NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN BORENSTEIN, 

Plaintiff-Appellant, 

 v. 

LEAD ANIMAL SHELTER ANIMAL 

FOUNDATION; et al., 

Defendants-Appellees.

No. 19-17310 

D.C. No. 

2:19-cv-00985-APG-DJA 

MEMORANDUM*

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.

FILED

JUN 25 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-17310 

Mana, was placed with The Animal Foundation (TAF),1a 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.
3 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.