Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. The only claim remaining in this action is whether defendants were deliberately indifferent by denying plaintiff a particular medication for his eye condition, i.e., Muracel 1% eye drops. Currently pending is defendant Rohlfing's motion to withdraw admissions. For the reasons explained below, defendant's motion is granted.
Plaintiff served requests for admissions on defendant Rohlfing. Plaintiff's third request states, "[a]dmit that J. Rohlfing, M.D. denied the non-formulary request for the Muracel 1% on March 26, 2003." Dckt. 109, Stringer Declaration, Exhibit A (hereafter "Stringer Dec. Ex. A"), at 3. Defendant admitted this fact. Id. Plaintiff's fourth request stated, "[a]dmit that J. Rohlfing, M.D. continued to order the Muracel 1% after he denied the non-formulary request." Id.
Defendant also admitted this fact. The significance of these admissions was apparent in the papers filed in regard to defendant's summary judgment motion.
Defendant moved for summary judgment on the issue of whether a reasonable jury could find deliberate indifference to plaintiff's medical condition and specifically his need for drops to treat his eyes. In his opposition to defendants' motion for summary judgment, plaintiff submitted Rohlfing's answers to interrogatories which state that he lacked the experience to know, for therapeutic purposes, the difference between Muracel 1% and Muracel .5%. Records that Rohlfing submitted in support of his motion for summary judgment show that he prescribed the 1% solution on March 12, 2003, April 22, 2003, August 5, 2003, September 8, 2003, and September 22, 2003. Def. Rohlfing's Mot. for Summ. J., Ex. C, at 2-5, 9, 11, 13, 14. On April 22, 2003, Rohlfing noted "nonformulary filled out." Id. at 4. On August 27, 2003, he ordered a 0.5 % solution instead of the 1% solution. Mot. for Summ. J., Ex. C, at 10. On September 8, 2003, he noted that plaintiff had been receiving Murocel 0.5% solution and that plaintiff reported the 1% worked better. Id. at 11. Dr. Rohlfing "discussed this with the pharmacist who said he cannot get the 1%. The most his wholesaler has is 0.5%." Id. Therefore, although Rohlfing prescribed the 1% solution, he said that the 0.5% could be given if the other was unavailable. Id. Again, on September 22, 2003, defendant noted that plaintiff reported that the "1/2 % Murocel is not as good as the 1% although the 1%, according to pharmacy, cannot be obtained here." Id. at 13. He further noted, "[i]t can possibly be obtained at other institutions, there is no indication that it is necessary." Id.
On summary judgment, the district judge found that there was evidence that Dr. Rohlfing denied a request to obtain the eye drops from an outside pharmacy. The district judge further found that:
[P]laintiff has provided evidence that Dr. Rohlfing may have intentionally denied plaintiff the requisite strength eye drops. According to plaintiff, Dr. Rohlfing told plaintiff that he could not dispense Muracel 1% because the prison pharmacy did not keep it in stock. But plaintiff has provided evidence that Dr. Rohlfing could have obtained the eye drops from an outside pharmacy and that Dr. Rohlfing denied a request to do so.
March 29, 2007, Order at 2:16-20. Thus, whether Rohlfing denied a request to obtain the 1% solution from an outside pharmacy will be a key issue at trial and the admission in question have relevance.
Rule 36 of the Federal Rules of Civil Procedure prescribes when an admission may be withdrawn:
A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits.
Fed. R. Civ. P. 36(b). The Ninth Circuit's articulation of this standard is that, before an admission may be withdrawn: (1) presentation of the merits of the action must be subserved, and (2) the party who obtained the admission must not be prejudiced by the withdrawal.
Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995). The first part of the test "is satisfied when upholding the admissions would practically eliminate any presentation of the merits of the case." Id. at 1348. The second part is satisfied when the party who would benefit from the admission would face difficulty in proving his case, as by the unavailability of witnesses because of a sudden need to obtain ...