NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No . 16

- 3602

_______________ WILNICK DORVAL , Appellant

v. MOE’S FRESH MARKET; WALLIE HAMED

_______________ On Appeal from the District Court of the Virgin Islands ( 3 : 16

- c v
- 000 61 ) District Judge: T he H onorable Curtis V. Gómez

_______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

May 5, 2017
Before: GREENAWAY , JR. , SHWARTZ , and FU E NTES, Circuit Judge s

( Opinion Filed: August 9, 2017 )

_______________ OPINION 

_________ FUENTES, Circuit Judge The appellant , Wilnick Dorval , brought the pending law suit against his local grocery store and its owner for “prevent[ing] [him] and interfer[ing] w ith [his] attempt to

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

purchase groceries [o]n several occasions because [he] is black,” in violation of federal
and local law

. 1 Shortly after he filed the amended complaint with the District Court,
Dorval moved for a temporary restraining order , preliminar y injunction , and permanent injunction against the defendants

. The District Court denied Dorval’ s motion via an
order , from which he now appeals. Because we find that Dorval cannot demonstrate a reasonable probability of success on the merits , w e will af firm.
I. From October 2015 through April 2016, Dorval was a frequent customer of Moe’s Fresh Market, the only grocery store that was within walking distance of his apartment.

He claims, however, that his shopping experience there was marred by the racia lly discriminatory and harassing behavior of the other patrons and of the staff at the store. For example, he alleges that his neighbors from his apartment complex “follow[] [him] throughout the entire store and deliberately and purposely push or touch[] [him] to irritate and annoy [him].” 2 They would “deliberately and purposely bump[] [him] with a shopping cart;” “ block[] [his] pathway ;” “ refuse[] to move out of the way;” “flick[] and move[] their heads wildly, each time [he] looked

- up [sic] ;” and “lung e [] at the corner of [his] eyes when [he] looked up.” 3 He alleges that despite being witness to this “criminally aggressive and predatory” behavior, 4 the staff at Moe’s never took any action

1 App. 55. The appellant has filed five volumes of appendix i n total. We cite to only the first volume. Dorval’s motions to supplement the record with materials not presented to the District Court are denied. 2 App. 58. 3 Id. 4 App. 57.3

against these individuals who “harass[ed] [him] and interfered wi th [his] ability t o purchase necessary food items.” 5 In fact, Dorval alleges that the employees of the store “engaged in the same harassing behavior” as his neighbors. 6 For example, he alleges that the “employees congregated on the aisles and deliberately and purposely blocked the aisles with boxes and prevent[ed] [him] from going through the aisles;” they “hid behind the aisles and deliberately lunged at the corner of [his] eyes, when [he] looked up;” and that they “purposely and deliberately exaggerated their body movement s and flicked their heads wildly, when [he was] looking.” 7 Dorval claims that he did not observe similar behavior aimed at white patrons. Dorval attempted to take videos of the aforementioned behavior, but he was prevented from doing s o by the defendant owner of the store, and was eventually bann ed from the store altogether for that reason. In contrast, he alleges that the owner never stopped the “white patrons . . . [from] recording [him] in the store.” 8 Three months after his expulsi on, Dorval filed this lawsuit against Moe’s Fresh
Market and its owner. Less than two months after that, he moved for a temporary restraining order , preliminary injunction , and permanent injunction against the defendants to permit him access to the store and to enjoin them from continuing to harass and
intimidate him in the store. Three days later, the District Court denied the motion without an evidentiary hearing

. Dorval timely appealed.

5 App. 59. 6 Id. 7 App. 60. 8 App. 61.4 II. 9

To obtain the extraordinary remedy of a preliminary injunct ion, 10 a p laintiff must demonstrate the following factors : (1) that he has “a reasonable probability of eventual
success” on the merits ; (2) that he “will be irreparably injured” absent injunctive relief ; (3) that the balance of harms favors him; and (4) th at the requested relief is in the public
interest. 11 The first two factors are the “most critical,” and the failure to demonstrate either is fatal to the plaintiff’s request. 12
Here, Dorval is not entitled to a preliminary injunction because he has failed t o
demonstrate a reasonable probability of success on the merits. Dorval brought his claims

9 The District Court ha d jurisdiction over this case under 28 U.S.C. § 1331. We have jurisdiction to hear this appeal under 28 U.S.C. § 1292(a)(1). The District Court in this case denied the Dorval’s motion for temporary restraining order, preliminary injunction, and permanent injunction wi th an order that referred only to the request for a temporary restraining order. See App. 3

- 4. Ordinarily, we do not have jurisdiction to review the denial or grant of a temporary restraining order. Vuitton v. White , 945 F.2d 569, 573 (3d Cir. 1991). H owever, we may “[l]ook beyond terminology to the actual content, purport, and effect of that which may otherwise be described as a temporary restraining order or as a preliminary injunction.” In re Arthur Treacher’s Franchisee Litig ., 689 F.2d 1150, 1155 n.7 (3d Cir. 1982) (quoting Smith v. Grady , 411 F.2d 181, 186 (5th Cir. 1969)). Here, the single order from the District Court appears to have terminated Dorval’s entire motion, which also request ed a preliminary injunction, and there does not appear to b e any further action taken on the preliminary injunction question separately. Consequently, we determine that the District Court’s order denying the temporary restraining order was intended to also deny Dorval’s motion for a preliminary injunction, a ruli ng we review for an abuse of discretion. Bimbo Bakeries USA, Inc. v. Botticella , 613 F.3d 102, 109 (3d Cir. 2010). 10 To the extent that Dorval also appeals the denial of a permanent injunction, that relief is not available to him at this pre

- discovery juncture. See Shields v. Zuccarini , 254 F.3d 476, 482 (3d Cir. 2001) (the moving party must show “actual success on the merits” in order to obtain a permanent injunction). 11 Reilly v. City of Harrisburg , 858 F.3d 173, 176 (3d Cir. 2017). 12 Id. at 179.5

under federal law prohibit ing racial discrimination in places of public accommodation 13 and in the making and enforcement of contracts; 14 and under local law prohibit ing racial
discrimination 15 and for intentional infliction of emotional distress based on racial
discrimination

. Dorval has not demonstrated , based upon the record before us, that he has a reasonable probability of meet ing his burden of proof that the defe ndants treated him differently on the basis of his race. Consequently, we hold that the District Court did not abuse its discretion in denying Dorval’s motion for a preliminary injunction at this
stage

. III. For the foregoing reasons, we will affirm the District Court’s denial of Dorval’s motion for a preliminary injunction

.

13 4 2 U.S.C. § 2000a et seq

. 14 Id. § 1981. 15 10 V.I.C. § 64.