Fuller v. Granville et al

Filing 11

ORDER (Service Packet), Plaintiff's Application to Proceed In Forma Pauperis 2 is granted; Plaintiff's Motion for a Preliminary Injunction and Temporary Restraining Order 6 is denied without prejudice; Count One is dismissed without pre judice; Defendants Granville, Abbott, and Alger are dismissed without prejudice; Defendant Hansdall must answer the relevant portion of Count Two; the Clerk must send Plaintiff a service packet including the Complaint 1 , this Order, and both summon s and request for waiver forms for Defendant Hansdall; Plaintiff must complete and return the service packet to the Clerk within 21 days; this matter is referred to Magistrate Judge James F Metcalf all pretrial proceedings. Signed by Judge David G Campbell on 9/12/14. (REW)

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1 2 MDR WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Samuel Louis Fuller, 10 11 12 No. CV 14-0020-PHX-DGC (JFM) Plaintiff, vs. ORDER Kari Jill Granville, et al., 13 Defendants. 14 15 16 Plaintiff Samuel Louis Fuller, who is confined in the Maricopa County Fourth 17 Avenue Jail, has filed a pro se civil rights Complaint (Doc. 1) pursuant to Bivens v. Six 18 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),1 and an 19 Application to Proceed In Forma Pauperis (Doc. 2). He has also filed a Motion for a 20 Preliminary Injunction and Temporary Restraining Order (Doc. 6). The Court will grant 21 the Application to Proceed, will order Defendant Hansdall to answer a portion of Count 22 Two of the Complaint, will dismiss the remaining claims and Defendants, and will deny 23 the Motion for a Preliminary Injunction and Temporary Restraining Order. 24 .... 25 26 27 28 TERMPSREF 1 Although Plaintiff brought his Complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), he has only sued individuals who are acting under color of state law. Therefore, the Court will construe his claims as brought pursuant to 42 U.S.C. § 1983. See Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (“Actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.” (quoting Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991))). 1 I. Application to Proceed In Forma Pauperis and Filing Fee 2 Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. 3 § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). 4 The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be 5 collected monthly in payments of 20% of the previous month’s income credited to 6 Plaintiff’s trust account each time the amount in the account exceeds $10.00. 28 U.S.C. 7 § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government 8 agency to collect and forward the fees according to the statutory formula. 9 II. Statutory Screening of Prisoner Complaints 10 The Court is required to screen complaints brought by prisoners seeking relief 11 against a governmental entity or an officer or an employee of a governmental entity. 28 12 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff 13 has raised claims that are legally frivolous or malicious, that fail to state a claim upon 14 which relief may be granted, or that seek monetary relief from a defendant who is 15 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 16 A pleading must contain a “short and plain statement of the claim showing that the 17 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 18 does not demand detailed factual allegations, “it demands more than an unadorned, the- 19 defendant-unlawfully-harmed-me accusation.” 20 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 678 22 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 23 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 24 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual 25 content that allows the court to draw the reasonable inference that the defendant is liable 26 for the misconduct alleged.” Id. “Determining whether a complaint states a plausible 27 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw 28 on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff’s TERMPSREF -2- 1 specific factual allegations may be consistent with a constitutional claim, a court must 2 assess whether there are other “more likely explanations” for a defendant’s conduct. Id. 3 at 681. 4 But as the United States Court of Appeals for the Ninth Circuit has instructed, 5 courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 6 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less 7 stringent standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. 8 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 9 III. 10 Complaint In his two-count Complaint, Plaintiff sues the following Defendants: court- 11 appointed defense attorney Kari Jill Granville, Maricopa County Sheriff’s Office 12 (MCSO) Sergeant Hansdall, MCSO Field Training Officer Abbott, and MCSO 13 Visitation/Inmate Property Department Officer Alger. 14 In Count One, Plaintiff alleges that he has received “ineffective advice of 15 counsel”, in violation of his Fourth, Fifth, and Fourteenth Amendment rights, and has 16 been subjected to a “[c]onspiracy to co[]erce incompetency during trial.” Plaintiff asserts 17 that when Defendant Granville initially met with Plaintiff, she told him that his case was 18 going to be “unbelievable” if Plaintiff took the stand and testified and that the testimony 19 of nine police officers would likely be more credible. Plaintiff states that Defendant 20 Granville suggested that Plaintiff make his testimony “beli[e]vable,” which Plaintiff 21 construed to mean that he should either not testify or testify falsely. Plaintiff contends 22 that when Plaintiff stated that he would testify truthfully, Defendant Granville explained 23 to Plaintiff that “[t]his system is nothing more th[a]n a ‘big pimp’ and unfortunately 24 [Plaintiff was] on the ‘whore’ end of the spectrum in this instance.” Plaintiff claims he 25 was injured because Defendant Granville tried to persuade him to either fabricate his 26 testimony or waive his right to testify and “disrespected [him] by calling [him] a Hoe!” 27 In Count Two, Plaintiff alleges that he has been subjected to cruel and unusual 28 punishment in violation of the Eighth and Fourteenth Amendments. Although Plaintiff’s TERMPSREF -3- 1 rambling allegations are difficult to follow, it appears he is raising two separate claims. 2 First, it appears that Plaintiff is alleging that he was subjected to retaliation by 3 Defendants Alger and Abbott. Plaintiff asserts that after he filed a grievance regarding 4 Defendant Alger and informed Defendant Alger that he had filed two civil rights lawsuits 5 against another officer, Defendant Alger told Plaintiff that he should not attempt to 6 intimidate MCSO staff. Plaintiff states that he then noticed that he had named Defendant 7 Alger as a defendant in another lawsuit and then spoke to Defendant Alger regarding 8 Defendant Alger’s statement that Plaintiff should not attempt to intimidate staff. 9 Plaintiff contends that Defendant Alger directed other sergeants to target and 10 harass Plaintiff. He claims that the following day, Defendant Alger retaliated against 11 Plaintiff by serving Plaintiff with a disciplinary action report/write-up in which he 12 accused Plaintiff of using “laud” language in an inmate request form. He also asserts that 13 two shift sergeants approached Plaintiff’s cell and harassed Plaintiff by making him stand 14 up and show his face while he was sleeping or by telling him to remove a piece of paper 15 from his wall. 16 Defendant Abbott repeatedly kicked Plaintiff’s cell door and demanded that Plaintiff 17 show his face, although Plaintiff was asleep and his identification was in plain view. Plaintiff claims that Plaintiff also contends that on one occasion, 18 Second, Plaintiff alleges that he was subjected to excessive force by Defendant 19 Hansdall. Plaintiff claims that Defendant Hansdall directed other officers to use chemical 20 devices and fire mace, pepper spray bullets, gas fogger bombs, and a taser at Plaintiff in 21 response to Plaintiff’s refusal to follow a nurse’s instruction that Plaintiff chew in her 22 presence a chewable Tums tablet. He also contends that after the medical department 23 “cleared” Plaintiff, Defendant Hansdall instructed other detention officers to put Plaintiff 24 in a “contaminated” holding cell for three hours. 25 Hansdall knew the cell was contaminated and that the holding cell was not well- 26 ventilated and the toilet was filled with urine and feces and would not flush. Plaintiff 27 also claims Defendant Hansdall was acting vicariously for Defendant Alger and another 28 officer. TERMPSREF -4- Plaintiff asserts that Defendant 1 In his Request for Relief, Plaintiff seeks monetary damages and “interposition by 2 way of [an] injunction order” that requires Plaintiff to be transferred to the custody of the 3 United States Marshal “for the duration and final decision in [his] ongoing criminal 4 prosecution CR-2012-006837-001 DT.” 5 IV. Failure to State a Claim 6 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 7 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 8 v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 9 liberal interpretation of a civil rights complaint may not supply essential elements of the 10 claim that were not initially pled. Id. 11 A. 12 A prerequisite for any relief under 42 U.S.C. § 1983 is a showing that the 13 defendant has acted under the color of state law. A public defender or court-appointed 14 attorney representing a criminal defendant does not act under color of state law. See Polk 15 County v. Dodson, 454 U.S. 312, 325 (1981); see also Szijarto v. Legeman, 466 F.2d 864, 16 864 (9th Cir. 1972). However, a public defender engaged in intentional misconduct as a 17 part of a conspiracy with state actors to violate a plaintiff’s rights can be liable under 18 § 1983 for that misconduct. See Tower v. Glover, 467 U.S. 914, 923 (1984). Count One 19 To state a conspiracy claim, a plaintiff “must show ‘an agreement or ‘meeting of 20 the minds’ to violate constitutional rights.’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 21 2002) (citation omitted). The Court “need not, however, accept as true allegations that 22 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” 23 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), amended on other 24 grounds, 275 F.3d 1187 (9th Cir. 2001). “A mere allegation of conspiracy without 25 factual specificity is insufficient.” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 26 621, 626 (9th Cir. 1988); see also Woodrum v. Woodward County, 866 F.2d 1121, 1126 27 (9th Cir. 1989) (conclusory allegations of conspiracy did not support a § 1983 claim). 28 TERMPSREF -5- 1 Plaintiff has used the word “conspiracy,” but has not made any allegations of an 2 agreement or meeting of the minds between Defendant Granville and any other 3 individual. Plaintiff has therefore failed to state a claim against Defendant Granville and 4 the Court will dismiss Defendant Granville and Count One. 5 B. 6 First, to the extent Plaintiff is alleging that Defendants Alger’s and Abbott’s 7 conduct constitutes excessive force, he has failed to state a claim. The Fourteenth 8 Amendment Due Process Clause, not the Eighth Amendment, protects pretrial detainees 9 from excessive force that amounts to punishment. Gibson v. County of Washoe, 290 F.3d 10 1175, 1197 (9th Cir. 2002). “[T]he Fourth Amendment sets the ‘applicable constitutional 11 limitations’ for considering claims of excessive force during pretrial detention.” Id. 12 (quoting Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir. 1996). Count Two – Defendants Alger and Abbott 13 The Fourth Amendment does not prohibit the use of reasonable force. Tatum v. 14 City & County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006). Whether the force 15 was excessive depends on “whether the officers’ actions [were] ‘objectively reasonable’ 16 in light of the facts and circumstances confronting them, without regard to their 17 underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989); Tatum, 18 441 F.3d at 1095; Lolli v. County of Orange, 351 F.3d 410, 415 (9th Cir. 2003). The 19 Court must balance the nature and quality of the intrusion against the countervailing 20 governmental interests at stake. Graham, 490 U.S. at 396; Lolli, 351 F.3d at 415. 21 Moreover, [t]he “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . . “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth Amendment. 22 23 24 25 26 Graham, 490 U.S. at 396 (citations omitted). Defendants Alger’s and Abbott’s conduct does not rise to the level of excessive 27 28 TERMPSREF force. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (“‘[v]erbal -6- 1 harassment or abuse . . . is not sufficient to state a constitutional deprivation under 42 2 U.S.C. § 1983’” (quoting Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979))). Thus, 3 the Court will dismiss without prejudice Plaintiff’s excessive force claim against 4 Defendants Alger and Abbott. 5 Second, to the extent Plaintiff is alleging that he was subjected to retaliation by 6 Defendants Alger and Abbott, he has failed to state a claim. A viable claim of First 7 Amendment retaliation contains five basic elements: (1) an assertion that a state actor 8 took some adverse action against an inmate (2) because of (3) that prisoner’s protected 9 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment 10 rights (or that the inmate suffered more than minimal harm) and (5) did not reasonably 11 advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 12 Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims 13 requires an inmate to show (1) that the prison official acted in retaliation for the exercise 14 of a constitutionally protected right, and (2) that the action “advanced no legitimate 15 penological interest”). The plaintiff has the burden of demonstrating that his exercise of 16 his First Amendment rights was a substantial or motivating factor behind the defendants’ 17 conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); 18 Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). 19 Plaintiff does not allege that the exercise of his First Amendment rights was 20 chilled by Defendants Alger’s and Abbott’s conduct, that he suffered more than minimal 21 harm from their conduct, or that there was no reasonable correctional goal advanced by 22 their conduct. Thus, the Court will dismiss without prejudice Plaintiff’s retaliation claim 23 against Defendants Alger and Abbott. 24 Finally, to the extent Plaintiff is alleging that Defendant Hansdall was acting 25 vicariously for Defendant Alger, this does not state a claim against Defendant Alger 26 because there is no vicarious liability under § 1983. Iqbal, 556 U.S. at 676. 27 V. 28 TERMPSREF Claims for Which an Answer Will be Required – Defendant Hansdall Liberally construed, Plaintiff has stated a Fourteenth Amendment excessive force -7- 1 claim against Defendant Hansdall in Count Two. The Court will require Defendant 2 Hansdall to answer Count Two. 3 VI. Motion for a Preliminary Injunction and Temporary Restraining Order 4 In his Motion for a Preliminary Injunction and Temporary Restraining Order, 5 Plaintiff seeks to be transferred to the custody of the United States Marshal “until the 6 conclusion of his state criminal proceeding in . . . . CR 2012-006837-001 DT”;2 to 7 prevent Defendants Hansdall, Abbott, and Alger from engaging in any written, verbal, or 8 physical interaction regarding “any of Plaintiff’s criminal proceedings and or institutional 9 functions”; and to prevent “any representation or hand[]ling of discover[y] of the 10 Plaintiff’s criminal case.” 11 Whether to grant or deny a motion for a temporary restraining order or preliminary 12 injunction is within the Court’s discretion. See Miss Universe, Inc. v. Flesher, 605 F.2d 13 1130, 1132-33 (9th Cir. 1979). 14 1. 15 A temporary restraining order can be issued without notice 16 only if: (A) specific facts in an affidavit or a verified complaint show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. 17 18 19 20 21 22 23 24 25 Temporary Restraining Order Fed. R. Civ. P. 65(b)(1) (emphasis added). See also LRCiv 65.1 (“Ex parte restraining orders shall only issue in accordance with Rule 65, Federal Rules of Civil Procedure.”). To the extent Plaintiff is seeking a temporary restraining order, he is seeking a temporary restraining order without notice, yet has not certified the “efforts made to give notice and the reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1)(B). Because the request for a temporary restraining order fails to comply with Rule 26 27 2 28 TERMPSREF On April 21, 2014, Plaintiff pleaded guilty to Attempted Aggravated Assault on a Law Enforcement Officer in CR 2012-006837-001-DT. See http://www.courtminutes. maricopa.gov/docs/Criminal/042014/m6273559.pdf (last visited Aug. 18, 2014). -8- 1 65(b)(1)(B), the Court, in its discretion, will deny that request. See LRCiv 65.1. See also 2 American Can Co. v. Mansukhani, 742 F.2d 314, 321 (7th Cir. 1984) (district court 3 abused its discretion in granting ex parte temporary restraining order “when there was no 4 valid reason for proceeding ex parte and by disregarding the strict procedural 5 requirements of Fed. R. Civ. P. 65(b) for the issuance of such ex parte orders”); Adobe 6 Systems, Inc. v. South Sun Products, Inc., 187 F.R.D. 636 (S.D. Cal. 1999). 7 2. Preliminary Injunction 8 To obtain a preliminary injunction, the moving party must show “that he is likely 9 to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 10 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 11 the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 12 (2008). 13 Environmental Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 14 2000). The moving party has the burden of proof on each element of the test. 15 To the extent Plaintiff is seeking a preliminary injunction, he has failed to meet his 16 burden and has failed to address many of the elements of the test. Thus, the Court will 17 deny Plaintiff’s request for a preliminary injunction. 18 VII. Warnings 19 A. 20 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his 21 release. Also, within 30 days of his release, he must either (1) notify the Court that he 22 intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to 23 comply may result in dismissal of this action. Release 24 B. 25 Plaintiff must file and serve a notice of a change of address in accordance with 26 Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion 27 for other relief with a notice of change of address. Failure to comply may result in 28 dismissal of this action. TERMPSREF Address Changes -9- 1 C. 2 Plaintiff must serve Defendant, or counsel if an appearance has been entered, a 3 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 4 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, 5 Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 6 5.4. Failure to comply may result in the filing being stricken without further notice to 7 Plaintiff. 8 D. 9 If Plaintiff fails to timely comply with every provision of this Order, including 10 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 11 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 12 for failure to comply with any order of the Court). 13 IT IS ORDERED: Copies Possible Dismissal 14 (1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 15 (2) As required by the accompanying Order to the appropriate government 16 agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial 17 filing fee. 18 (3) 19 Plaintiff’s Motion for a Preliminary Injunction and Temporary Restraining Order (Doc. 6) is denied without prejudice. 20 (4) Count One is dismissed without prejudice. 21 (5) Defendants Granville, Abbott, and Alger are dismissed without prejudice. 22 (6) Defendant Hansdall must answer the relevant portion of Count Two. 23 (7) The Clerk of Court must send Plaintiff a service packet including the 24 Complaint (Doc. 1), this Order, and both summons and request for waiver forms for 25 Defendant Hansdall. 26 (8) Plaintiff must complete and return the service packet to the Clerk of Court 27 within 21 days of the date of filing of this Order. The United States Marshal will not 28 provide service of process if Plaintiff fails to comply with this Order. TERMPSREF - 10 - 1 (9) If Plaintiff does not either obtain a waiver of service of the summons or 2 complete service of the Summons and Complaint on Defendant within 120 days of the 3 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, 4 the action may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(i). 5 6 (10) The United States Marshal must retain the Summons, a copy of the Complaint, and a copy of this Order for future use. 7 (11) The United States Marshal must notify Defendant of the commencement of 8 this action and request waiver of service of the summons pursuant to Rule 4(d) of the 9 Federal Rules of Civil Procedure. The notice to Defendant must include a copy of this 10 Order. 11 summons. If a waiver of service of summons is returned as undeliverable or is not 12 returned by a Defendant within 30 days from the date the request for waiver was 13 sent by the Marshal, the Marshal must: The Marshal must immediately file signed waivers of service of the 14 (a) personally serve copies of the Summons, Complaint, and this Order 15 upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; 16 and 17 (b) within 10 days after personal service is effected, file the return of 18 service for Defendant, along with evidence of the attempt to secure a waiver of 19 service of the summons and of the costs subsequently incurred in effecting service 20 upon Defendant. The costs of service must be enumerated on the return of service 21 form (USM-285) and must include the costs incurred by the Marshal for 22 photocopying additional copies of the Summons, Complaint, or this Order and for 23 preparing new process receipt and return forms (USM-285), if required. Costs of 24 service will be taxed against the personally served Defendant pursuant to Rule 25 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the 26 Court. 27 28 TERMPSREF - 11 - 1 (12) If Defendant agrees to waive service of the Summons and Complaint, 2 he must return the signed waiver forms to the United States Marshal, not the 3 Plaintiff. 4 (13) Defendant must answer the relevant portion of Count Two of the Complaint 5 or otherwise respond by appropriate motion within the time provided by the applicable 6 provisions of Rule 12(a) of the Federal Rules of Civil Procedure. 7 (14) This matter is referred to Magistrate Judge James F. Metcalf pursuant to 8 Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 9 authorized under 28 U.S.C. § 636(b)(1). 10 Dated this 12th day of September, 2014. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF - 12 -

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