Brian Borenstein v. the Animal Foundation

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 25 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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