The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING DEFENDANT BONILLA'S MOTION TO SET ASIDE (DOC. 78)
Plaintiff Jean-Pierre K. Thomas ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Bonilla and Garcia for violation of the Eighth Amendment. Pending before the Court is Defendant Bonilla's motion to set aside his admissions, filed August 2, 2011. Doc. 78. Plaintiff filed an opposition to this motion on August 16, 2011. Doc. 81. Defendant filed a reply on August 25, 2011. Doc. 83. The matter is submitted pursuant to Local Rule 230(l).
On August 3, 2010, the Court issued an order regarding Plaintiff's January 19, 2010 motion to compel. Order, Doc. 41. Plaintiff's motion was granted in part, insofar as Defendant Bonilla had failed to timely respond to Plaintiff's request for admissions and thus the admissions were self-effectuating pursuant to Rule 36(a) of the Federal Rules of Civil Procedure.*fn1 Order 2:1-10. The Court informed Defendants that relief is possible pursuant to Rule 36(b). Id. at 2:10-16. Defendant Bonilla now moves to withdraw the admissions and to provide a late response.
Pursuant to Rule 36(b) of the Federal Rules of Civil Procedure, A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.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. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding.
Defendant contends that 1) none of Plaintiff's admissions address the core issues in this action, and 2) setting aside the admissions will promote the presentation of the case on its merits. Def.'s Mot. 4:5-21. Plaintiff contends that Defendant and Defendants' counsel failed to timely respond to Plaintiff's request for admissions on several occasions. Pl.'s Opp'n.
Admission No. 1: ADMIT that while you were a correctional officer at Kern Valley
State Prison on October 5, 2006 that you and officer M. Garcia slammed plaintiff down on the ground twice while he was handcuffed causing half of his skin to come off his forehead by B Facility 2 building SHU yard and a little ways from it.
Admission No. 2: ADMIT that while you were a correctional officer at Kern Valley
State Prison on October 5, 2006 you seen Plaintiff with half the skin off his forehead and some skin off of his nose and or so forth. Admission No. 3: ADMIT that while you were a correctional officer at Kern Valley
State Prison on October 5, 2006 that you, officer M. Garcia, and officer Fernandes approached Plaintiff while he was in the B Facility clinic. At that time officer Garcia asked Plaintiff how you want to handle it. Plaintiff said you tell me officer Garcia motioned to Plaintiff's head saying for him to say he got that while trying to get up and he then wouldn't write him a bad 115 but he was going to AdSeg. At that time Plaintiff you said you slammed me. Office
M. Garcia then backed up looking at prisoners in the holding cage as if he had witnesses. At this time you said you were going to say Plaintiff kicked you and you, Officer ...