Abreu v. Salt Lake County Sheriff's Office et al

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THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
ANGEL CHRISTOPHER ABREU,
Plaintiff,
v.
SALT LAKE COUNTY SHERIFF'S
OFFICE et al.,
Defendants.
AMENDED
MEMORANDUM DECISION AND
ORDER, DISMISSING SOME
DEFENDANTS AND CLAIMS, AND
SCHEDULING FURTHER LITIGATION
Case No. 2:25-CV-349-DAK
District Judge Dale A. Kimball
As a pretrial detainee, Plaintiff Angel Abreu, filed this pro se civil-rights action, see 42
U.S.C.S. § 1983 (2025),1 proceeding in forma pauperis, see 28 id. § 1915. (ECF Nos. 1, 10.)
Screening Plaintiff's original complaint (OC), (ECF No. 1), the Court identified
deficiencies, gave guidance on curing those deficiencies, and ordered "Plaintiff to file an
amended complaint curing deficiencies before further pursuing claims," (ECF No. 8, at 1).
Plaintiff then filed Amended Complaint (AC). (ECF No. 13.) Having now screened AC, 2 under
1Section 1983 reads in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . ., subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C.S. § 1983 (2025).
2 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). This means that if this 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)).
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its statutory review function,3 the Court dismisses some claims and defendants and orders further
litigation as to remaining claims and defendants.
I. BACKGROUND
In their official and individual capacities, Plaintiff names the following Salt Lake County
(SLC) defendants: Captain Bennett, corrections captain; Matthew Dumont, corrections chief
deputy; Kenneth Garcia, corrections lieutenant; Captain Green, corrections captain; Elias
Landau, corrections officer; Uaisele Panisi, physician assistant; Paul, "supervisor . . . to
medical providers"; Suzanne Skirvin, corrections officer; Todd, "health services supervisor";
Tammy, "medical staff supervisor"; Michelle Teasdale, jail medical provider; and Doctor
Wilcox, lead jail physician. (Id.)
Plaintiff alleges these defendants variously A. did not adequately treat his 1. shoulder
injury and related pain and 2. chest pain that he feared was heart disease; and B. assaulted him,
using excessive force. (Id.) He asserts these actions breached his federal constitutional right
against cruel and unusual punishment, U.S. Const. amend. VIII ("Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.")4; and his
3The screening statute 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.
28 U.S.C.S. § 1915A (2025).
4The Tenth Circuit holds that a pretrial detainee's claims as to conditions of confinement are controlled by
the Fourteenth Amendment's Due Process Clause, and that "the Eighth Amendment standard provides the
benchmark for such claims." Routt v. Howard, 764 F. App'x 762, 770 (10th Cir. 2019) (unpublished) (quoting Craig
v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998)); see Hooks v. Atoki, 983 F.3d 1193, 1203-04 (10th Cir. 2020).
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state constitutional right against unnecessary rigor, Utah Const. art. 1, § 9 ("Persons arrested or
imprisoned shall not be treated with unnecessary rigor."). (ECF No. 13.)
To remedy his injuries, Plaintiff requests damages, declaratory judgment, and injunctive
relief. (Id. at 24, 27.)
II. SUA SPONTE DISMISSALS FOR FAILURE TO STATE A CLAIM
A. Standard of Review
Assessing a complaint for failure to state a claim upon which relief may be granted, this
Court takes all well-pleaded factual assertions as true and regards them in a light most
advantageous to the plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th
Cir. 2007). Dismissal is appropriate when--though the facts are viewed in the plaintiff's favor--
the plaintiff has not posed a "plausible" right to relief. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). "The burden is
on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that
he or she is entitled to relief." Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556).
When a civil-rights complaint contains "bare assertions," involving "nothing more than a
'formulaic recitation of the elements' of a constitutional . . . claim," the Court considers those
assertions "conclusory and not entitled to" an assumption of truth. Ashcroft v. Iqbal, 556 U.S.
662, 681 (2009) (quoting Twombly, 550 U.S. at 554-55); see also id. at 678 ("Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").
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 (italics in original). Also, "[f]acts, not conclusions, must be
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pleaded--'the 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.'" Renaud v. Ross, No. 1:22-CV-212, 2023 U.S. Dist. LEXIS 19808, at *8 (D. Wy.
Jan. 27, 2023) (alteration in original) (quoting Ashcroft, 556 U.S. at 678).
As the Court reviews the sufficiency of Plaintiff's allegations, it painstakingly does so per
individual defendant, per cause of action. See Williams v. Utah Dep't of Corr., 928 F. 3d 1209,
1212 (10th Cir. 2019) (stating plaintiff must "explain[] which . . . prison-official defendants are
liable for what improper conduct"). Indeed, § 1983 cases often include a list of defendants, like
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)
(emphasis in original) (citing Twombly, 550 U.S. at 565 n.10). When a complaint "fails to isolate
the allegedly unconstitutional acts of each defendant," the plaintiff has not carried the burden of
giving "adequate notice as to the nature of the claims against each." Id. at 1250. For instance,
when a complaint uses "the collective term 'Defendants' or a list of the defendants named
individually but with no distinction as to what acts are attributable to whom, it is impossible for
any of these individuals to ascertain what particular unconstitutional acts they are alleged to have
committed." Id.
The facts stated in each of the following sections are taken from the AC's allegations and
are viewed in a light most favorable to Plaintiff. The facts are taken as true for this Order only.
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B. Legal Standards
1. Respondeat superior
Plaintiff was notified in the Cure Order about the applicability of respondeat-superior
principles to his case. (ECF No. 8, at 9.) The Court now reviews those principles again.
"A § 1983 defendant sued in an individual capacity may be subject to personal liability
and/or supervisory liability." Est. of Booker v. Gomez, 745 F.3d 405, 435 (10th Cir. 2014)
(quotation marks omitted). Still, § 1983 "does not authorize liability under a theory
of respondeat superior." Id. (cleaned up). So, to adequately allege supervisory liability, "[t]he
plaintiff . . . must show an 'affirmative link' between the supervisor and the constitutional
violation." Id. (cleaned up) This means "more than a supervisor's mere knowledge of his
subordinate's conduct." Id. (cleaned up). "Rather, a plaintiff must satisfy three elements . . . to
establish a successful § 1983 claim against a defendant based on his or her supervisory
responsibilities: (1) personal involvement; (2) causation; and (3) state of mind." Id. (cleaned up).
The element of causation "requires the plaintiff to show that the defendant's alleged
action(s) caused the constitutional violation by setting in motion a series of events that the
defendant knew or reasonably should have known would cause others to deprive the plaintiff of
[his] constitutional rights." Id. (cleaned up). Meanwhile, the state-of-mind "element requires the
plaintiff to show that the defendant took the alleged actions with the requisite state of mind,
which can be no less than the mens rea required of the subordinates to commit the underlying
constitutional violation." Id. at 435 (cleaned up). To establish the culpable-state-of-mind prong,
Plaintiff must allege that a defendant acted with deliberate indifference. Keith v. Koerner, 843
F.3d 833, 848-49 (10th Cir. 2016). Deliberate indifference requires a higher degree of fault than
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negligence, or even gross negligence. Berry v. Muskogee, 900 F.2d 1489, 1495-96 (10th Cir.
1990).
"The standard is subjective, requiring that the official actually be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference." Keith, 843 F.3d at 848 (cleaned up). To satisfy this standard, Plaintiff
must allege facts "showing that [a defendant] knowingly created a substantial risk of
constitutional injury." Schneider v. Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir.
2013) (cleaned up). Inaction, in some cases can be enough--"[a] local government policymaker is
deliberately indifferent when he deliberately or consciously fails to act when presented with an
obvious risk of constitutional harm which will almost inevitably result in constitutional injury of
the type experienced by the plaintiff." Id. (cleaned up).
2. Grievance denial
Plaintiff was notified in the Cure Order about the applicability of grievance-denial
principles to his case. (ECF No. 8, at 5.) The Court now reviews those principles again.
Grievance denial alone, not connected to "violation of constitutional rights alleged by
plaintiff, does not establish personal participation under § 1983." Gallagher v. Shelton, 587 F.3d
1063, 1069 (10th Cir. 2009); see also Walker v. Hickenlooper, 627 F. App'x 710, 715 (10th Cir.
2015) (unpublished) (stating Tenth Circuit has "squarely held that a prison official's denial of a
grievance cannot create liability under § 1983"); Davis v. Ark. Valley Corr. Facility, 99 F. App'x
883, 843 (10th Cir. 2004) ("Copying [the warden] with correspondence outlining his complaints
about medical care, without more, does not sufficiently implicate the warden under § 1983.").
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C. Defendants to be Dismissed
Plaintiff alleges that Defendants Bennett, Dumont, Green, Paul, Tammy, and Todd
breached his constitutional rights against cruel and unusual punishment and unnecessary rigor.
(ECF No. 13.) Specifically, he states that when he brought episodes of "inadequate medical
treatment . . . to the attention of the medical staff supervisors, Todd, Tammy, and Matthew
Dumont, the responses given were, no other relief would be given as the providers' care and
recommendation 'meets the community standard of care.'" (Id. at 12.) Plaintiff also alleges he
"informed supervisors, Captain Green, Captain Bennett, and Matthew Dumont, of the [excessive-
force] incident and his injuries sustained, for which a use of force critic was conducted by the
supervisors, and the matter was then closed as justified without any relief or remedy offered."
(Id. at 19.) Plaintiff finally alleges that he "filed numerous grievances informing . . . supervisors,
Todd, Tammy, Paul, and Matthew Dumont of the denial of . . . care . . ., all of which were
returned to [Plaintiff] without any relief or action." (Id. at 14.)
So, under tenets of supervisory liability, to state a valid claim here, Plaintiff must have
alleged "personal involvement." Est. of Booker, 745 F.3d at 435; Dodds, 614 F.3d at 1195.
Instead, Plaintiff asserts that Bennett, Dumont, Green, Paul, Tammy, Todd knew of alleged
constitutional violations only after they occurred, when he brought them to their attention. Thus,
personnel who were supervised by these defendants were allegedly carrying out unconstitutional
actions without complying with a policy set by the defendants and without their awareness.
Then, Plaintiff must further allege an "affirmative link between the supervisor's conduct and the
violation." Id. For instance, he must assert that the supervisor "caused the complained of
constitutional harm, and . . . acted with the state of mind required to establish the alleged
constitutional deprivation." Dodds, 614 F.3d at 1199. Yet, as set forth above, Plaintiff's sparse
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allegations on these points are conclusory at best. For instance, Plaintiff's allegations lead to a
conclusion, again, that Bennett, Dumont, Green, Paul, Tammy, Todd were not involved or aware
until they reviewed other staff members' past behavior. Meanwhile, the mere contention that a
defendant "maintains a position of authority"--even if the defendant "instituted the policy" that
caused subordinates' unconstitutional conduct--is "insufficient to plausibly claim both personal
participation and deliberate indifference." Pittman v. Williams, No. 26808, 2023 U.S. App.
LEXIS 26808, at *4-5 (10th Cir. Oct. 10, 2023) (unpublished). There is not an adequately
alleged connection between Bennett, Dumont, Green, Paul, Tammy, Todd and the assertedly
inadequate medical care Plaintiff received, nor the excessive force he was treated with, by other
personnel. See id. at *5. Bennett, Dumont, Green, Paul, Tammy, and Todd are only purported to
have had awareness after the fact.
Similarly, because grievance denial alone "does not establish personal participation under
§ 1983," Gallagher, 587 F.3d at 1069, any potential grievances of Plaintiff's that were denied by
Todd, Tammy, Paul, and Matthew Dumont do not suggest an adequate cause of action against
any of those defendants. (ECF No. 13, at 14.)
D. Conclusion
The above discussion covers all allegations leveled at Defendants Bennett, Dumont,
Green, Paul, Tammy, and Todd. On the basis of Plaintiff's failure to sufficiently allege their
personal participation, Plaintiff's federal constitutional claims against them are dismissed for
failure to state a claim upon which relief may be granted.5
5 In the Cure Order, the Court gave Plaintiff information on an "unnecessary rigor" cause of action under
the Utah Constitution. (ECF No. 8, at 6-7.) Even so, Plaintiff makes no attempt in the AC to distinguish his
allegations of unnecessary rigor from a federal constitutional claim under the Eighth Amendment's Cruel and
Unusual Punishment Clause. Plaintiff thus also fails to state a claim of unnecessary rigor against Defendants
Bennett, Dumont, Green, Paul, Tammy, and Todd.
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III. CLAIMS WARRANTING FURTHER LITIGATION
The Court concludes that--against the below remaining defendants--Plaintiff appears to
have stated a claim upon which relief may be granted.
A. Salt Lake County, who shall answer the claim of its creation, or countenancing, of an
unconstitutional "'short term' medical care custom [or policy]," supported primarily by the
allegations found in the AC's paragraphs 66-67 and 122-26. (ECF No. 13, at 11, 19-20.) Salt
Lake County is the ultimate defendant, stemming from Plaintiff's claims against individual
defendants in their official capacities. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55
(1978) (holding official-capacity claim functions as claim against governmental entity itself)
B. Michelle Teasdale, who shall answer the inadequate-medical-treatment and
unnecessary-rigor claims supported primarily by the allegations found in the AC's paragraphs 64,
122-26, 127-35. (ECF No. 13, at 10, 19-21.)
C. Uaisele Panisi, who shall answer the inadequate-medical-treatment and unnecessary-
rigor claims supported primarily by the allegations found in the AC's paragraphs 68-69, 122-26,
and 127-35. (Id. at 12, 19-21.)
D. Doctor Wilcox, who shall answer the inadequate-medical-treatment and unnecessary-
rigor claims supported primarily by the allegations found in the AC's paragraphs 65, 122-26, and
127-35. (Id. at 10-11, 19-21.)
E. Suzanne Skirvin, who shall answer the excessive force and unnecessary-rigor claims
supported primarily by the allegations found in the AC's paragraphs 89, 105, 109-14, and 136-
45. (Id. at 15, 17-18, 21-22.)
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F. Elias Landau, who shall answer the excessive force and unnecessary-rigor claims
supported primarily by the allegations found in the AC's paragraphs 89, 101-02, 105, 109-14 and
136-45. (Id. at 15, 17-18, 21-22.)
G. Kenneth Garcia, who shall answer the excessive force and unnecessary-rigor claims
supported primarily by the allegations found in the AC's paragraphs 89, 105, 109-14 and 136-45.
(Id. at 15, 17-18, 21-22.)
The Court requires each of these defendants to answer the AC and follow the litigation
schedule set forth below.
IV. ORDER
Based on the Court's screening of the Amended Complaint, IT IS ORDERED as
follows:
A. For failure to state a claim upon which relief may be granted, Defendants Dumont,
Todd, Tammy, Paul, Green, and Bennett are DISMISSED with prejudice. (ECF No. 13.)
Plaintiff failed to state a claim, even though the Court gave Plaintiff clear instructions (in its
Cure Order) explaining the principles of respondeat superior and grievance denial. It is apparent
to the Court that further opportunity to amend would not lead to a different result.
B. Under Federal Rule of Civil Procedure 4(c)(1), the Court requests waiver of service
from the following Salt Lake County defendants: 1. Kenneth Garcia; 2. Elias Landau; 3.
Uaisele Panisi; 4. Salt Lake County; 5. Suzanne Skirvin; 6. Michelle Teasdale; and 7. Doctor
Wilcox. (ECF No. 13.)
C. The Clerk of Court shall mail Notice of a Lawsuit and Request to Waive Service of a
Summons, AO form 398; copies of Waiver of the Service of Summons, AO form 399; and
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copies of the Amended Complaint, (ECF No. 13), and this Order to Salt Lake County defendants
Garcia, Landau, Panisi, Salt Lake County, Skirvin, Teasdale, and Wilcox, in care of:
Salt Lake County Sheriff's Office
Ms. Carita Lucey
2001 S. State Street, Suite S2700
Salt Lake City, UT 84190.
D. Defendants are cautioned that Federal Rule of Civil Procedure 4 requires Defendants
to cooperate in saving unnecessary costs of service of summons and complaint. Under Rule 4, if
Defendants do not waive summons service, after being asked by the Court to do so on Plaintiff's
behalf, Defendants 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 Defendants had
been served on the day the waiver is filed, except that Defendants 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). (This
allows more days to respond than would be required if formal summons service is necessary.)
Defendants 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 Defendants have 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.
E. If Defendants do not execute waivers, attorney(s) for Defendants must file a notice
with reasons for not giving a waiver. A notice is due 30 days from the date a request was sent.
F. Defendants shall answer the Amended Complaint, (ECF No. 13), observing Federal
Rules of Civil Procedure and the following litigation schedule:
1. If Defendant asserts the affirmative defense of Plaintiff's failure to exhaust
administrative remedies in a grievance process, Defendant must,
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a. within 60 days of date of waiver request, file an answer;
b. within 90 days of filing an answer, prepare and file a Martinez report6
limited to the exhaustion issue; and,
c. within 120 days of filing an answer, file a separate summary
judgment motion, with supporting memorandum.
2. If Defendants challenge the complaint's bare allegations, Defendants shall,
within 60 days of date of waiver request, file a motion to dismiss based on
Federal Rule of Civil Procedure 12(b)(6).
3. If Defendants choose not to rely on an exhaustion defense and wants to pierce
the complaint's allegations, Defendants must,
a. within 60 days of date of waiver request, file an answer;
b. within 90 days of filing an answer, prepare and file a Martinez report
addressing the complaint's substance; and,
c. within 120 days of filing an answer, file a separate summary
judgment motion, with supporting memorandum.
6 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 prisoner has filed suit alleging
constitutional violation against institution officials).
In Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987), the Tenth Circuit explained the nature and function of a
Martinez report, saying:
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.
Id. at 1007.
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4. If Defendants want to seek relief otherwise contemplated under procedural
rules, Defendants must file an appropriate motion within 90 days of filing an
answer.
G. Plaintiff must, within 30 days of its filing, respond to the Martinez report. Plaintiff
must expect 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) (unpublished). This is the warning.
H. Plaintiff must, within 30 days of its filing, respond to a motion to dismiss or
summary-judgment motion. For Plaintiff's information and convenience, the Court has attached
the procedural rules governing summary-judgment practice.
I. Within 14 days of filing of Plaintiff's opposition, Defendants shall file a reply brief.
J. 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 on 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, will be struck from the
docket, subject to refiling with compliant evidentiary documents.
K. 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.
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L. When filing their answer or initial response, remaining defendants shall respond to
Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction. (ECF No. 15.)
DATED this 5th day of January, 2026.
BY THE COURT:
JUDGE DALE A. KIMBALL
United States District Court
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.
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(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.
(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
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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.
(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;
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(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 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.
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(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.
(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.
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(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.
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