The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge Western District of New York
Before the Court is the plaintiff's motion to deem certain facts admitted by the defendants in this case (Docket No. 85).
The plaintiff, Injah Tafari ("Tafari"), commenced this action alleging claims challenging the conditions of his confinement and asserting excessive force claims against various correction officers at the Auburn Correctional Facility, the Southport Correctional Facility, and the Attica Correctional Facility.*fn1 (Docket No. 15, Amended Complaint). Hon. Richard J. Arcara dismissed the plaintiff's claims relating to the conditions of confinement, as well as certain supervisory claims against corrections officials. (Docket No. 19 at pages 11 and 13). The plaintiff was permitted to proceed with the following claims: (1) excessive force claims against defendant Richard Cox*fn2 , a correctional officer at the Auburn Correctional Facility (Amended Complaint at ¶¶ 19-22); (2) excessive force claims against defendants Randy Vaness, Robert Held, Franklin Zywicki, Daniel Hable, Timothy Harris, and James Casselbery, all corrections officers at the Southport Correctional Facility (Amended Complaint at ¶¶ 26-30); (3) a failure to protect claim against defendants Gregory Manos and Richard Donahue, corrections officers at the Southport Correctional Facility (Amended Complaint at ¶31)*fn3 ; and (4) a claim against defendant James Gilmore, a correctional officer at the Attica Correctional Facility, who allegedly threatened the plaintiff and instigated the alleged assault by Vaness and other defendants (Amended Complaint at ¶¶ 12, 18). (Docket No. 19 at page 12).
Counsel was appointed to represent the plaintiff in this matter and a scheduling order was entered allowing for discovery and other pretrial proceedings. (Docket No. 73).*fn4 The parties subsequently advised the Court that significant efforts have been made to reach a settlement in this case. (See Docket Nos. 82, 84). It appears that the resolution of whether the defendants have admitted, for the purposes of this lawsuit, that the plaintiff was not a confidential informant may impact the parties ability to reach a settlement in this case.
Motion to Deem Fact Admitted
The plaintiff seeks to have it deemed admitted that (a) neither the plaintiff nor any of his visitors ever gave the defendants any information about other prisoners at Southport Correctional Facility or any facility and (b) that the defendants wrongly named the plaintiff and his visitors as a "Rat" or confidential informant. (Docket No. 85 at ¶ 1).*fn5
It is not disputed that the plaintiff, then pro se, served a Request for Admissions upon the defendants on April 29, 2010 requesting, among other things, that the defendants admit that neither he nor his visitors gave the defendants information about other prisoners and that the defendants wrongly named him a "Rat." (Docket No. 31). It is also undisputed that the defendants did not respond to the Request for Admissions in any manner.
Pursuant to Rule 36(a)(3), a "matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney." Rule 36(b) provides:
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.
Generally, it has been held that Rule 36 is self-executing, and that it is unnecessary for the Court to deem a matter admitted. Brumby v. Sharinn & Lipshie, P.C., 2011 WL 6396385 (E.D.N.Y.,2011)(As to the plaintiff's request that her requests to admit be deemed admitted based on the defendant's failure to timely respond, such action is not necessary. Rule 36 is self-executing. If the requests were duly served and not timely responded to, they are deemed admitted.); Allstate Ins. Co. v. Howell, 2010 WL 5313760 (E.D.N.Y.,2010)(A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection. Once admitted, the matter that is the subject of a request for admission is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. The defendants have made no such motion. Accordingly, the matters covered in the plaintiffs' requests for admissions are conclusively established.)
The defendants argue that they were not obligated to respond to the Request for Admissions because Rule 26(b) of the Local Rules for the Western District of New York states that a party may not seek discovery prior to the Rule 26(f) conference absent the agreement of the parties or a Court order. (Docket No. 87 at ¶¶5-9). However, because the plaintiff was pro se at the time the Request for Admissions was served, the mandatory disclosure and conference requirements under Rules 26(a) and (f) of the Federal Rules of Civil Procedure (which serve as the basis for Local Rule 26(b)) do not apply. See Rule 26(a)(1)(B) exempting pro se actions from disclosure requirements; and Rule 26(f)(1) exempting such cases from the conference requirement. Thus, the defendants cannot justify a failure to respond to a discovery request upon the fact that the discovery request was served prior to a Rule 26(f) conference, when, as here, a Rule 26(f) conference was not required.
In light of the fact that the defendants did not respond to the Request for Admissions, and have not moved to withdraw or amend any admission under Rule 26(b), the Court finds that pursuant to the self-executing language of Rule 36(a)(3) the defendants have admitted that neither the plaintiff, nor his visitors, "gave the defendants any information about another inmate at Southport Correctional Facility or any facility" and that the plaintiff was "wrongly named a 'Rat' by the defendants." Pursuant to Rule 36(b) these ...