Mitchell v. Schwartzenegger et al
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 8/6/2015 DIRECTING the Clerk to send plaintiff the form for filing a civil rights action; AND RECOMMENDING that plaintiff's 190 motion for injunctive relief be denied. Motion referred to Judge John A. Mendez; Objections due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOHN EDWARD MITCHELL,
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No. 2:09-cv-3012 JAM KJN P
Plaintiff,
v.
ORDER and
J. HAVILAND, et al.,
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FINDINGS AND RECOMMENDATIONS
Defendants.
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Introduction
Plaintiff is a state prisoner, proceeding without counsel. This civil rights action is
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proceeding on plaintiff’s claims that, while he was housed at California State Prison-Solano
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(“CSP-SOL”), defendant Rosario used excessive force on plaintiff on August 5, 2008, and
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retaliated against plaintiff on November 3, 2008, and that defendants Rosario and McGuire
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retaliated against plaintiff in early 2009. (ECF No. 169.) On November 12, 2009, plaintiff was
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transferred from CSP-SOL to the California State Prison in Corcoran (“CSP-COR”). (ECF No.
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6.) On April 15, 2011, plaintiff was transferred from CSP-COR to the California Substance
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Abuse Treatment Facility and State Prison in Corcoran (“SATF”). (ECF No. 39.) On June 11,
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2015, plaintiff filed a notice of change of address stating he would be transferred back to CSP-
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COR on June 8, 2015. (ECF No. 181.) On July 23, 2015, plaintiff filed a document styled,
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“Order to Show Cause for Preliminary Injunction and Temporary Restraining Order.” (ECF No.
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190.) Upon review of plaintiff’s motion and supporting documents, as set forth more fully below,
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the court finds that plaintiff’s motion should be denied.
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Motion for Injunctive Relief
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Plaintiff’s motion for injunctive relief is before the court. (ECF No. 190.) In this 33 page
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filing, plaintiff sets forth a laundry list of alleged constitutional violations from April 2009, while
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plaintiff was housed at CSP-SOL, to July 15, 2015, while plaintiff was, and remains, housed at
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CSP-COR. (ECF No. 190.) Plaintiff claims that as a result of his filing complaints and appeals
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concerning the alleged assault by defendant Rosario, plaintiff began to receive all forms of
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retaliation. However, plaintiff concedes that while he was housed in the SHU at CSP-COR, he
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could not directly connect the officers acting in the ‘campaign of harassment’ to defendant
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Rosario. (ECF No. 190 at 6.) Plaintiff alleges no facts demonstrating a connection between the
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incidents he alleges occurred at SATF or at CSP-COR, or between these new allegations and the
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allegations proceeding in the instant action. In his motion plaintiff seeks a court order enjoining
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the CDCR Director, Warden Davey, CSP-COR; Lt. T. Gonzalez; Correctional Officer Alvarez;
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and defendants Rosario and McGuire, from the following:
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1. Withholding or redirecting plaintiff’s legal or personal mail;
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2. Not allowing plaintiff to sign off or rescind his request for “SNY” status, keeping him
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from returning to the general population;
3. Confining plaintiff to quarters beyond 10 days without express approval of a warden,
because it deprives plaintiff of law library access or exercise time;
4. Threatening plaintiff with ‘use of force’ if he refuses a cellmate that is not being done
for a legitimate purpose;
5. Retaliating by issuing plaintiff rules violation reports that contain false information or
are manufactured;
6. Refusing to give plaintiff his religious diet unless a medical doctor prescribes a
medical diet;
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7. Unlawfully confiscating any and all property;
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8. Housing plaintiff with an incompatible cellmate;
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9. Any and all verbal harassment;
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10. Defendants Rosario and McGuire be forbidden from contacting the prison where
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plaintiff is housed and requesting favors that involve harassment, threats of use of force, or the
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assignment of housing that will put plaintiff at risk;
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11. Transferring plaintiff to High Desert State Prison, Salinas Valley State Prison, or
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SATF.
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Legal Standard for Injunctive Relief
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Plaintiff seeks a temporary restraining order. A temporary restraining order is an
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extraordinary and temporary “fix” that the court may issue without notice to the adverse party if,
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in an affidavit or verified complaint, the movant “clearly show[s] that immediate and irreparable
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injury, loss, or damage will result to the movant before the adverse party can be heard in
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opposition.” See Fed. R. Civ. P. 65(b)(1)(A). The purpose of a temporary restraining order is to
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preserve the status quo pending a fuller hearing. See generally, Fed. R. Civ. P. 65; see also, L. R.
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231(a). It is the practice of this district to construe a motion for temporary restraining order as a
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motion for preliminary injunction. Local Rule 231(a); see also, e.g., Aiello v. OneWest Bank,
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2010 WL 406092, *1 (E.D. Cal. 2010) (providing that “‘[t]emporary restraining orders are
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governed by the same standard applicable to preliminary injunctions’”) (citations omitted).
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The party requesting preliminary injunctive relief must show that “he is likely to succeed
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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
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the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
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Natural Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d
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1109, 1127 (9th Cir. 2009) (quoting Winter). The propriety of a request for injunctive relief
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hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean
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Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
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Alternatively, under the so-called sliding scale approach, as long as the plaintiff
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demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the
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public interest, a preliminary injunction may issue so long as serious questions going to the merits
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of the case are raised and the balance of hardships tips sharply in plaintiff’s favor. Alliance for
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Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the “serious
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questions” version of the sliding scale test for preliminary injunctions remains viable after
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Winter).
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The principal purpose of preliminary injunctive relief is to preserve the court’s power to
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render a meaningful decision after a trial on the merits. See 11A Charles Alan Wright & Arthur
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R. Miller, Federal Practice and Procedure, § 2947 (2d ed. 2010). As noted above, in addition to
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demonstrating that he will suffer irreparable harm if the court fails to grant the preliminary
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injunction, plaintiff must show a “fair chance of success on the merits” of his claim. Sports
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Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754 (9th Cir. 1982) (internal citation
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omitted). Implicit in this required showing is that the relief awarded is only temporary and there
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will be a full hearing on the merits of the claims raised in the injunction when the action is
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brought to trial. In cases brought by prisoners involving conditions of confinement, any
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preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the
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harm the court finds requires preliminary relief, and be the least intrusive means necessary to
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correct the harm.” 18 U.S.C. § 3626(a)(2).
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In addition, as a general rule this court is unable to issue an order against individuals who
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are not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395
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U.S. 100 (1969).
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Discussion
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In the instant motion, plaintiff primarily challenges actions that took place at CSP-COR
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and SATF, both of which are in the Fresno Division of the Eastern District of California, against
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individuals employed at CSP-COR and SATF, who are not named as defendants herein.
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However, in the operative complaint herein, plaintiff challenges concrete actions taken in 2008
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and 2009 at CSP-SOL by defendants Rosario and McGuire. Therefore, the facts underlying
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plaintiff’s claims for injunctive relief are unrelated to plaintiff’s claims in this action, and
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occurred long after the incidents at issue herein. Plaintiff’s attempts to connect these subsequent
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actions to defendant Rosario are not based on factual allegations; rather, they are based on
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plaintiff’s speculation that such acts are somehow connected to defendant Rosario, despite the
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large gap in time and no facts to suggest a connection.
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As plaintiff was previously advised, this court lacks jurisdiction to address claims not
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contained within the operative complaint because the claims will not be given a hearing on the
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merits at trial. (See ECF Nos. 30, 72, 124 at 4.)
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Moreover, plaintiff’s claims supporting his motion for injunctive relief are based on
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unrelated actions taken by correctional staff not named as defendants herein. “Unrelated claims
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against different defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th
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Cir. 2007). Thus, this court lacks jurisdiction over the individuals located at CSP-COR and
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SATF named in the motion. Plaintiff cannot defeat this jurisdictional hurdle by claiming that
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they are somehow related to defendant Rosario, or attempt to link unrelated incidents by
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suggesting they are part of a “campaign of harassment.” (ECF No. 190 at 6.) In addition,
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plaintiff is required to exhaust his administrative remedies as to all claims prior to filing an action
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in federal court. Exhaustion in prisoner cases covered by 42 U.S.C. § 1997e(a) is mandatory.
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Porter v. Nussle, 534 U.S. 516, 524 (2002).
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Finally, plaintiff is no longer housed at CSP-SOL, and is therefore no longer subject to
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actions by defendants Rosario and McGuire. Thus, motions for injunctive relief against
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defendants Rosario and McGuire are moot. Zenith Radio Corp., 395 U.S. at 100. Plaintiff should
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not renew motions for injunctive relief in this action because this action proceeds solely as to
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plaintiff’s claims that arose in 2008 and 2009.
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That said, the court is concerned that plaintiff is allegedly not receiving a religious diet
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and that he believes he is not safe at CSP-COR. But plaintiff must pursue such claims in an
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action filed in the Fresno Division of this court, not in the instant action. Moreover, on prior
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occasions, plaintiff was advised that this court lacked jurisdiction to hear claims not included in
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the operative complaint. (ECF Nos. 30, 72, 119.) Plaintiff delays his ability to obtain relief by
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attempting to pursue such unrelated claims in this action. Provided plaintiff has exhausted his
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administrative remedies, plaintiff may file a new civil rights action in the Fresno Division of the
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Eastern District of California. The Clerk of the Court is directed to send plaintiff the form for
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filing a civil rights action.
The claims on which plaintiff’s motion for injunctive relief are predicated are not included
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in the operative complaint on which this action is proceeding, and do not raise allegations against
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the remaining defendants. For that reason, the claims will not be given a hearing on the merits at
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trial. Thus, the court cannot grant plaintiff injunctive relief, and recommends that plaintiff’s
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motion for such relief be denied. Again, plaintiff is admonished that he should not renew motions
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for injunctive relief in this action because this action proceeds solely as to plaintiff’s claims that
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arose in 2008 and 2009 at CSP-SOL, where plaintiff is no longer housed.
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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to send
plaintiff the form for filing a civil rights action pursuant to 42 U.S.C. § 1983; and
IT IS HEREBY RECOMMENDED that plaintiff’s motion for injunctive relief (ECF No.
190) be denied.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be filed and served within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: August 6, 2015
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