invalid warrant search and Yorgensen’s arrest, told Yor-gensen, “I’m going to be seeking a federal indictment on you.” This gave Yorgensen “opportunities to pause and reflect, to de-dine consent after deliberate consideration if [he] wished.” United States v. Brandwein, 796 F.3d 980, 986 (8th Cir. 2015) (quotation omitted), cert. denied, — U.S. —, 136 S.Ct. 1214, 194 L.Ed.2d 216 (2016). Though Erritt was present during the interview, he had authorized the warrant application but had not reviewed Deputy Meyer’s inaccurate warrant affidavit.

The interview video confirms that Yor-gensen understood the difference between the federal investigation and the warrant search of his home. At the outset of the discussion, Yorgensen demanded to know about the possible federal charges. Jones and Yorgensen then focused almost the entire discussion on the federal investigation. At one point, Yorgensen refused to give Jones the name of the person who supplied the methamphetamine seized during the warrant search, explaining, “I'm not going to give you a person’s name who’s not in this thing, who doesn’t have anything to do with it really. ... If that was pertinent, I would tell ya.” As in Rawl-ings, the two-sided nature of the interview “weighs heavily in favor of a finding that [Yorgensen] acted of free will unaffected by the initial illegality.” 448 U.S. at 108, 100 S.Ct. 2556, quoting Brown, 422 U.S. at 603, 95 S.Ct. 2254.

4. Purpose and Flagrancy of Misconduct. “The Supreme Court places a particular emphasis on any ‘purpose and flagrancy of the official misconduct’ in effecting the initial illegal entry.” Brandwein, 796 F.3d at 985, quoting Brown, 422 U.S. at 603-04, 95 S.Ct. 2254. “Application of the exclusionary rule ... does not serve [its] deterrent function when the police action, although erroneous, was not undertaken in an effort to benefit the police at the expense of the suspect’s protected rights.” United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006) (quotation omitted). “An unreasonable mistake alone is not sufficient to establish flagrant misconduct.” United States v. Herrera-Gonzalez, 474 F.3d 1105, 1113 (8th Cir. 2007); see Strieff, 136 S.Ct. at 2063.

In this case, the only misconduct was Meyer drafting a probable cause affidavit that included one untrue statement — that he had smelled marijuana odor coming directly from unit four, rather than smelling a dissipating odor of marijuana on or around Yorgensen that he reasonably inferred came from unit four. The district court found that the error was unintentional. There was no evidence Meyer knew his affidavit was constitutionally inadequate; indeed, his testimony was firmly to the contrary. The magistrate judge noted that Meyer “had little experience in preparing search warrant applications,” but that does not support a finding of purposeful or flagrant misconduct. We reject the district court’s conclusion that, because Meyer was guilty of a recklessly untrue statement, his misconduct was “purposeful or flagrant.” See Strieff, 136 S.Ct. at 2064 (“For the violation to be flagrant, more severe police misconduct is required than the mere absence of proper cause for the seizure.”).

In Brown, police acknowledged that they broke into Brown’s apartment and arrested him without probable cause for the purpose of investigating the murder to which he later confessed. The “impropriety of the arrest was obvious” because officers arrested Brown for questioning in a manner “calculated to cause surprise, fright, and confusion.” 422 U.S. at 605, 95 S.Ct. 2254. Similarly, in Taylor v. Alabama, 457 U.S. 687, 691, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982), a post-arrest confession was suppressed because “[p]etitioner was arrested without probable cause in the hope that something would turn up, and he confessed shortly thereafter without any meaningful intervening event.” Though ob-taming a search warrant is investigative conduct, Deputy Meyer’s unintentional error in describing for an issuing magistrate what Meyer believed to be probable cause is a far cry from the purposeful and flagrant misconduct that weighed in favor of suppression in Brown and its progeny.

For the foregoing reasons, that portion of the district court’s Order dated December 7, 2015 suppressing Yorgensen’s post-arrest statements is reversed. The case is remanded for further proceedings not inconsistent with this opinion.

      . We accept but do not endorse the district court’s Franks ruling for purposes of this appeal. Meyer testified that he first smelled marijuana “when [Yorgensen] had shut the door and he was walking toward me,” that the odor was stronger "when he was at the residence,” and that the odor dissipated "as we stood out there and talked.” A warrant affidavit is made with reckless disregard for the truth only if, "viewing all of the evidence, the affiant must have entertained serious doubts as to the truth of his statements.” United States v, Finley, 612 F.3d 998, 1002 (8th Cir.) (quotation omitted), cert. denied, 562 U.S. 1020, 131 S.Ct. 547, 178 L.Ed.2d 401 (2010). Here, the material probable cause issue was whether Meyer had reason to believe the noisy occupants of unit four were using marijuana in the apartment. After Meyer credibly testified that he smelled marijuana, Yorgen-sen’s ex post evidence that it was unlikely Meyer detected odor from the residence was hardly a showing of reckless disregard for the truth of his probable cause showing. See United States v. Mueller, 902 F,2d 336, 343 (5th Cir. 1990). The district court excised the entire sentence, when the only false statement was that odor was coming "from the residence,” and ignored, for probable cause purposes, whether the dissipating odor on Yorgensen’s person created a reasonable inference he was using marijuana in unit four. Thus, the district court’s Franks ruling should be given no precedential weight in future cases.

      . The district court rejected Yorgensen's alternative contention that his statements to Agent Jones should be suppressed because they were made after he invoked his right to counsel. Yorgensen did not cross appeal that rul-tag.


text:
    Travis Z. GONZALES, an individual, Plaintiff-Appellee, v. CARMAX AUTO SUPERSTORES, LLC, a Virginia Limited Liability Company; Santander Consumer USA, Inc., an Illinois Corporation; Safeco Insurance Company of America, a New Hampshire Corporation, Defendants-Appellants. Travis Z. Gonzales, an individual, Plaintiff-Appellant, v. CarMax Auto Superstores, LLC, a Virginia Limited Liability Company; Santander Consumer USA, Inc., an Illinois Corporation; Safeco Insurance Company of America, a New Hampshire Corporation, Defendants-Appellees.
    No. 14-56305, No. 14-56842
    United States Court of Appeals, Ninth Circuit.
    Filed January 6, 2017

      Hallen D. Rosner (argued), Rosner, Barry & Babbitt, LLP, San Diego, California, for Plaintiff-Appellant/Cross-Appellee.
    Kurt A. Schlichter (argued), Steven C. Shonack, Jamie L. Keeton, Schlichter & Shonack, LLP, El Segundo, California, for Defendants-Appellees/Cross-Appellants.
    Before: STEPHEN REINHARDT, ALEX KOZINSKI, and KIM McLANE WARDLAW, Circuit Judges.
   ORDER

Travis Z. Gonzales seeks attorney’s fees under California’s Consumer Legal Remedies Act (“CLRA”) in connection with these two appeals, which were consolidated for purposes of oral argument and decision. In Case No. 14-56842, we granted summary judgment to Gonzales on his CLRA and Unfair Competition Law claims. In Case No. 14-56305, we affirmed the district court’s denial of attorney’s fees to CarMax under Section 1780(e) of the CLRA.

Gonzales’s application for appellate attorney’s fees presents the following issues: (1) whether Gonzales is barred from collecting attorney’s fees because CarMax proffered an appropriate correction pursuant to Section 1782 of the CLRA; (2) whether Gonzales is a “prevailing plaintiff’ under Section 1780(e) of the CLRA; (3) whether Gonzales’s attorney’s fee requests are reasonable.

We conclude that Gonzales is not barred from recovering attorney’s fees under Section 1782 of the CLRA. Consequently, we remand to the district court to determine in the first instance whether Gonzales qualifies as a prevailing plaintiff under the CLRA and the reasonableness of the fees he has requested.

1. CarMax’s correction offer, whether it was appropriate or not, does not bar Gonzales from recovering attorney’s fees.

Under California Civil Code § 1782(b), “no action for damages may be maintained under Section 1780 [of the CLRA] if an appropriate correction, repair, replacement, or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of the notice.” CarMax argues that it made a timely and appropriate CLRA correction offer, which Gonzales rejected. Therefore, according to CarMax, Gonzales is barred from recovering any fees for continuing to pursue his claims. We reject CarMax’s argument.

The California Court of Appeal has “interpreted section 1782 to create a requirement analogous to exhaustion of administrative remedies” and therefore has concluded that “[attorney fees are not recoverable in actions for damages under the CLRA unless the response to the notice letter is not an appropriate one or no response is forthcoming within the statutory time period.” Benson v. S. Cal. Auto Sales Inc., 239 Cal.App.4th 1198, 192 Cal.Rptr.3d 67, 77, review denied (2015) (emphasis added). The Benson court, however, explicitly declined to “address the requirements for an attorney fee award based on a request for injunctive relief.” Id. at 77-78.

In addition to actual and punitive damages, the CLRA explicitly authorizes injunctive relief, restitution, and “[a]ny other relief that the court deems proper.” Cal. Civ. Code § 1780(a). In the present case, Gonzales’ Second Amended Complaint did “not seek damages of any kind” on his CLRA claim, but rather sought only an “injunction prohibiting acts or practices which violate the CLRA.” As the California Supreme Court noted, “section 1782, subdivision (d) contemplates the filing of a CLRA action for injunctive relief alone, and such actions are not subject to the requirements of subdivisions (a) and (b) of notice and allowance for voluntary correction,” which apply only to an action for damages. Meyer v. Sprint Spectrum L.P., 45 Cal.4th 634, 88 Cal.Rptr.3d 859, 200 P.3d 295, 301 (2009). Because Gonzales sought only injunctive relief for violation of the CLRA, CarMax’s correction offer does not bar Gonzales from recovering attorney’s fees.

2. The district court should address whether Gonzales is a prevailing plaintiff in the first instance

Under the CLRA, “[t]he court shall award court costs and attorney’s fees to a prevailing plaintiff in litigation.” Cal. Civ. Code § 1780(e). Because the CLRA does not define the term “prevailing plaintiff,” California courts have “adopt[ed] a pragmatic approach, determining prevailing party status based on which party succeeded on a practical level.” Graciano v. Robinson Ford Sales, Inc., 144 Cal.App.4th 140, 50 Cal.Rptr.3d 273, 281-82 (2006). “Under that approach, the court exercises its discretion to determine the prevailing party by analyzing which party realized its litigation objectives.” Id. at 282 (citation and quotation marks omitted); Parkinson v. Hyundai Motor Am., 796 F.Supp.2d 1160, 1169 (C.D. Cal. 2010) (“A plaintiff is the prevailing party if he or she obtained a ‘net monetary recovery’ or ‘realized its litigation objectives,’ including pursuant to a settlement agreement.”) (quoting Kim v. Euromotors W./The Auto Gallery, 149 Cal.App.4th 170, 56 Cal.Rptr.3d 780, 786 (2007)).

The California Court of Appeal has also instructed, however, that “[determinations of whether [a plaintiff] is a ‘prevailing plaintiff and the amount to be awarded, if any, are to be made, in the first instance, by the trial court in the sound exercise of its discretion.” Kim, 56 Cal.Rptr.3d at 788. Here, as CarMax argues, although Gonzales was awarded summary judgment on appeal, our opinion did not order a particular remedy — the district court must still enter a final judgment on remand. Consequently, although it is relatively clear that Gonzales “achieved his litigation objectives” on appeal, the district court should, after fashioning a remedy in conformity with our opinion, determine in the first instance whether Gonzales qualifies as a prevailing plaintiff under Section 1780(e) of the CLRA and the reasonableness of Gonzales’ requested attorney’s fees in both case No. 14-56842 and 14-56305.

IT IS SO ORDERED.

      . As explained in our original opinion, Car-Max violated Section 11713.18(a)(6) of the California Vehicle Code, and violations of that provision are "actionable under the Consumer Legal Remedies Act.” Cal. Veh. Code § 11713.18(b); see also Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644, 649 (9th Cir. 2016).

      . We are not presented here with the question of a plaintiff who seeks both injunctive relief and damages under the CLRA, and accordingly express no view on that issue.


author: OWENS, Circuit Judge:

text:
    Charles Edward BYRD, Plaintiff-Appellant, v. MARICOPA COUNTY BOARD OF SUPERVISORS, John/Jane Does 1-100; Joseph M. Arpaio, named as: Maricopa County Sheriff Joe Arpaio; Maricopa County Sheriffs Office, named as Maricopa County Sheriffs Department, Defendants-Appellees.
    No. 15-16282
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 14, 2016 San Francisco, California
    Filed January 6, 2017

      Helen Andrews and Cory Batza (argued), Certified Law Students; Jeremy B. Rosen, Supervising Attorney, and Mark A. Kressel, Horvitz & Levy LLP, Burbank, California; for Plaintiffs-Appellants.
    Joseph J. Branco (argued), Anne C. Longo, and Thomas P. Liddy, Deputy County Attorneys; William G. Montgomery, County Attorney; Civil Services Division, Maricopa County Attorney’s Office, Phoenix, Arizona; for Defendants-Appel-lees.
    Before: STEPHEN REINHARDT and JOHN B. OWENS, Circuit Judges, and SALVADOR MENDOZA, JR., District Judge.

       The Honorable Salvador Mendoza, Jr., United States District Judge for the Eastern District of Washington, sitting by designation.

   OPINION

OWENS, Circuit Judge:

Charles Edward Byrd, an Arizona state prisoner and former pretrial detainee, appeals from the district court’s sua sponte dismissal under 28 U.S.C. § 1915A of his 42 U.S.C. § 1983 action challenging defendants Maricopa County Sheriffs Department, Maricopa County Board of Supervisors, and Sheriff Joe Arpaio’s alleged policy of allowing female guards to observe daily, from four to five feet away, male pretrial detainees showering and using the bathroom. The district court dismissed Byrd’s pro se complaint without requiring a response because it thought that Ninth Circuit precedent foreclosed his claims. This was incorrect. Because the district court should have required defendants to file an answer to Byrd’s complaint, rather than immediately dismissing it under section 1915A, we reverse and remand for further proceedings.

I. Background

This is not the first time Byrd has challenged defendants’ policies for pretrial detainees. See Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1147 (9th Cir. 2011) (en banc) (agreeing with Byrd and holding that a cross-gender strip search in the absence of an emergency violates a pretrial detainee’s Fourth Amendment rights). This time, he alleges in his handwritten pro se complaint (technically his second amended complaint) that defendants’ policy of having female guards regularly view his bathroom and shower use from four to five feet away violates his Fourth and Fourteenth Amendment rights, and causes him severe emotional harm due to his own history of abuse. He also alleges that this policy conflicts with defendants’ policy that prohibits female guards from strip searching male prisoners in non-emergency situations.

The district court sua sponte dismissed the complaint because “[t]he policy to which Plaintiff objects is precisely the type of cross-gender supervision that has long been held constitutional in the Ninth Circuit.” Because the district court dismissed the complaint under section 1915A, we do not have defendants’ side of the story, such as any counterbalancing security or personnel management issues to consider.

II. Standard of Review

We review de novo a district court’s sua sponte section 1915A dismissal of a complaint, construing the pro se complaint liberally and taking all the allegations of material fact as true and in the light most favorable to Byrd. Ramirez v. Galaza, 334 F.3d 850, 853-54 (9th Cir. 2003). We review the denial of leave to amend for an abuse of discretion. Id. at 854.

III. Discussion

A. Fourth Amendment Claim

Byrd alleges that defendants’ policy violated his Fourth Amendment right to be free from unreasonable searches. To determine if he is correct, we consider “(1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted.” Byrd, 629 F.3d at 1141 (quoting Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (internal quotations omitted)). Taking Byrd’s allegations as true, Byrd has sufficiently alleged facts to survive section 1915A dismissal.

First, while the observation occurred in prison, where there are limited privacy rights, see Hudson v. Palmer, 468 U.S. 517, 527, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), Byrd’s status as a pretrial detainee suggests that he may have had greater rights than convicted prisoners. See Stone v. City & Cty. of S.F., 968 F.2d 850, 857 n.10 (9th Cir. 1992) (noting that “pretrial detainees ... possess greater constitutional rights than prisoners”). That alone is enough to distinguish Byrd’s allegations from precedent concerning convicted prisoners, which the district court thought foreclosed Byrd’s claims.

Second, even if Byrd were a convicted prisoner, Byrd’s allegations survive section 1915A dismissal. Assuming that the female guards could view male pretrial detainees while showering and using the toilet frequently and up close, the scope and manner of the intrusions were far broader than those our court previously has approved. In Grummett v. Rushen, we upheld cross-gender surveillance of showers specifically because “such actual viewing of the inmates is infrequent and irregular.” 779 F.2d 491, 495 (9th Cir. 1985). Similarly, in Michenfelder v. Sumner, we held that female guards observing male prisoner body cavity searches from a control booth that provided limited view of the searches, and female guards sometimes conducting male prisoner shower duty, were reasonable because the female guards were “not routinely present for strip searches” and observation from video monitors “would provide at most an indistinct, limited view.” 860 F.2d 328, 334 (9th Cir. 1988). The current case is, at this early stage, distinguishable from Grummett and Michenfelder because the observation was allegedly not infrequent, irregular, or from a distance, but frequent and just a few feet away. The district court erred in reading our case law to preclude Byrd’s claim.

Defendants argue that this policy is justified to ensure the institutional security of the prison and equal employment opportunities for female guards. But at this early stage, after a sua sponte dismissal of the complaint, we have no evidence supporting defendants’ justifications for regular cross-gender observation in showers and toilets. Further, Byrd alleges that the challenged monitoring violates the prison’s policy prohibiting guards from conducting cross-gender strip searches of inmates and defining a strip search as “the visual scan of an inmate’s body after all clothing has been removed.” If this is true, it undermines the prison’s justifications for allowing female guards to view male pretrial detainees in showers and toilets frequently and up close.

Defendants’ reliance on out-of-circuit authority actually illustrates why the dismissal here was premature. For example, in Timm v. Gunter, the Eighth Circuit upheld female guard monitoring of male inmates showering. 917 F.2d 1093 (8th Cir. 1990). In that case, the observation of prisoners (not pretrial detainees) was neither constant nor intrusive, but rather “through small, steam- and water-covered windows positioned in such a way as to hinder the guard’s attempt to see every showering inmate’s body in full.” Id. at 1101. And in Oliver v. Scott, the Fifth Circuit upheld a cross-sex surveillance policy at the summary judgment stage after reviewing evidence that the inmates in question had “convictions for more severe and violent crimes,” something the prisoner did not contest. 276 F.3d 736, 746 (5th Cir. 2002).

Here, we have no evidence that the pretrial detainees were especially violent. We do not have anything in the record to suggest why this intrusive policy was necessary for convicted prisoners, much less pretrial detainees. For all we know at this point, this policy could be in place not for security reasons, but merely to humiliate pretrial detainees. Accordingly, Byrd’s Fourth Amendment claim is “sufficient to warrant ordering [defendants] to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113,1116 (9th Cir. 2012).

B. Fourteenth Amendment Right to Bodily Privacy Claim

Byrd also alleges that defendants’ policy violated his Fourteenth Amendment Due Process right to bodily privacy. “[Prisoners retain a limited right to bodily privacy.” Michenfelder, 860 F.2d at 333. As a pretrial detainee, Byrd had at least the same right to bodily privacy as a prisoner. See Stone, 968 F.2d at 857 n.10. As described below, our analysis largely mirrors the above Fourth Amendment discussion.

“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89,107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). To determine if a prison regulation can survive a constitutional challenge, we consider whether (1) there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) “there are alternative means of exercising the right”; (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources”; and (4) there is an “absence of ready alternatives!.]” Id. at 89-90, 107 S.Ct. 2254. (internal quotations and citations omitted).

Byrd alleges that the challenged observation violates the prison’s own policy of prohibiting cross-gender visual strip searches of inmates. This suggests that there may be no “valid, rational connection” between the observation and a legitimate prison interest. While Byrd does not allege any facts about the impact that changing the prison’s policy of allowing female guards to observe male inmates while showering and using the bathroom would have on the rest of the prison, he cannot know these facts at this early stage of his case, nor is that his concern. Without a response from the defendants, we cannot adequately assess the Turner factors.

We also have held that similar conduct involving a male parole officer observing a female parolee while she used the toilet, when his view was “neither obscured nor distant,” violated her clearly established right to bodily privacy. Sepulveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir. 1992). Sepulveda strongly suggests that dismissal at this stage was premature. Accordingly, the allegations of Byrd’s bodily privacy claim, taken as true, warrant an answer. Wilhelm, 680 F.3d at 1116.

C. Fourteenth Amendment Cruel and Unusual Punishment Claim

Finally, Byrd alleges that defendants’ policy violated his Fourteenth Amendment Due Process right to be free from cruel and unusual punishment. Prison officials may be liable for cruel and unusual punishment if they “acted with deliberate indifference to a substantial risk of serious harm.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (internal quotations omitted).

Byrd alleges that he filed five grievances to alert prison officials that he felt uncomfortable being observed by female guards, particularly because of his past sexual abuse, to no avail. These facts sufficiently allege for section 1915A purposes that defendants were deliberately indifferent to Byrd’s substantial risk of serious harm.

Byrd also must show that a prison condition is not “reasonably related to a legitimate governmental objective” for it to be unlawful. Bell, 441 U.S. at 539, 99 S.Ct. 1861. Defendants repeat that the policy of allowing female guards to observe male prisoners while showering and performing bodily functions serves the prison’s interests in institutional security and equal employment opportunities. But as Byrd points out, the prison’s strip search policy potentially bans this type of observation. And in any case, we have no evidence to support defendants’ security and equal opportunity goals because of the section 1915A dismissal. Therefore, Byrd’s allegations for his cruel and unusual punishment claim, taken as true, are “sufficient to meet the low threshold for proceeding past the screening stage.” Wilhelm, 680 F,3d at 1123.

IV. Conclusion

It may be that the prison’s up close and personal policy of female guards observing male pretrial detainees is necessary to ensure security and provide equal work opportunities in the prison. See, e.g., Michenfelder, 860 F.2d at 334; Grummett, 779 F.2d at 496. But such considerations and their legal effect are just conjecture at this point. And conjecture is not enough to dismiss a complaint under section 1915A. Defendants should respond to Byrd’s lawsuit.

Finally, we remand with instructions that the district court appoint counsel to represent Byrd. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (“[A] court may under ‘exceptional circumstances’ appoint counsel for indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).”). Exceptional circumstances exist in this ease as evidenced by Byrd’s limited ability to articulate his claims pro se, the complexity of the legal issues involved, and the possible merit of his claims.

REVERSED and REMANDED.

      . The second factor — alternative means of exercising the right at issue — is not relevant here because Byrd is seeking to protect his right to privacy, which necessarily entails addressing the prison policy that allegedly violates his rights. See Michenfelder, 860 F.2d at 331 n.l (stating that the second Turner factor is much more meaningful in the First Amendment context, than in the Fourth or Eighth, "where the right is to be free from a particular wrong”).

      . The Fourteenth Amendment, and not the Eighth Amendment, governs cruel and unusual punishment claims of pretrial detainees. Bell, 441 U.S. at 535 n.16, 99 S.Ct. 1861,

      . Byrd argues that he should be allowed to add an Equal Protection claim because female detainees are allegedly not subjected to cross-gender observation in showers and toilets, while male detainees are. On remand, the district court should consider whether to grant Byrd leave to amend.