NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 25 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN BORENSTEIN, No. 19-17310
Plaintiff-Appellant, D.C. No.
2:19-cv-00985-APG-DJA
v.
LEAD ANIMAL SHELTER ANIMAL MEMORANDUM*
FOUNDATION; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted June 10, 2020
San Francisco, California
Before: MILLER and HUNSAKER, Circuit Judges, and RAYES,** District Judge.
Brian Borenstein alleges that while he was hospitalized, his service dog,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
Mana, was placed with The Animal Foundation (TAF),1 a non-profit animal
shelter. After nearly three weeks, TAF made Mana available for adoption and
placed him with a new family. Borenstein claims that TAF violated Title III of the
Americans with Disabilities Act (ADA) by not holding Mana longer so that
Borenstein could reclaim him.2 Borenstein moved the district court for a
preliminary injunction requiring TAF to return Mana to him, which the district
court denied. Borenstein appeals that decision.
We have jurisdiction under 28 U.S.C. § 1292(a)(1). We review the district
court’s decision to deny a preliminary injunction for an abuse of discretion. Planned
Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 911 (9th Cir. 2014). In doing so,
we review legal conclusions de novo and factual findings for clear error. Id. We
affirm.
“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction
1
TAF, which operates Lied Animal Shelter, was incorrectly designated in
Borenstein’s original pro se complaint as “Lead Animal Shelter Animal
Foundation.
2
The operative complaint for purposes of this appeal is Borenstein’s original
complaint, not the First Amended Complaint that he filed while the appeal was
pending. Even when construed liberally, Borenstein’s original complaint alleges
only an ADA claim.
2 19-17310
is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). When a plaintiff does not establish a likelihood of success on the merits, we
need not reach the other Winter factors. See id. The district court correctly
determined that Borenstein was not likely to succeed on the merits of his ADA claim
because his requested relief—a mandatory injunction undoing an alleged past act of
discrimination—is not the type of preventative relief authorized by Title III. See 42
U.S.C. § 2000a-3 (“a civil action for preventative relief, including an application for
a permanent or temporary injunction, restraining order, or other order, may be
instituted by the person aggrieved”); see also Ervine v. Desert View Reg’l Med. Ctr.
Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014). To the extent that Borenstein
seeks a more general injunction requiring TAF to change its placement policies, that
request is not before us in this interlocutory appeal.
AFFIRMED.
3 19-17310