                                                                 NOT PRECEDENTIAL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-cv-00061)
                     District Judge: The Honorable Curtis V. Gómez
                                    _______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    May 5, 2017

       Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges

                             (Opinion Filed: August 9, 2017)
                                   _______________

                                        OPINION
                                        _________
FUENTES, Circuit Judge

       The appellant, Wilnick Dorval, brought the pending lawsuit against his local

grocery store and its owner for “prevent[ing] [him] and interfer[ing] with [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.
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, preliminary 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, we will affirm.

                                             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 racially

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 “lunge[] 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 in 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.
                                             2
against these individuals who “harass[ed] [him] and interfered with [his] ability to

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 movements 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 so by the defendant owner of the store, and was

eventually banned 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 expulsion, 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.
                                              3
                                                II.9

       To obtain the extraordinary remedy of a preliminary injunction,10 a plaintiff 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) that 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 to

demonstrate a reasonable probability of success on the merits. Dorval brought his claims



9
  The District Court had 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 with 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). However, 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 requested a preliminary injunction, and there does not appear to be
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 ruling 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.
                                                 4
under federal law prohibiting racial discrimination in places of public accommodation13

and in the making and enforcement of contracts;14 and under local law prohibiting racial

discrimination15 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 meeting his burden of proof that the defendants 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
   42 U.S.C. § 2000a et seq.
14
   Id. § 1981.
15
   10 V.I.C. § 64.
                                               5
