Nam Dang v. Sheriff, Seminole County Flor, et al

Filing

Opinion issued by court as to Appellant Nam Dang. Decision: Affirmed. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14842
________________________
D.C. Docket No. 6:14-cv-00037-GAP-TBS
NAM DANG,
by and through his Power of Attorney,
Vina Dang,
Plaintiff - Appellant,
versus
SHERIFF, SEMINOLE COUNTY FLORIDA,
OLUGBENGA OGUNSANWO, M.D.,
SANDRA WILT, RN,
BRENDA PRESTON-MAYLE, RN,
ALECIA SCOTT, LPN,
in their individual capacities, et al.,

Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 9, 2017)

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Before ROSENBAUM, BLACK and SENTELLE, * Circuit Judges.
SENTELLE, Circuit Judge:
Nam Dang’s health deteriorated while he was a pretrial detainee in the John E.
Polk Correctional Facility (the “Jail”). Ultimately, Dang was diagnosed with
meningitis, which caused him to suffer multiple strokes resulting in permanent
injuries. Dang alleges § 1983 liability against several health care providers for
providing inadequate medical care while Dang was in Jail and Seminole County
Sheriff Donald Eslinger in his official capacity as Sheriff. The district court
granted summary judgment for all the defendants. Dang brought the present
appeal. We affirm the judgment.
I.

BACKGROUND

A. Facts
On December 22, 2011, officers of the City County Investigative Bureau
(“CCIB”) stopped Dang’s car. Dang alleges the officers pulled him from his
vehicle, slammed him to the ground, and put a knee on his neck before ultimately
releasing him. After this incident, Dang started experiencing headaches and neck
pain, and started taking large doses of Aleve for relief. When the pain continued,

*

Honorable David Bryan Sentelle, United States Circuit Judge for the District of
Columbia, sitting by designation.
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Dang went to an emergency room on January 12, 2012. He declined the
recommended testing to rule out meningitis.
On January 26, law enforcement officers arrested Dang. Dang’s mother
advised the arresting officers that he was experiencing neck pain and headaches.
The officers did not allow Dang’s mother to give him any medication, but
permitted her to place a medicated patch on his neck before he was taken to Jail.
After booking, Dang was asked several questions about his health during his intake
screening. Dang’s vitals were normal, and he did not inform the intake officer that
he was experiencing neck pain or headaches.
On January 29, Dang was seen by Nurse Sandra Wilt, LPN, pursuant to a
“nurse sick call.” Dang advised Wilt that he was experiencing “[m]oderate to
severe head and neck pains,” possibly a “pinched nerve,” and a “[s]tiff neck.”
After checking Dang’s eyes and the range of motion of his neck, Wilt observed
that he had minimal pain. Wilt ordered Motrin and a muscle rub and put in an
order for Dang to be seen by a doctor to get a prescription for Robaxin, a muscle
relaxant.
Pursuant to Wilt’s order, Dang saw Dr. Ogunsanwo, MD, on February 1. Dang
stated he was experiencing headaches, neck pain, and neck stiffness. Dang told
Ogunsanwo about the incident with the CCIB when he was allegedly “yanked out”
of the car and “slammed on the ground.” After performing a physical exam on
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Dang, Ogunsanwo noted that Dang had full range of motion in his cervical spine
with mild pain elicited, normal gait, and no neurological deficit. His temperature
was 98.9. Ogunsanwo continued Dang on the Motrin and muscle rub ordered by
Wilt and prescribed Robaxin.
On February 7, Brenda Preston-Mayle, RN, evaluated Dang and completed a
History and Physical Health Evaluation. Dang informed Preston-Mayle about the
incident with the CCIB and that he had been experiencing head and neck pain. He
also described vision and hearing problems. Preston-Mayle took Dang’s vitals and
noted a temperature of 98.9. His weight was recorded as 132, eight pounds less
than his intake weight. Preston-Mayle offered to have Dang see a dental, mental,
or medical health doctor, but Dang declined.
On February 9, Alecia Scott, LPN, saw Dang. Dang stated he had a headache
and that “no one was doing anything for him.” Scott assessed Dang and checked
his vitals. She recorded that he had full range of motion to his neck with no
swelling or redness. Dang was ambulatory and did not appear to be in distress.
However, Dang had a fever of 101.5. Scott provided Dang with his Motrin and
Robaxin, advised him to drink plenty of fluids, and observed him for 15 to 20
minutes before releasing him to his pod.
Shortly after Dang left the medical unit, Scott went to the hallway and saw
Dang on the floor against the wall. An officer told Scott that Dang had “snatched
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away and slid down on the wall and sat on the floor.” Dang did not respond
verbally to the officer’s request that he “get up.” Scott found Dang’s behavior
“bizarre” and told him that if he continued to behave that way, he would end up on
suicide prevention. Dang got up and walked away. Scott later directed Dang to
mental health segregation for observation and directed that his blood pressure be
monitored for five days. Later that night, Scott checked on Dang and noted his
temperature was down to 97.9. His behavior and appearance were normal and she
noticed no problems.
On February 20, Sharyle Roberts, LPN, was notified of a “Code Orange”
medical emergency regarding Dang. Roberts documented that Dang’s pupils were
equal and reactive to light, his blood pressure was 136/85, and he had a
temperature of 99. Roberts noted that Dang appeared to be passed out, was
drooling, and exhibited fluttering eye syndrome. Roberts believed the behavior
was voluntary because Dang wiped the drool from his mouth and when the room
was quiet, he “would open his eyes, look around, and then close his eyes again.”
Roberts heard from Scott that he had engaged in similar behavior two weeks prior.
Roberts admitted Dang to the infirmary and referred him to both medical and
mental health doctors.
On February 21, Dr. Valerie Westhead, MD, a psychiatrist, conducted a mental
status examination of Dang. Dang had a headache, a drop in blood pressure, and
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felt odd, but denied hallucinations, delusions, or mood complaints. Westhead
concluded that Dang had an idiosyncratic reaction to the muscle relaxants but no
psychiatric issues. Westhead cleared Dang psychiatrically.
On February 22, Martha Densmore, RN, saw Dang during her morning rounds.
Dang was rocking back and forth in his hard plastic “boat” bed, but Densmore was
able to check his vitals and determined they were normal. Densmore testified that
he was alert, oriented, and voiced no complaints.
The next morning, Dang informed Densmore of his two-week headache. After
observing that Dang had white patches on his tongue, a 99-degree temperature, and
was unsteady when he attempted to stand, Densmore requested that Ogunsanwo
see Dang. A few hours later, Densmore observed Dang with his head in the toilet
trying to spit. He was incontinent and very weak. Densmore asked Ogunsanwo to
see him right away. Ogunsanwo examined Dang and suspected he could have
meningitis. Ogunsanwo directed that Dang be transported to the ER via a sheriff’s
patrol car, where he was diagnosed with meningitis several days later.
B. Procedure
Dang filed suit alleging § 1983 liability against the Jail’s health care providers
(excluding Westhead) for providing inadequate medical care and against Seminole
County Sheriff Donald Eslinger in his official capacity as Sheriff for employing
the customs that resulted in the alleged inadequate care. The district court granted
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summary judgment for the defendants. The court held, inter alia, that Dang’s
constitutional right to medical care was not violated because—even assuming a
serious medical need—the health care providers were not deliberately indifferent
to Dang’s needs. In light of the determination that Dang suffered no constitutional
deprivation, the court found no basis for supervisor liability against the Sheriff.
The court denied Dang’s subsequent motion to amend its judgment pursuant to
Rule 59(e). Dang appealed.
II. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo. Kingsland v. City of Miami,
382 F.3d 1220, 1225 (11th Cir. 2004). Summary judgment is appropriate where
“there is no genuine dispute as to any material fact and the movant is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(a). We “view the evidence and
all factual inferences therefrom in the light most favorable to the party opposing
the motion. All reasonable doubts about the facts should be resolved in favor of
the non-movant.” Clemons v. Dougherty Cty., 684 F.2d 1365, 1368–69 (11th Cir.
1982) (citations omitted).
B. Qualified Immunity
Qualified immunity protects government officials if “their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable

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person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“The purpose of this immunity is to allow government officials to carry out their
discretionary duties without the fear of personal liability or harassing litigation, . . .
protecting from suit all but the plainly incompetent or one who is knowingly
violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)
(internal quotation marks and citations omitted).
1. Discretionary Authority
To be entitled to qualified immunity, a public official “must first prove that he
was acting within the scope of his discretionary authority when the allegedly
wrongful acts occurred.” Id. (internal quotation marks and citations omitted). An
official acts within his discretionary authority if his actions (1) were undertaken
“pursuant to the performance of his duties,” and (2) were “within the scope of his
authority.” Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988); see also
Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004) (noting that an official
acts within his discretionary authority if he “perform[s] a legitimate job-related
function . . . through means that [are] within his power to utilize”).
All of the health care providers acted within the course and scope of their
discretionary authority in providing care to Dang. While Dang concedes that three
of the health care providers acted within their discretionary authority in caring for
him, he argues that the LPNs—Wilt, Scott, and Roberts—did not. However, the
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Seminole County Sheriff’s Office required the LPNs to, inter alia, complete
“physical assessments on inmates in accordance with medical protocol” and
conduct “daily nurse’s sick call.” This is consistent with the Florida Nurse
Practice Act, which provides that LPNs perform “selected acts, including the
administration of treatments and medications, in the care of the ill, injured, or
infirm” and “the promotion of wellness, maintenance of health, and prevention of
illness of others under the direction of a registered nurse [or] a licensed
physician . . . .” Fla. Stat. § 464.003(19). Indeed, Dang alleges in his complaint
that “[a]t all times material hereto” each LPN “was acting under the color of state
law within the course and scope of her employment . . . and was empowered by the
state of Florida to provide nursing services . . . .” Each LPN acted within the scope
of her delegated authority, so each exercised discretionary authority in caring for
Dang.
2. Constitutional Violation
“Once the defendant establishes that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show that qualified immunity is not
appropriate.” Lee, 284 F.3d at 1194. A court evaluating a claim of qualified
immunity must “determine whether the plaintiff has alleged the deprivation of an
actual constitutional right at all, and if so, proceed to determine whether that right

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was clearly established at the time of the alleged violation.” Conn v. Gabbert, 526
U.S. 286, 290 (1999).
As a pretrial detainee, Dang alleges inadequate medical care under the
Fourteenth Amendment rather than the Eighth Amendment. See Mann v. Taser
Int’l, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009); Goebert v. Lee Cty., 510 F.3d
1312, 1326 (11th Cir. 2007). Nevertheless, Dang’s claims are evaluated under the
same standard as a prisoner’s claim of inadequate care under the Eighth
Amendment. Goebert, 510 F.3d at 1326. To prevail on his § 1983 claim for
inadequate medical treatment, Dang must show (1) a serious medical need; (2) the
health care providers’ deliberate indifference to that need; and (3) causation
between the health care providers’ indifference and Dang’s injury. Id. 1
a. Serious Medical Need
A serious medical need is “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Farrow v. West, 320 F.3d 1235,
1243 (11th Cir. 2003) (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176,
1187 (11th Cir. 1994)). In either case, “the medical need must be one that, if left
unattended, poses a substantial risk of serious harm.” Id. (citations, internal
1

Dang argues that following Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015), a pretrial
detainee alleging constitutionally deficient medical care need not show deliberate indifference.
But Kingsley involved an excessive force claim, and we are not persuaded that its holding
extends to claims of inadequate medical treatment due to deliberate indifference.
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quotations marks, and alteration omitted). As did the district court, we assume for
purposes of summary judgment that Dang demonstrated a serious medical need.
b. Deliberate Indifference
To establish deliberate indifference, Dang must prove (1) subjective knowledge
of a risk of serious harm; and (2) disregard of that risk (3) by conduct that is more
than mere negligence. McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999).
Subjective knowledge of the risk requires that the defendant be “aware of facts
from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Caldwell v. Warden, FCI Talladega,
748 F.3d 1090, 1099–1100 (11th Cir. 2014). “[I]mputed or collective knowledge
cannot serve as the basis for a claim of deliberate indifference. Each individual
defendant must be judged separately and on the basis of what that person kn[ew].”
Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008) (citations omitted).
An official disregards a serious risk by more than mere negligence “when he
[or she] knows that an inmate is in serious need of medical care, but he [or she]
fails or refuses to obtain medical treatment for the inmate.” Lancaster v. Monroe
Cty., Ala., 116 F.3d 1419, 1425 (11th Cir. 1997), overruled on other grounds by
LeFrere v. Quezada, 588 F.3d 1317, 1318 (11th Cir. 2009). Even when medical
care is ultimately provided, a prison official may nonetheless act with deliberate
indifference by delaying the treatment of serious medical needs. See Harris v.
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Coweta Cty., 21 F.3d 388, 393–94 (11th Cir. 1994) (citing Brown v. Hughes, 894
F.2d 1533, 1537–39 (11th Cir. 1990)). Further, “medical care which is so cursory
as to amount to no treatment at all may amount to deliberate indifference.” Mandel
v. Doe, 888 F.2d 783, 789 (11th Cir. 1989) (citations omitted). However, medical
treatment violates the Constitution only when it is “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness.” Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)
(citation omitted).
Dang alleges that each health care provider was aware of Dang’s “symptoms
consistent with meningitis” and “knew that meningitis was a serious and lifethreatening condition that warrants immediate medical treatment.” Nonetheless,
Dang claims, each provider “ignored clear signs and symptoms of Nam Dang’s
serious medical needs and life-threatening condition which prevented Nam Dang
from timely getting the critical medical care he required . . . .” We consider those
claims as to each defendant.
i. Nurse Wilt
Wilt encountered Dang on one occasion, January 29, 2012, when he informed
Wilt of his “moderate to severe head and neck pains,” “strain[ed] neck muscle,”
“possible pinched nerve,” and “stiff neck.” Wilt did not ignore Dang’s symptoms,
but performed an assessment by checking his eyes and the rotation of his neck.
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After the assessment, Wilt ordered that Dang take Motrin and a muscle rub before
referring him to Dr. Ogunsanwo. Dang argues that Wilt should have taken his vital
signs, but does not suggest why that was necessary or would have been helpful.
Indeed, Dang’s vitals were taken 36 hours later with normal results. The failure to
take Dang’s vitals under these circumstances cannot be said to be so grossly
incompetent or inadequate as to “shock the conscience.” Rogers, 792 F.2d at 1058.
Wilt was responsive to Dang’s complaints and provided treatment she deemed
appropriate at that time. Wilt did not violate Dang’s constitutional rights and is
therefore entitled to qualified immunity.
ii.

Nurse Preston-Mayle

Dang alleges that Preston-Mayle was deliberately indifferent to his medical
needs during their encounter on February 7, 2012, when Dang informed her of his
head and neck pain as well as vision and hearing problems. Dang alleges that
Preston-Mayle failed to recognize Dang’s symptoms and returned him to general
population without attempting “to further evaluate his deteriorating condition.”
But Preston-Mayle took Dang’s vitals, which were within normal range. She noted
that Dang was coherent, alert, oriented, and even joked with her. In short, Dang
presented no signs that were “so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Goebert, 510 F.3d at 1326.
Nevertheless, Preston-Mayle offered to send Dang to a medical doctor, which he
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declined. The undisputed evidence shows that Preston-Mayle was not deliberately
indifferent to Dang’s medical needs and is therefore entitled to qualified immunity.
iii.

Nurse Scott

Dang alleges that Scott was deliberately indifferent to his medical needs during
their encounter on February 9, 2012, when Dang told her of his headaches and
neck pain. Scott assessed Dang and took his vitals. When she saw that Dang had a
fever of 101.5, she administered his prescribed medication. After administering
the medication, she held Dang in the infirmary for observation for at least fifteen
minutes, advised him to drink fluids, and put in orders for his blood pressure to be
monitored for five days. When Dang slid to the floor after leaving the infirmary,
Scott became concerned about potential medical health issues and referred him to
“DPod” for mental health observation, where nurses would see him twice daily.
Scott followed up with Dang later that evening to check his temperature, which
was back within the normal range. At that time, Dang stated that he was okay and
his behavior and appearance were normal. Scott’s care does not “shock the
conscience”; indeed, Dang’s symptoms improved under her care.
Dang takes issue with the fact that Scott “mov[ed] him to segregation without
instituting the segregation assessment protocol.” But it is not clear how this
assessment would have shed light on Dang’s condition or prompted additional
care, and the evidence suggests that such assessments are not used to identify and
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assess the health of detainees. A violation of Jail policy does not in itself rise to
the level of deliberate indifference. See Andujar v. Rodriguez, 486 F.3d 1199,
1204 n.5 (11th Cir. 2007). Dang also alleges that Scott was present for the Code
Orange on February 20, 2012, a fact that is in dispute. But even if Scott was
present for that encounter, she was not deliberately indifferent for the reasons
explained below. Scott is therefore entitled to qualified immunity.
iv.

Nurse Roberts

During the Code Orange on February 20, 2012, Roberts observed Dang
appearing unconscious, drooling, non-verbal, and unable to sit up. Roberts
assessed Dang, noting that his vitals were normal and his pupils were equal and
reactive to light. Although Roberts may have incorrectly believed Dang’s behavior
was voluntary, “mere negligent” misdiagnosis is not a constitutional violation.
Howell v. Evans, 922 F.2d 712, 719 (11th Cir. 1991). And despite her belief, she
admitted Dang to the infirmary where he would be seen by both medical and
mental health doctors. Based on this undisputed evidence, Roberts was not
deliberately indifferent to Dang’s medical need.
Dang asserts that Roberts failed to check him that night, leaving him to
“languish[]” in his cell and suffer additional harm. Although Dang was observable
in the infirmary, there is no evidence that he made any complaints or that his
condition deteriorated. Dang points to the testimony of his former cell-mate,
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Anthony Laird, and his girlfriend, Sarah Agurkis, in support of his claim that his
condition deteriorated in his infirmary cell that night. However, Laird’s affidavit is
not clear on dates, and Dang references it in regard to events on February 20, 21,
and 23. And Agurkis testified that she “believe[s]” she visited him on February
19, so any direct observations she made cannot support his claims regarding
February 21.
Because Roberts was not deliberately indifferent to Dang’s medical need, she
is entitled to qualified immunity.
v.

Nurse Densmore

Densmore examined Dang on February 22, 2012. Although he exhibited
weakness, Dang was sitting up and Densmore noted that his vitals were normal and
he was alert and oriented. Dang did not voice complaints about his pain. The next
day, after observing that Dang had white patches on his tongue, a 99-degree
temperature, and was unsteady on his feet, Densmore requested that Ogunsanwo
see Dang. When, a few hours later, Densmore observed Dang with his head in the
toilet, incontinent and weak, she requested that Ogunsanwo see Dang immediately.
Far from ignoring Dang’s medical need, Densmore referred Dang to a medical
doctor, and then ensured that the doctor came immediately when Dang’s condition
worsened. Densmore’s decision not to take further action under these

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circumstances, even in the light most favorable to Dang, was not a constitutional
violation. Densmore is therefore entitled to qualified immunity.
vi.

Doctor Ogunsanwo

Ogunsanwo first interacted with Dang on February 1, 2012, when Dang
complained of headaches and neck pain. When the results of Dang’s physical
exam were normal, Ogunsanwo continued Dang on Motrin and a muscle rub and
prescribed a muscle relaxant for his pain. Dang seems to have abandoned any
challenge relating to Ogunsanwo’s actions on February 1, but regardless, his
undisputed actions were reasonable and do not support a finding of deliberate
indifference.
Ogunsanwo next interacted with Dang on February 23, 2012. After examining
Dang, Ogunsanwo immediately directed him transported to the ER in a patrol car.
The only issue that Dang raises before us is that he remained in the infirmary for
over 40 minutes before being transported to the hospital, but he cites no relevant
evidence in support of his conclusion. Evidence suggests that there was about a
15-minute delay in Dang’s transport. In this context, a 15-minute delay is not a
constitutional violation. See Harris, 21 F.3d at 393-94.
Dang also suggests that Ogunsanwo indirectly learned of Dang’s deteriorating
condition on February 13, 2012, when he approved an order for blood pressure
checks due to Dang’s fever. Fever, Dang claims, is inconsistent with Ogunsanwo’s
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initial diagnosis of muscular skeletal pain and indicates a more serious condition.
But even assuming Ogunsanwo knew Dang had a one-time fever, his actions were
not deliberately indifferent. See Farmer, 511 U.S. at 838 (finding no liability for
“an official’s failure to alleviate a significant risk that he should have perceived but
did not”).
Because Ogunsanwo was not deliberately indifferent to Dang’s medical needs,
he is entitled to qualified immunity.
C. Supervisor Liability
Dang argues that the policies and practices of Donald Eslinger, Sheriff for
Seminole County, caused the violation of his constitutional right to adequate
medical care. In light of the Court’s determination that there was no constitutional
deprivation, there is no basis for supervisor liability. See Gish v. Thomas, 516 F.3d
952, 955 (11th Cir. 2008); Beshers v. Harrison, 495 F.3d 1260, 1264 n.7 (11th Cir.
2007). Accordingly, the district court’s grant of the Sheriff’s motion for summary
judgment is affirmed.
III. CONCLUSION
For the reasons set forth above, the district court’s decision granting the
defendants’ motions for summary judgment is affirmed.

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