Mark Sokolsky v. Daniel Meeks

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 31, 2019
• Docket: 18-15305
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 31 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARK STEVEN SOKOLSKY, No. 18-15305

Plaintiff-Appellant, D.C. No. 1:13-cv-02044-LJO-GSA v.

DANIEL MEEKS; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding

Submitted November 15, 2019** San Francisco, California

Before: WARDLAW, W. FLETCHER, and LINN,*** Circuit Judges.

Mark Sokolsky appeals from the district court’s order dismissing this case

without prejudice. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard Linn, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. 1. We may consider Sokolsky’s claim that the district court abused its

discretion in dismissing Sokolsky’s case. Although we “will not ordinarily

consider matters on appeal that are not specifically and distinctly argued in [the]

appellant’s opening brief . . . we may review an issue if the failure to raise the issue

properly did not prejudice the defense of the opposing party.” Koerner v. Grigas,

328 F.3d 1039, 1048–49 (9th Cir. 2003) (quoting United States v. Ullah, 976 F.3d

509, 514 (9th Cir. 1992)). Although Sokolsky’s brief includes just a single

sentence suggesting the district court abused its discretion, Defendant-Appellees

do not assert prejudice here—nor could they—given that they fully briefed the

merits of Sokolsky’s challenge to the district court’s order.

2. The district court properly applied our traditional five-factor test in

dismissing Sokolsky’s case for failure to comply with the court’s order requiring

him to respond to the Defendant-Appellees motion for summary judgment. See

Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Given that at least four

factors favor dismissal, we do not find the district court abused its discretion here.

See Yourish v. Cal. Amplifier, 191 F.3d 983, 992 (9th Cir. 1999). First, “the

public’s interest in expeditious resolution of litigation always favors dismissal.”

Id. at 990. Second, the district court dedicated “large amounts of the court’s

valuable time [to Sokolsky’s case] that it could have devoted to other major and

serious criminal and civil cases on its docket.” Ferdik v. Bonzelet, 963 F.2d 1258,

2 1261 (9th Cir. 1992). Third, there is a risk of prejudice from further delay to the

Defendant-Appellees. Pagtalunan, 291 F.3d at 642–43. Finally, it is hard to

imagine a “less drastic sanction [than dismissal without prejudice] that was

available to the district court.” Carey v. King, 856 F.2d 1439, 1441 (9th Cir.

1988).

3. The district court did not deny Sokolsky his right to counsel. Rather, the

district court repeatedly advised Sokolsky and his counsel as to how his counsel

could properly appear in the case. Yet, neither Sokolsky nor his counsel followed

the court’s simple directions. Thus, the district court acted fully within its

discretion by striking Sokolsky’s attorney’s filings. See Nilsson, Robbins,

Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1547

(9th Cir. 1988). Furthermore, no evidence supports Sokolsky’s assertion that the

district court acted in a biased manner in this case.

4. We deny Sokolsky’s motion for temporary and permanent injunctive

relief. 1

AFFIRMED.

1 Sokolsky’s motion for temporary and permanent injunctive relief refers to events that are alleged to have occurred after the instant appeal was filed. Dkt. 33, 35. Because Sokolsky has not demonstrated that the district court denied his application or otherwise explained why it would be impractical to raise these new claims first in the district court, we deny the motion. Fed. R. App. P. 8(a)(2)(A).