Murrell v. Casterline, et al
MEMORANDUM ORDER granting 148 Motion to withdraw or amend their admissions.ORDERED defendants shall amend their answers to plaintiff's request for admissions on or before 7/6/09. ORDERED defendants shall certify to the court in writing on or before 7/6/09 that they have amended their answers to plaintiff's requests for admissions and sent their amended answers to him. Signed by Magistrate Judge James D Kirk on 06/22/2009. (crt,Leleux, M)
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION GETZELL J. MURRELL, SR., Plaintiff VERSUS CARL CASTERLINE, et al., Defendants JUDGE DEE D. DRELL MAGISTRATE JUDGE JAMES D. KIRK CIVIL ACTION SECTION !~p!~ NO. CVO3-0257-A
MEMORANDUM ORDER ~efore the court is defendants' motion to withdraw or amend rule 36(b) (Doc.
their deemed admissions pursuant to Fed.R.Civ.P. 148) Plaintiff Murrell filed a complaint
filed pursuant to ~ivens 403
v. Six Unknown Named Agents of the Federal ~ureau of Narcotics, U.S. 388, 91 S.Ct. 1999 (1971), in forma pauperis, 2004 (Doc.
on January 10,
2004, and amended on September 24, 21, 2004 (Doc. Item 29)
Item 22) and October defendants are Carl
Penitentiary in Pollock, Louisiana
(~"USP-Pollock")), Robert Tapia
(~"Tapia") (current warden of USP-Pollock), and correctional officers Cindy Pike (~"Pike"), Steve Les M. Phillips Cannon Aycock (~"Aycock"), Harris Frederick Lane Hatchett Jefferson Gremillion
(~"Hatchett"), (~"Jefferson"), (~"Gremillion") named
In his sole remaining claim, Murrell alleges the were deliberately indifferent to his serious
needs by deliberately exposing Murrell, tobacco smoke (~"ETS") and 2001, failing
a non-smoker, to enforce
environmental prison smoking
recommendation to avoid ETS. ETS caused him to suffer
Murrell alleges that his exposure to migraine headaches, dizziness, hypertension, eye and
irritation, coughing. damages. ~ruceton
For relief, Murrell asks for a jury trial and monetary Murrell is presently incarcerated in USP-Hazelton in
Mills, West Virginia.
Defendants filed a motion for summary judgment (Doc. Item 117) which was denied on appeal it's per curiam opinion (Doc. that 138)
The Fifth Circuit noted in response to Murrell's
request for admissions was untimely and, were deemed admitted pursuant to
those matters 36 (a) (3)
the Fifth Circuit
further stated in footnote 1 that the
district court could, on motion, permit the deemed admissions to be withdrawn or amended if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in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
(quoting Fed.R.Civ.P. rule 36(b)).
Circuit added that, even if the deemed admissions were set aside, summary judgment would still be inappropriate in this case. After the case was remanded to this court, defendants filed a motion to withdraw or amend their ~"deemed admissions" (Doc. 148)
filed a brief opposing the motion.
Defendants' motion is
now before the court for consideration. Law and Analysis Fed.R.Civ.P. rule 36 provides for deemed admissions as a
sanction for untimely responses to requests for admissions. v. Webster Parish, 254 F.3d 1081 (Sth Cir. 2001)
Any matter on motion
admitted is conclusively established unless the court permits rule withdrawal Le v.
or amendment Cheesecake 2007)
Fed.R.Civ.P. Inc., 2007 WL
Although the court has considerable or amendment, the 36(b). moving Le, a deemed admission satisfies the
discretion to permit withdrawal may only be set withdrawn forth when
party 2007 WL
715260 at *2, 119
citing American Auto Ass'n v. AAA Legal Clinic,
930 F.2d 117,
Cir, 1991) Under Rule 36(b), the court may permit withdrawal or amendment
of the action will
served thereby and (2)
the party who obtained the admission fails
to satisfy the court that withdrawal or amendment will prejudice that party Fed.R.Civ.P. 36(b)'s in maintaining the action 36(b). Le, or defense *2. the on the merits.
2007 WL 715260 at been satisfied,
Even when Rule district court
deny a request
to withdraw or amend
admission. 415, 419
Le, 2007 WL 715260 at *2, citing In re Carney, 258 F.3d Cir. 2001) have
It is proper to consider whether denying the practical effect of eliminating any
presentation of the merits of the case in determining whether Rule 36(b)'s first requirement is met. Other relevant factors to be
considered are whether the movant has demonstrated that the merits would be served by advancing evidence showing the admission is
contrary to the record of the case, that the admission is no longer true because of changed circumstances, that through an honest error a party has made an improvident admissions, seeking withdrawal withdrawal. is at fault or has been and whether the party diligent in seeking
Le, 2007 WL 715260 at *2, and cases cited therein. requires the district court to consider only the the merits aside of the deemed case and prejudice It to the not
Rule 36(b) presentation defendant of
require an explanation for untimeliness. The purpose of Federal Rule 36(a) is
Allen, 254 F.3d at 1081. to expedite trial by
establishing certain material facts as true and thus narrowing the range of issues for trial. F.2d 1242, 1245
Asea, Inc. v. So. Pac. Transp. Co., 1981)
it does not serve
interests of justice to automatically determine all the issues in 4
a party because
deadline is missed.
This is especially true if the opposing party Yet too liberal a of
is not prejudiced by allowing untimely responses. sufferance by the court valuable policy of a litigant's by Rule sloth
would undermine elimination
uncontested issues and expedition of trial. a balance between the interests of
The court must strike and diligence in
litigation. 113, 114
Hadra v. Herman slum Consulting Engineers,
(the court held that defendant's failure
to comply with Rule 36(a) made it fair to shift to it the burden of showing the court which of its denials were supported by
substantial evidence) In the case at bar, defendants mailed their responses to 9),
Murrell's request for admissions on May 2, 2006 (Doc. 125, Ex. about 19 days late. Therefore,
the request was deemed admitted.
However, as Murrell points out, the request to withdraw the deemed admissions was not made until two years after that. Although admissions Murrell concedes he made a lot of requests for
(an average of thirty to each of the nine defendants), correctly, that defendants did not object or request to answer. Moreover, as Murrell
an extension of time
further contends, there was no reason for defendants' admissions to 5
be late since defendants
did nothing except write an unqualified including those asking the (see every
~"Denied" under every admission request, defendants to admit Doc. 125, Exs. 9, their names 10)
and job titles with the ~OP without explanation to
admission request indicates that the answers were not made in good faith. However, defendants' curt denial of every request for
admission does not assist the court trial.
in narrowing the issues for
The interests of justice will be better served in this case
if the defendants are afforded an opportunity to answer Murrell's requests for admissions in good faith. Circuit's judgment opinion, due to defendants are of As pointed out in the Fifth not entitled fact to a summary exist
regardless of whether their deemed admissions are withdrawn or not (Doc. 138, Footnote 1)
Murrell will not be prejudiced
by permitting defendants to amend their answers to his requests for admissions. Accordingly, IT IS ORDERED that defendants' motion to amend
their deemed admissions is GRANTED. IT IS FURTHER ORDERED that defendants SHALL AMEND their
answers to plaintiff's requests for admissions on or before July 6, 2009. 6
IT IS FURTHER ORDERED
court in writing, on or before July 6, 2009, that they have amended their answers to Murrell's requests for admissions and sent their amended answers to him. THUS DONE AND SIGNED in Alexandria, Louisiana, on this 22~ day of June, 2009.
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