Kirk v. Richards

Filing 42

ORDER to SHOW CAUSE signed by Magistrate Judge Kendall J. Newman on 7/8/11 ORDERING that plaintiff show cause within 21 days why the requests for admission identified herein should not be deemed admitted pursuant to Federal Rule of Civil Procedure 36(a)(3).(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY W. KIRK,

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Plaintiff,

No. CIV S-10-0373 KJN (TEMP) P

vs.
T. RICHARDS,
Defendant.

ORDER TO SHOW CAUSE
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Plaintiff is a California prisoner proceeding without counsel, with an action for

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alleged violation of civil rights under 42 U.S.C. § 1983. Defendant is an employee of the

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California Department of Corrections and Rehabilitation. Plaintiff is proceeding against

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defendant on a claim for failure to protect plaintiff from violence arising under the Eighth

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Amendment. Defendant has filed a motion for summary judgment.

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In a declaration attached to defendant’s motion, defendant’s counsel asserts the
following requests for admission were served upon plaintiff on July 30, 2010:

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1. RICHARDS did not violate your rights under the Eighth Amendment;

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2. RICHARDS did not violate your constitutional rights; and

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3. You suffered no injury as a result of the actions of RICHARDS.

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Defendant’s counsel asserts plaintiff never responded to these requests for admission.
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Under Federal Rule of Civil Procedure 36(a)(3), a request for admission is

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deemed admitted if a response to the request is not served within thirty days of service of the

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request. Defendant understandably argues that the court should deem the requests for admission

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identified above as admitted given plaintiff’s failure to file a timely response to the requests.

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Plaintiff has not indicated whether he received defendant’s requests for admission
or whether he served a timely response.

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Therefore, plaintiff will be ordered to show cause within twenty-one days why the

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requests for admissions identified above should not be deemed admitted pursuant to Federal Rule

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of Civil Procedure 36(a)(3). Plaintiff might show cause by establishing that he did not receive

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the requests for admission described above, or that he did receive them and served timely

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responses. However, plaintiff is cautioned that any evidence that he submits in support of his

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response, including affidavits, must be signed under penalty of perjury.

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With his response to the order to show cause, plaintiff might consider filing a

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motion for withdrawal of admissions under Federal Rule of Civil Procedure 36(b). Under that

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rule, the court can deem an admission withdrawn if it is established that withdrawal would

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“promote the presentation of the merits” of the claims before the court, and “if the court is not

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persuaded that it would prejudice the requesting party in . . . defending the action on the merits.”1

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff show cause within twenty-one days why the requests for admission

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identified herein should not be deemed admitted pursuant to Federal Rule of Civil Procedure

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36(a)(3).

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However, by indicating that plaintiff may consider filing such a motion, the undersigned
does not intend to imply how he would rule upon such a motion. In fact, one of the factors
would be the plaintiff’s alleged good cause for failing to respond to the request for admissions in
a timely manner.
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2. Plaintiff’s failure to respond to this order will result in a recommendation that

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defendant’s pending motion for summary judgment be granted.

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DATED: July 8, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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kirk0373.osc

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