NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK STEVEN SOKOLSKY, 

Plaintiff-Appellant, 

 v. 

DANIEL MEEKS; et al., 

Defendants-Appellees.

No. 18-15305 

D.C. No. 

1:13-cv-02044-LJO-GSA 

MEMORANDUM*

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.

FILED

DEC 31 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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, 
3 

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).