Phillips v. Ross et al

Page 1 of 14
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
GARY PHILLIPS,
Plaintiff,
v.
CASSIDY ROSS, et al.,
Defendants.
MEMORANDUM DECISION AND
ORDER DISMISSING SOME
DEFENDANTS AND REQUESTING
WAIVER OF SERVICE ON
REMAINING DEFENDANT
Case No. 2:23-cv-00929-TC
Judge Tena Campbell
Plaintiff Gary Phillips, who is a self-represented inmate at the Utah State Correctional
Facility, brings this civil rights action under 42 U.S.C. § 1983.
On July 15, 2024, the court provided guidance and ordered Mr. Phillips to cure the
deficiencies in his Complaint by filing an amended complaint. (Mem. Decision & Order, July
15, 2024, ECF No. 19.) The court notified Mr. Phillips that, “[i]f an amended complaint is filed,
the court will screen each claim and defendant for dismissal or an order effecting service upon
valid defendants who are affirmatively linked to valid claims.” (Id. at 7.) Mr. Phillips filed an
Amended Complaint on July 31, 2024. (ECF No. 21; see also Errata, ECF No. 22.) Having now
thoroughly screened and liberally construed1 the Amended Complaint under its statutory review
1 Pro se pleadings are liberally construed, “applying a less stringent standard than is applicable to
pleadings filed by lawyers. Th[e] court, however, will not supply additional factual allegations
to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney
v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (citations omitted). Accordingly, if
the court can reasonably read the pleadings “to state a valid claim on which the plaintiff could
prevail, it should do so despite the plaintiff’s failure to cite proper legal authority, his confusion
of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with
pleading requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Still, it is not
“the proper function of the district court to assume the role of advocate for the pro se litigant.”
Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White,
880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam)).
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 1
of 14

Page 2 of 14
function,2 the court dismisses two defendants and requests waiver of service from the remaining
defendant. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process,
and perform all duties in such cases.”).
BACKGROUND
Mr. Phillips alleges that three employees of the Utah Department of Corrections denied
him due process and engaged in cruel and unusual punishment by finding him “guilty of
tampering with a urine test” without verifying his medical status. (ECF No. 21 at 5.) More
specifically, he asserts as follows: Defendant Woolsey, a correctional officer, collected the urine
sample for the test. (Id. at 6.) About two weeks later, Mr. Phillips was written up “for low
creatine levels ‘tampering.’” (Id.) Defendant Cassidy Ross, a disciplinary officer, then
conducted a disciplinary proceeding during which Mr. Phillips told Officer Ross “that [he] was
on water pills and prostate pills that cause [him] to urinate constantly and that it causes [his] GF
creatine to be low.” Mr. Phillips further alleges he told Officer Ross “to talk to medical [but] he
never did.” (Id.) In a written report, Officer Ross stated: “I found some evidence Inmate
PHILLIPS, GARY LYNN is guilty of A13: SUBSTANCE ABUSE, based on the following:
Officer’s report states Offender PHILLIPS tampered with a UA sample.” (Utah Dep’t of Corr.
2 The screening statute, 28 U.S.C. § 1915A, reads:
(a) Screening.—The court shall review … a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal.—On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which relief may
be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 2
of 14

Page 3 of 14
Papers, ECF No. 4-1 at 4.) Defendant Wendy Horlacher-Aldrich, a disciplinary appeals officer,
later affirmed Officer Ross’s decision on appeal. (Id. at 5; ECF No. 21 at 7.)
STANDARD OF REVIEW
When assessing a complaint for failure to state a claim upon which relief may be granted,
the court takes all well-pleaded factual assertions as true and regards them in a light most
favorable to the plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th
Cir. 2007). But the factual allegations in a complaint must raise a plausible right to relief. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–56 (2007). A claim is facially plausible when the
plaintiff pleads enough factual content to justify the reasonable inference the defendant is liable
for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And while the court
accepts well-pleaded factual allegations as true at this stage, the court considers “bare assertions”
involving “nothing more than a ‘formulaic recitation of the elements’ of a constitutional …
claim” as “conclusory and not entitled to” an assumption of truth. Id. at 681 (quoting Twombly,
550 U.S. at 554–55).
In other words, “the mere metaphysical possibility that some plaintiff could prove some
set of facts in support of the pleaded claims is insufficient; the complaint must give the court
reason to believe this plaintiff has a reasonable likelihood of mustering factual support for these
claims.” Red Hawk, 493 F.3d at 1177. Also, the plaintiff must plead facts, not conclusions:
“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions[,]” including where “a legal conclusion [is] couched as a factual
allegation.” Ashcroft, 556 U.S. at 678 (cleaned up).
When the court conducts its review of a prisoner’s complaint seeking redress against
governmental officials, it does so for each individual defendant and for each cause of action. See
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 3
of 14

Page 4 of 14
Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1212 (10th Cir. 2019) (noting that a plaintiff
must “explain[] which … prison-official defendants are liable for what improper conduct”).
Indeed, § 1983 cases often include a list of defendants, such as
the government agency and a number of government actors sued in their
individual capacities…. [I]t is particularly important in such circumstances that
the complaint make clear exactly who is alleged to have done what to whom, to
provide each individual with fair notice as to the basis of the claims against him
or her, as distinguished from collective allegations against the state.
Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249–50 (10th Cir. 2008) (citing
Twombly, 550 U.S. at 565 n.10).
ANALYSIS
The court’s previous order notified Mr. Phillips of the due process standards applicable to
disciplinary hearings as follows:
“Prison disciplinary proceedings are not part of a criminal prosecution, and the
full panoply of rights due a defendant in such proceedings does not apply.” Wolff
v. McDonnell, 418 U.S. 539, 556 (1974). To satisfy due process in a prison
disciplinary proceeding, “the inmate must receive: (1) advance written notice of
the disciplinary charges; (2) an opportunity, when consistent with institutional
safety and correctional goals, to call witnesses and present documentary evidence
in his defense; and (3) a written statement by the factfinder of the evidence relied
on and the reasons for the disciplinary action.” Superintendent, Mass. Corr. Inst.
v. Hill, 472 U.S. 445, 454 (1985). There must also be “some evidence in the
record” supporting the charge. Id. at 454-56.
Bird v. Pacheco, 729 F. App’x 627, 629–30 (10th Cir. 2018). (ECF No. 19 at 5.)
Even with this information, the only requirement Mr. Phillipps asserts was violated is that
he was denied the chance to present “documentary evidence in his defense.” (ECF No. 21 at 6.)
Specifically, Mr. Phillips alleges that he asked Officer Ross to “talk to medical” to verify that
Mr. Phillips was “on water pills and prostate pills that cause[d him] to urinate constantly and that
… cause[d his] GF creatine to be low … [but Officer Ross] never did.” (Id.) Presumably, the
prescriptions for water and prostate pills were “documentary evidence.” Bird, 729 F. App’x at
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 4
of 14

Page 5 of 14
630. And only Officer Ross is alleged to have denied Mr. Phillips the chance to present that
evidence in the disciplinary proceeding.
Mr. Phillips has thus failed to state a claim upon which relief may be granted against
Officers Woolsey and Horlacher-Aldrich. The court therefore dismisses these defendants.3
In contrast, the court finds that Mr. Phillips has potentially stated a claim upon which
relief may be granted against Officer Ross. Under Rule 4(c)(1) of the Federal Rules of Civil
Procedure, the court therefore requests waiver of service from Officer Ross, noting that Officer
Ross need only answer only Mr. Phillips’s allegation of a federal due process violation
concerning his disciplinary proceeding.
ORDER
Based on the court’s screening of the Amended Complaint, IT IS ORDERED as follows:
1. 	Because Mr. Phillips fails to affirmatively link each element of a due process
violation to Defendants Woolsey and Horlacher-Aldrich, these Defendants are DISMISSED.
2. 	Under Federal Rule of Civil Procedure 4(c)(1), the court requests waiver of
service from Defendant Cassidy Ross.
3. 	For this single remaining Defendant, the court directs the Clerk of Court to mail:
a. 	Notice of a Lawsuit and Request to Waive Service of a Summons, AO
form 398; 2 copies of Waiver of the Service of Summons, AO form 399; a
copy of the Amended Complaint and Errata (ECF Nos. 21 &22), and this
3 Although Mr. Phillips tersely states that the failure to allow him to present evidence in his
disciplinary hearing rises to the level of cruel and unusual punishment, he does not support that
assertion with any of the necessary allegations that the Defendants 1) showed deliberate
indifference by ignoring an objectively sufficient serious harm. and 2) subjectively “knew he
faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures
to abate it.” Hardy v. Rabie, 147 F.4th 1156, 1163 (10th Cir. 2025) (cleaned up). The court
therefore does not consider this claim further.
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 5
of 14

Page 6 of 14
Order to: Utah Department of Corrections, Att’n: Correctional
Program Coordinator--3rd Floor DPO Suite, 14717 South Minuteman
Drive, Draper, Utah 84020.
b. 	Copies of the Amended Complaint and Errata (ECF Nos. 21 & 22) and
this Order to Utah Attorney General's Office, Att’n: Litigation
Division, Prisoner Litigation Unit, 160 East 300 South, Sixth Floor,
P.O. Box 140856, Salt Lake City, Utah 84114-0856.
4. 	The Defendant is cautioned that Rule 4 of the Federal Rules of Civil Procedure
requires the Defendant to cooperate in saving unnecessary costs of service of summons and
complaint. Under Rule 4, if the Defendant does not waive service, after being asked by the court
to do so on the Plaintiff’s behalf, the Defendant must bear service costs unless good cause be
shown for not signing and returning the waiver form. If service is waived, this action will
proceed as if the Defendant had been served on the day the waiver is filed, except that the
Defendant need not file an answer until 60 days from the date when the waiver request was sent.
See Fed. R. Civ. P. 4(d)(3) (allowing more days to respond than would be required if formal
summons service were necessary). The Defendant must read the statement at the waiver form’s
end that more completely describes the party’s duties about waiver. If service is waived after the
deadline given in the Notice of a Lawsuit and Request to Waive Service of a Summons but
before Defendant has been personally served, the Answer shall be due 60 days from the date on
which the request for waiver was sent or 20 days from the date the waiver form is filed,
whichever is later.
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 6
of 14

Page 7 of 14
5. 	If the Defendant does not execute a waiver, the Defendant’s counsel must file
notice giving reasons a waiver has not been filed. A report is due 30 days from the date a
request was sent.
6. 	The Defendant shall answer the Amended Complaint, observing the Federal Rules
of Civil Procedure and the following litigation schedule:
a. 	If the Defendant asserts the affirmative defense of the Plaintiff’s failure to
exhaust administrative remedies in a grievance process, the Defendant
must,
i. 	within 60 days of date of waiver request, file an answer;
ii. 	within 90 days of filing an answer, prepare and file a Martinez
report4 limited to the exhaustion issue; and,
iii. 	within 120 days of filing an answer, file a separate summary
judgment motion as to exhaustion only (with supporting
memorandum).
4 See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (approving district court’s practice of
ordering prison administration to prepare report to be included in pleadings in cases when a
prisoner has filed suit alleging constitutional violation against institution officials). In Gee v.
Estes, the Tenth Circuit explained the nature and function of a Martinez report as follows:
Under the Martinez procedure, the district judge or a United States magistrate
[judge] to whom the matter has been referred will direct prison officials to
respond in writing to the various allegations, supporting their response by
affidavits and copies of internal disciplinary rules and reports. The purpose of the
Martinez report is to ascertain whether there is a factual as well as a legal basis for
the prisoner’s claims. This, of course, will allow the court to dig beneath the
conclusional allegations. These reports have proved useful to determine whether
the case is so devoid of merit as to warrant dismissal without trial.
829 F.2d 1005, 1007 (10th Cir. 1987).
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 7
of 14

Page 8 of 14
b. 	If the Defendant challenges the complaint’s bare allegations, the
Defendant shall, within 60 days of date of waiver request, file a motion to
dismiss based on Federal Rule of Civil Procedure 12(b)(6).
c. 	If the Defendant chooses not to rely on an exhaustion defense and wants to
pierce the complaint’s allegations, the Defendant must,
i. 	within 60 days of date of waiver request, file an answer;
ii. 	within 90 days of filing an answer, prepare and file a Martinez
report addressing the complaint's substance; and,
iii. 	within 120 days of filing an answer, file a separate summary
judgment motion, with supporting memorandum.
d. 	If the Defendant seeks relief otherwise contemplated under procedural
rules, the Defendant must file an appropriate motion within 90 days of
filing an answer.
7. 	The Plaintiff must, within 30 days of its filing, respond to the Martinez report.
The Plaintiff should keep in mind that Martinez reports may “be used for their truth against a
plaintiff if the plaintiff has been warned that failing to respond to the Martinez report could lead
to that result. Ortiz v. Torgensen, 857 F. App’x 419, 426–27 (10th Cir. 2021). This order is the
warning. The Plaintiff’s response may include requests for discovery of any relevant documents
he deems missing from the Martinez report.
8. 	The Plaintiff must, within 30 days of its filing, respond to a motion to dismiss or
summary judgment motion. For the Plaintiff’s information and convenience, the court has
attached the procedural rules governing summary judgment practice.
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 8
of 14

Page 9 of 14
9. 	The Defendant shall file a reply brief within 14 days after the date the Plaintiff’s
opposition is filed.
10. 	Any evidence filed to support the parties’ summary judgment positions must be
reviewed by the parties to ensure that 1) only relevant evidence is submitted (for instance, if
filing medical records, ensure that only medical records applicable to the exact claims at issue
are filed); and 2) the numbering on the pages of all evidentiary submissions is clear for each page
of each document and matches up to any references in citations to those documents in any
summary judgment motion, response, and reply. If evidentiary documents do not comply with
this requirement, the summary judgment motion, response, or reply, may be struck from the
docket, subject to refiling with compliant evidentiary documents.
11. 	A motion to dismiss or for summary judgment shall be deemed submitted as of
the date the reply brief is due. No hearing will be held on a motion unless the court so orders at a
later date.
DATED this 5th day of January, 2026.
BY THE COURT:
Tena Campbell
United States District Judge
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 9
of 14

Page 10 of 14
Fed Rule of Civil Procedure 56
Summary Judgment
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary
judgment, identifying each claim or defense - or the part of each claim or defense—on which
summary judgment is sought. The court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
The court should state on the record the reasons for granting or denying the motion.
(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a
party may file a motion for summary judgment at any time until 30 days after the close of all
discovery.
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or
other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider
other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the matters stated.
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of
fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court
may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials—including the facts
considered undisputed—show that the movant is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the
court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the parties material facts that may
not be genuinely in dispute.
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 10
of 14

Page 11 of 14
(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the
motion, it may enter an order stating any material fact—including an item of damages or other
relief—that is not genuinely in dispute and treating the fact as established in the case.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under
this rule is submitted in bad faith or solely for delay, the court—after notice and a reasonable time to
respond—may order the submitting party to pay the other party the reasonable expenses, including
attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt or
subjected to other appropriate sanctions.
DISTRICT OF UTAH LOCAL CIVIL RULE 56-1
SUMMARY JUDGMENT MOTIONS AND MEMORANDA
(a) Compliance with DUCivR 7-1.
A motion for summary judgment, response, and reply must comply with DUCivR 7-1 in addition to
the requirements in this rule.
(b) Motion.
If a party files more than 1 summary judgment motion at the same time, the court may strike the
motions and require that the motions be consolidated into a single motion. A motion for summary
judgment must be titled "Motion for Summary Judgment," be supported by an Appendix of Evidence,
as described in 56-1(e), and include the following sections:
(1) Introduction and Relief Requested. A concise statement of each claim or defense for which
summary judgment is sought and a clear statement of the relief requested.
(2) Background (Optional). An optional section to provide context for the case, dispute, and
motion. If included, this section should be placed between the Introduction and Relief
Requested and the Statement of Undisputed Material Facts. The Background need not be
limited to undisputed facts and need not cite to evidentiary support.
(3) Statement of Undisputed Material Facts. A concise statement of the undisputed material facts
that entitle the moving party to judgment as a matter of law. Only facts necessary to decide
the motion should be included in this section. The moving party must cite with particularity
the evidence in the Appendix that supports each factual assertion.
(4) Argument. An explanation for each claim or defense, establishing, under the applicable
supporting authority, why the moving party is entitled to judgment as a matter of law. The
argument section should include a statement of each claim or defense on which the party is
seeking summary judgment and supporting authorities. Any factual references must cite to
the Appendix.
(c) Response.
A response to a motion for summary judgment may be accompanied by an Appendix of Evidence, if
applicable, and must include the following sections.
(1) Introduction. A concise statement explaining why summary judgment should be denied.
(2) Background (Optional). An optional section to provide context for the case, dispute, and
motion. If included, this section should be placed between the Introduction and the Response
to Statement of Undisputed Material Facts. The Background need not be limited to
undisputed facts and need not cite to evidentiary support.
(3) Response to Statement of Undisputed Material Facts. A party must restate only those specific
facts the opposing party contends are genuinely disputed or immaterial, providing a concise
statement explaining why the fact is disputed or immaterial, and cite to the evidence used to
refute the fact. The responding party should not restate undisputed facts. If a fact is
inadmissible, the responding party must object, as provided in DUCivR 7-1(b), rather than
move to strike the inadmissible fact. Factual citations must reference the appropriate
Appendix.
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 11
of 14

Page 12 of 14
(4) Statement of Additional Material Facts (if applicable). If additional material facts are relevant
to show that there is a genuine dispute of material fact, the party must state each additional
fact and cite with particularity to the Appendix that contains the supporting evidence. Do not
include duplicate copies of evidence already in the record. Instead, the party must cite to
evidence in a previously filed Appendix. 	(5) Argument. An explanation for each claim or
defense, establishing, under the applicable supporting authority, why summary judgment
should be denied. Any factual citations must cite to the appropriate Appendix.
(d) Reply.
The moving party may file a reply. In the reply, a party may cite to evidence that was not previously
cited only to rebut a claim that a material fact is in dispute. Otherwise, a reply may not contain
additional evidence, and, if it does, the court may disregard it.
(e) Appendix of Evidence.
(1) All evidence cited in a motion, response, or reply must be compiled in an appendix. Do not
include duplicate copies of evidence already in the record. Instead, the party must cite to
evidence in a previously filed Appendix.
(2) The Appendix must include:
(A) a captioned, cover-page index that—
(i) lists each exhibit by number;
(ii) includes a description or title of the exhibit; and
(iii) identifies the source of the exhibit;
(B) complete copies of all exhibits, including deposition transcripts. For lengthy
deposition transcripts, the party may submit the relevant pages of the deposition and
the 4 pages before and 4 pages after the sections cited. Manuscript transcripts are
permitted, unless otherwise ordered by the court.
(f) Failure to Respond.
If a party fails to timely respond, the court may grant the motion without further notice if the moving
party has established that it is entitled to judgment as a matter of law.
DISTRICT OF UTAH LOCAL CIVIL RULE 7-1
MOTIONS AND MEMORANDA
(a) Motion, Response, and Reply.
(1) Motion and Memorandum. Except as otherwise allowed by this rule, a motion and
memorandum must be contained in the same document and include the following:
(A) an initial separate section stating succinctly the specific relief sought and the grounds
for the relief; and
(B) a recitation of relevant facts, supporting authority, and argument.
(2) Exception to the Requirement to Include Facts and Supporting Authority. The requirement to
include facts and supporting authority under section 7-1(a)(1)(B) does not apply to the
following motions:
(A) to extend time for the performance of an act, whether required or permitted, if the
motion is made before the current deadline expires;
(B) to continue a hearing or other court proceeding;
(C) to appoint a next friend or guardian ad litem;
(D) to substitute a party;
(E) for a settlement conference;
(F) for referral to or withdrawal from the court's ADR program; and
(G) for approval of a stipulation between the parties.
(3) No Motion Within a Response or Reply. A party may not make a motion, including a motion
under Fed. R. Civ. P. 56(d), or a cross-motion in a response or reply. Any motion must be
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 12
of 14

Page 13 of 14
separately filed. A cross-motion may incorporate by reference the arguments contained in a
response, if applicable.
(4) Page and Word Limits and Filing Times. Unless the court orders otherwise or the parties
stipulate to shorter requirements, the following apply:
(A) Motions Filed Under Fed. R. Civ. P. 12(b), 12(c), or 23(c).
(i) A motion or a response may not exceed 25 pages or 7,750 words.
(ii) A reply may not exceed 10 pages or 3,100 words.
(iii) A response to a motion must be filed within 28 days after service of the motion.
(iv) A reply may be filed within 14 days after service of the response.
(B) Motions Filed Under Fed. R. Civ. P. 56(a).
(i) A motion or a response may not exceed 40 pages or 12,400 words.
(ii) A reply may not exceed 20 pages or 6,200 words.
(iii) A response to a motion must be filed within 28 days after service of the motion.
(iv) A reply may be filed within 14 days after service of the response.
(C) Motions Filed Under Fed. R. Civ. P. 65.
(i) A motion or a response may not exceed 25 pages or 7,750 words.
(ii) A reply may not exceed 10 pages or 3,100 words.
(iii) A response to a motion must be filed within 14 days after service of the motion.
(iv) A reply may be filed within 14 days after service of the response.
(D) All Other Motions.
(i) A motion, response, or reply not specified above may not exceed 10 pages or
3,100 words.
(ii) A response to a motion must be filed within 14 days after service of the motion.
(iii) A reply may be filed within 14 days after service of the response.
(5) Stipulation to Extend Filing Time. Parties seeking to extend the filing time for a response or
reply must file a stipulated motion before the filing time has passed. A stipulation to extend a
filing time is ineffective without a court order.
(6) Sections Applicable to Page or Word Limits and Certification Requirement.
(A) All headings, citations, quotations, and footnotes count toward the page or word
limit.
(B) The caption, face sheet, table of contents, table of authorities, signature block,
certificate of service, and exhibits do not count toward the page or word limit.
(C) When a document exceeds the page limit, a party must certify at the end of the
document that the document complies with the word limit (e.g., “I, [attorney's name],
certify that this [name of document] contains [number of words] words and complies
with DUCivR 7-1(a)(4).”).
(7) Overlength Motion, Response, or Reply.
(A) Unless modified by the assigned judge in a court order or on their “practices and
procedures” page on the court website, a party must first obtain a court order
authorizing the additional pages or words before filing a motion, response, or reply
that exceeds the page or word limits in section 7-1(a)(4). The motion must be filed,
and the order obtained, before filing the overlength motion, response, or reply. The
motion to exceed the page or word limit must include:
(i) the number of additional pages or words that are needed; and
(ii) a statement of good cause why additional pages or words are needed.
(B) An overlength motion, response, or reply must contain a table of contents.
(8) Motion Seeking Relief Similar to Another Party's Motion. Each party seeking relief from the
court must file a motion that identifies the relief sought and grounds for the requested relief.
A party may incorporate by reference another party's arguments in the party's own motion, if
applicable, but filing a “Notice of Joinder” is improper.
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 13
of 14

Page 14 of 14
(9) Additional Memoranda. Unless otherwise ordered, the court will not consider additional
memoranda.
(b) Motion to Strike Evidence Improper; Evidentiary Objections Permitted.
(1) A motion to strike evidence offered in another party's motion, response, or reply is improper.
(2) If evidence is offered in a motion or a response, the response or reply may include an
objection to the evidence. In exceptional circumstances, the objection may be filed as a
separate document simultaneously with the response or reply.
(3) If new evidence is offered in a reply, an evidentiary objection must be filed within 7 days after
service of the reply.
(4) A party may file a response to an evidentiary objection at the same time any response or reply
is due or no later than 7 days after the objection was filed, whichever is later.
(c) Supplemental Authority.
When pertinent and significant authority comes to the attention of a party before the court has entered
a decision on a motion, the party may file a Notice of Supplemental Authority, which may not exceed
2 pages.
(1) The notice must contain, without argument, the following:
(A) a reference either to the page of the memorandum or to a point argued orally to which
the supplemental authority pertains; and
(B) the reasons why the supplemental authority is relevant.
(2) The court may decide a motion without waiting for a response to the notice. If the court has
not ruled on the motion, a party may file a response, which may not exceed 2 pages, within 7
days after service of the notice.
(d) Supporting Exhibits.
When evidence is cited in a motion, response, or reply, the relevant portions of the evidence must be
attached or filed separately and contemporaneously with the document.
(e) Proposed Orders.
(1) When Required. A party must provide a proposed order when filing a motion under section 7-
1(a)(2) of this rule or when the court orders otherwise.
(2) Filing Procedures. To file a proposed order, a party must:
(A) attach it as an exhibit to the motion; and
(B) email an editable copy of the proposed order, copied to other parties or their counsel—
(i) for motions filed under DUCivR 77-2, to utdecf_clerk@utd.uscourts.gov; and
(ii) for all other motions, to the assigned judge's chambers.
(f) Failure to Respond.
Except as provided in DUCivR 56-1(f), failure to respond timely to a motion may result in the court
granting the motion without further notice.
(g) Oral Arguments on Motions.
The court may set any motion for oral argument. Otherwise, a party may request oral argument on a
motion and must show good cause. If oral argument is not set, the court will determine a motion
based upon the parties’ written memoranda.
(h) Summary Judgment.
This rule and DUCivR 56-1 apply to motions for summary judgment and related memoranda.
(i) Courtesy Copies.
The court may require a party to provide courtesy copies as described in the court's ECF Procedures
Manual and on the Judge Information section of the court's website.
(j) Sanctions.
Failure to comply with the requirements of this rule may result in the court imposing sanctions,
including:
(1) returning the document for resubmission in accord with the rule;
(2) denial of the motion; or
(3) any other sanction the court deems appropriate.
Case 2:23-cv-00929-TC Document 37 Filed 01/05/26 PageID.<pageID> Page 14
of 14