IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Christine M. Arguello

Civil Action No. 11-cv-02244-CMA-MJW

UNITED STATES OF AMERICA,

Plaintiff,

v.

RICHARD WILMER, and 

ROCK WEISS,

Defendants.

ORDER GRANTING MOTION TO STRIKE

This matter is before the Court on the United States’ “Motion to Strike Defendant

Weiss’ Motion for Summary Judgment.” (Doc. # 50.) On June 27, 2012, Defendant

filed a two-page “Motion for Summary Judgment.” (Doc. # 46.) In response, the United

States filed the instant motion, arguing that:

[D]efendant has failed to show ‘that there is no genuine dispute as to

any material fact [as alleged in the Complaint] and that he is entitled to

judgment as a matter of law.’ See Fed. R. Civ. P. 56(a). The defendant has not filed a “Statement of Undisputed Facts,” as required by

D.C.Colo.LCivR 56.1.A. and this Court’s Civil Practice Standard III.G.4. 

Moreover, the defendant has not stated under which rule or subsection

his motion . . . is filed. Civil Practice Standard III.F.

(Doc. # 50 at 1.) The Court agrees with the Government’s argument – and with its

request to strike Defendant’s motion. 

Case 1:11-cv-02244-RM-MJW Document 64 Filed 11/30/12 USDC Colorado Page 1 of 3
2

Although courts liberally construe pleadings filed by pro se litigants, it is not

“the proper function of the district court to assume the role of advocate . . . .” Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). In the instant case, Defendant has

failed to present a motion to which the United States can properly respond or upon

which the Court can properly rule. 

Moreover, assuming, as is apparently the case, that Defendant brought his

motion under Fed. R. Civ. P. 56(a), the Court would be required to deny it based on

Defendant’s contemporaneous assertions to the Court. Rule 56(a) states that “[t]he

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.” However, Defendant has asserted that “[t]here are significant genuine issues of

material fact . . . associated with and directly relevant to” the United States’ claims “as

well as Defendant Weiss’ defenses to the claims and allegations [the United States] has

asserted against him.” (Doc. # 41 at 10.) In fact, in another filing, submitted the same

day as his motion for summary judgment, Defendant reaffirmed his prior assertion that

“this matter will only be justly adjudicated by and through a process of continuing

litigation in which both parties have an opportunity to complete the discovery process,

present their fully-developed claims and defenses for proper consideration by the Court,

and avail themselves of the Court’s interpretation and application of key elements of the

laws that govern the issues that are at the heart of this case.” (Doc. # 45 at 6; see also

Doc. # 41 at 11.)

Case 1:11-cv-02244-RM-MJW Document 64 Filed 11/30/12 USDC Colorado Page 2 of 3
3

Accordingly, it is ORDERED that the United States’ “Motion to Strike Defendant

Weiss’ Motion for Summary Judgment” (Doc. # 50) is GRANTED. As such, Defendant’s

“Motion for Summary Judgment” (Doc. # 46) is hereby STRICKEN.

DATED: November 30 , 2012

BY THE COURT:

_______________________________

CHRISTINE M. ARGUELLO

United States District Judge

Case 1:11-cv-02244-RM-MJW Document 64 Filed 11/30/12 USDC Colorado Page 3 of 3