The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding against defendant on a claim for alleged failure to protect him from violence arising under the Eighth Amendment. Discovery closed on November 12, 2010. (Dkt. No. 11.) On February 4, 2011, defendant filed a motion for summary judgment, citing the following admissions by plaintiff:
KIRK has admitted that RICHARDS did not violate his rights under the Eighth Amendment. (UF No. 31.) KIRK has admitted that RICHARDS did not violate his constitutional rights. (UF No. 32.)
KIRK has admitted that he suffered no injury as a result of the actions of RICHARDS. (UF No. 33.) (Dkt. No. 23-1 at 3-4.) Defendant stated that plaintiff had failed to respond to requests for admissions, and thus the foregoing was deemed admitted for purposes of summary judgment. (Id. at 7.) On February 25, 2011, plaintiff filed an opposition to the motion for summary judgment (Dkt. No. 28), and defendant timely filed a reply.
On July 11, 2011, the previously assigned magistrate judge issued an order stating: "Plaintiff has not indicated whether he received defendant's requests for admission or whether he served a timely response. Therefore, plaintiff will be ordered to show cause within twenty-one days why the [requests for admissions described above] should not be deemed admitted pursuant to Federal Rule of Civil Procedure 36(a)(3)." (Dkt. No. 42 at 2.)
On July 20, 2011, plaintiff filed a response to the order to show cause, stating that he never received any requests for admissions in the mail. (Dkt. No. 44 at 2.) Plaintiff's response was accompanied by a motion to withdraw his admissions. (Dkt. No. 43.)
On August 8, 2011, defendant filed an opposition to plaintiff's motion to withdraw. (Dkt. No. 46.) As to plaintiff's "lost-in-the-mail argument," defendant argues that the requests for admission were served upon plaintiff at his address on file and never returned as undeliverable. Defendant points out that plaintiff never responded to a follow-up letter informing him that, due to plaintiff's failure to respond, the RFAs were deemed admitted. Defendant further notes that, even when defendant based his opposition to plaintiff's motion for summary judgment on the admissions, plaintiff "did not address the issue or move to withdraw the admissions." Defendant argues that, having "sat on his hands," plaintiff should not be allowed to withdraw the admissions "at this late date." (Id. at 2, 5.)
For the reasons discussed below, however, the undersigned will grant plaintiff's motion to withdraw his admissions. The undersigned will also recommend that defendant's pending motion for summary judgment, which was drafted in reliance on these admissions, be dismissed without prejudice to renewing the motion after further discovery.
I. Requests for Admissions
In his pending motion for summary judgment, defendant asserts that plaintiff's failure to timely respond to requests for admission (hereinafter "RFAs") results in automatic admissions of the matters contained therein. Thus, defendant contends, there is no triable issue of fact as to whether he violated plaintiff's Eighth Amendment rights or caused injury to plaintiff. (Dkt. No. 23-1 at 3-4, 7.)
When a party fails to timely respond to requests for admissions, those requests are automatically deemed admitted. See Fed. R. Civ. P. Rule 36(a). "Any matter admitted under this rule is conclusively established unless the Court on motion permits withdrawal or amendment of the admission." Fed. R. Civ. P. Rule 36(a). Here, plaintiff failed to respond to defendant's RFAs (he claims because he never received them); nor did he respond to defense counsel's subsequent letter informing him that the RFAs were deemed admitted. (Dkt. No. 46-1 at 13 (Def.'s Ex. C).) In his opposition to defendant's motion for summary judgment, plaintiff attached an earlier brief submitted by defendant which argued that plaintiff had effectively admitted the RFAs, and penned in the margin "not true" and "contest." (Dkt. No. 29 at 9.) However, plaintiff did not claim that he never received the RFAs, nor did he explicitly ask to withdraw the admissions, at that time. Rather, although discovery closed on November 12, 2010, and the dispositive motion deadline was February 4, 2011, plaintiff did not move to withdraw his admissions until July 20, 2011. Thus, plaintiff not only failed to respond to the RFAs, but was remiss in waiting so long to file a motion to withdraw the admissions entered by default under Rule 36(a).
The Ninth Circuit, however, has recognized the authority of the district court to permit late responses to requests for admissions. See French v. United States, 416 F.2d 1149 (9th Cir.1968). Rule 36(b) "permits the district court to exercise its discretion to grant relief from an admission made under Rule 36(a) only when (1) 'the presentation of the merits of the action will be subserved,' and (2) 'the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits.'" Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007). "The first half of the test in Rule 36(b) is satisfied when upholding the admission would practically eliminate any presentation of the merits of the case." Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995). For example, in Conlon, the plaintiff failed to respond to requests for admissions and thereby admitted his damages were not caused by the wrongful acts of the defendant. Thus, "the deemed admissions eliminated any need for a presentation on the merits" and therefore satisfied the first prong of the Rule 36(b) test. Conlon, 474 F.3d at 622.
Under the second half of the Rule 36(b) test, "[t]he party relying on the deemed admission has the burden of proving prejudice." Conlon, 474 F.3d at 622. "The prejudice contemplated by Rule 36(b) is 'not simply that the party who obtained the admission will now have to convince the factfinder of its truth. Rather, it relates to the difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain evidence' with respect to the questions previously deemed admitted." Hadley, 45 F.3d at 1348, citing Brook Village N. Assocs. v. General Elec. Co., 686 ...