Arnzen v. Palmer - Northern District of Iowa

for permanent relief.” Sierra Club, 645 F.3d at 993 (quoting Winter, 555 U.S. at 32, in
turn quoting Amoco Prod. Co., 480 U.S. at 546 n.12). The Eighth Circuit Court of
Appeals has noted that this “preferred wording” of the standard for success differs
somewhat from the “once familiar” formulation in Dataphase requiring the plaintiff to
show that, “at the very least,” the plaintiff had “established a fair ground for litigation.”
Id. The question is not, however, whether the district court uses the preferred wording,
but whether, in light of the evidence, the district court correctly concludes that the plaintiff
is likely to succeed on at least some of its claims. Id. at 993-94.
If the plaintiffs were not in any type of custody, the monitoring of their bathroom
activities obviously would violate their privacy rights. See United States v. Nerber, 222
F.3d 597, 603 (9th Cir. 2000) (“‘[E]very court considering the issue has noted [that] video
surveillance can result in extraordinarily serious intrusions into personal privacy. . . . If
such intrusions are ever permissible, they must be justified by an extraordinary showing
of need.’” (alteration in original) (quoting United States v. Koyomejian, 970 F.2d 536, 551
(9th Cir. 1992) (en banc) (Kozinski, J., concurring))). On the other hand, the plaintiffs
would have no right to privacy if they were being confined in a prison rather than in a civil
commitment unit. See United States v. Hogan, 539 F.3d 916, 923 (2008) (“[S]ociety is
not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner
might have in his prison cell . . . .” (quoting Hudson v. Palmer, 468 U.S. 517, 526, 104
S. Ct. 3194, 3200 (1984))); see also Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995)
(“[P]rivacy is the thing most surely extinguished by a judgment committing someone to
prison.”). 1 The rights of the plaintiffs here fall somewhere between these two situations.
1 “[A] prison inmate has a far lower expectation of privacy than do most other individuals in our
society,” Goff v. Nix, 83 F.2d 358, 365 (8th Cir. 1986), and retains “very narrow zones of privacy.” Hill
v. McKinley, 311 F.3d 899, 905 (8th Cir. 2002). But see Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir.
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