Espey v. Deuel Vocational Institution
Filing
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ORDER adopting in full 95 FINDINGS AND RECOMMENDATIONS, signed by District Judge Troy L. Nunley on 9/24/15. Defendants' 73 summary judgment motion is GRANTED as to Plaintiff's claims against Defendants Street and Awatani alleging inadequate pain and anti-seizure medication; and DENIED as to Plaintiff's claim against Defendant Baath regarding the discontinuation of Artane. (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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FLOYD ESPEY,
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No. 2:13-cv-2147 TLN KJN P
Plaintiff,
v.
ORDER
DEUEL VOCATIONAL INSTITUTION,
et al.,
Defendants.
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Plaintiff, a former state prisoner proceeding pro se, has filed this civil rights action
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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate
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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On July 27, 2015, the magistrate judge filed findings and recommendations herein which
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were served on all parties and which contained notice to all parties that any objections to the
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findings and recommendations were to be filed within fourteen days. Defendants have filed
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objections to the findings and recommendations.
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The magistrate judge recommended that Defendants’ summary judgment motion be
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granted as to Plaintiff’s claims against Defendants Street and Awatani alleging inadequate pain
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medication and anti-seizure medication. The magistrate judge recommended that Defendants’
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summary judgment motion be denied as to Plaintiff’s claim against Defendant Baath regarding
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the alleged discontinuation of the medication Artane.
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In their objections, Defendants argue that the magistrate judge erred in recommending that
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Defendant Baath be denied summary judgment. The undersigned addresses Defendants’
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objections herein.
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In the Second Amended Complaint, Plaintiff alleged that on April 30, 2013, he arrived at
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the Deuel Vocational Institution (“DVI”). (ECF No. 15 at 5.) Plaintiff alleged that on April 30,
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2013, Defendant Baath discontinued Plaintiff’s medication Artane, which had been prescribed to
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treat side effects from antipsychotic medications Plaintiff had been taking, such as Abilify. (Id.)
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Plaintiff alleged that he had been taking Artane “for years.” (Id.) Plaintiff alleged that after the
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Artane was discontinued, he suffered lockjaw as a side effect from the Abilify. (Id. at 6.)
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Plaintiff alleged that he was given Benadryl injections and pills over three days to treat the
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lockjaw. (Id.)
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In the summary judgment motion, Defendants argued that Defendant Baath did not act
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with deliberate indifference to Plaintiff’s serious medical needs. See Jett v. Penner, 439 F.3d
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1091, 1096 (9th Cir. 2006) (standard for Eighth Amendment claim alleging inadequate medical
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care). In support of the summary judgment motion, Defendants submitted Defendant Baath’s
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declaration. (ECF No. 89-3 at 1-3.) In relevant part, Defendant Baath stated that when Plaintiff
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arrived at DVI on April 30, 2013, Plaintiff had prescriptions for Abilify and Artane. (Id.)
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Defendant Baath stated that Abilify had potential side effects, including extrapyramidal
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symptoms such as lockjaw. (Id.) Defendant Baath stated that Artane was one of many
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medications that could be prescribed to counteract extrapyramidal symptoms. (Id.) Other drugs
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used in conjunction with Abilify include Cogentin, Vistaril and Benadryl. (Id.)
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In his declaration, Defendant stated that on April 30, 2013, he discontinued Plaintiff’s
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prescription for Artane because it was a banned medication. (Id.) Defendant recalls offering
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Plaintiff Cogentin in its place, which Plaintiff declined. (Id.)
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On May 9, 2013, Defendant saw Plaintiff for a psychiatry visit. (Id.) Plaintiff reported a
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history of bipolar disorder and intermittent lockjaw. (Id.) Defendant discontinued Plaintiff’s
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prescription for Abilify to rule out lockjaw as a reaction to taking Abilify without Artane. (Id.)
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In his declaration, Defendant stated that on May 10, 2013, Plaintiff was seen by Dr.
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Newman for complaints of lockjaw. (Id.) Because Plaintiff reported a previous reaction to
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Cogentin, and complained that Vistaril had been ineffective, Defendant Baath submitted a non-
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formulary request for Benadryl to rule out lockjaw. (Id.)
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On May 24, 2013, Plaintiff returned to Dr. Newman, again with complaints of pain and
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swelling in his right jaw. (Id.) The diagnosis was cellulitis and an antibiotic was prescribed.
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(Id.)
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In his declaration, Defendant Baath also states that had Plaintiff experienced lockjaw as a
result of not taking Artane, that symptom would have manifested itself within two days. (Id.)
The magistrate judge recommended that Defendant Baath be denied summary judgment
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for the following reasons. (ECF No. 95 at 8-9.) First, the magistrate judge found that while
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Defendant Baath may have been prohibited from prescribing Artane, it was unclear why
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Defendant did not discontinue Plaintiff’s prescription for Abilify on April 30, 2013, i.e., when he
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discontinued Plaintiff’s Artane prescription. (Id.) The magistrate judge stated that he could not
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determine whether Defendant acted with deliberate indifference without knowing why he allowed
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Plaintiff to continue taking Abilify without prescribing another drug to prevent lockjaw, which
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Plaintiff claimed he had suffered in the past.
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The magistrate judge also found that Defendant Baath’s claim that Plaintiff suffered no
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adverse effects as a result of taking Artane was not supported by the record. In his declaration,
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Defendant stated that the symptoms of lockjaw would have manifested themselves within two
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days of not taking Artane, i.e., two days after April 30, 2013. The magistrate judge found that if
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that was the case, then it was unclear why Defendant Baath treated Plaintiff for lockjaw with
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Benadryl on May 10, 2013. The magistrate judge also observed that Defendant Baath did not
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address whether Benadryl alleviated any symptoms.
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The magistrate judge also found that whether Plaintiff suffered from lockjaw on May 9
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and 10, 2013 was a materially disputed fact. The magistrate judge made this finding based on
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Defendant’s decision to treat Plaintiff with Benadryl for his symptoms, a drug used to treat
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lockjaw. In addition, Plaintiff alleged that he experienced lockjaw symptoms.
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In his objections, Defendant argues that the magistrate judge erred by failing to find that
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he did not act with deliberate indifference. A Defendant is liable under the Eighth Amendment if
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he knows that Plaintiff faces “a substantial risk of serious harm and disregards that risk by failing
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to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 827 (1994.)
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In his objections, Defendant argues that he did not act with deliberate indifference toward
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Plaintiff on April 30, 2013, because he offered Plaintiff Cogentin in place of Artane. (ECF No.
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96 at 2.) While this is true, as noted in the findings and recommendations, Plaintiff alleges that
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Cogentin caused him to suffer a previous reaction. The undersigned agrees with the magistrate
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judge that the Court cannot determine whether Defendant acted with deliberate indifference on
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April 30, 2013, without knowing more about the conversation Defendant had with Plaintiff on
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April 30, 2013, and why Defendant failed to prescribe one of the other “many such medications”
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used to counteract the extrapyramidal symptoms caused by Abilify, such as lockjaw. (See ECF
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No. 89-3 at 1 (defendant Baath’s declaration).)
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In the objections, Defendant also argues that there is no evidence that on April 30, 2013,
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Defendant was aware that Plaintiff faced a serious risk of lockjaw, as opposed to any other
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potential side effect of taking Abilify. Defendants argue that lockjaw is only one potential side
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effect of Abilify. Defendant argues that Plaintiff did not mention lockjaw until May 9, 2013, over
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one week later.
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In essence, Defendant argues that he did not act with deliberate indifference when he
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discontinued Artane because he did not know what specific potential extrapyramidal symptom it
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had been prescribed to treat. The undersigned does not agree with this argument. While
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Defendant Baath may not have known what specific extrapyramidal symptom Artane had been
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prescribed to treat, the record demonstrates that Defendant knew that Artane had been prescribed
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to treat some extrapyramidal symptom. Defendant does not argue that extrapyramidal symptoms
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do not constitute a serious medical need. Therefore, Defendant knew that Plaintiff faced a serious
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risk of harm as a result of the discontinuation of Artane.
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Defendant also argues that he did not know that Plaintiff faced a serious risk of harm
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because Plaintiff did not mention lockjaw to him until May 9, 2013. The evidence does not
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clearly support this claim. Defendant’s declaration does not clearly state that Plaintiff did not
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mention lockjaw until May 9, 2013. In his declaration, Defendant states that on April 30, 2013,
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he offered Plaintiff Cogentin, which Plaintiff declined. Defendant does not provide any
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additional information regarding this conversation with Plaintiff, including whether he discussed
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with Plaintiff why Artane had been prescribed. Defendant goes on to state that he saw Plaintiff
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on May 9, 2013 for a psychiatry clinic visit, where Plaintiff reported a history of bipolar disorder
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and a history of intermittent lockjaw. Defendant does not state that this was the first time
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Plaintiff mentioned lockjaw.
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In any event, as discussed above, Defendant Baath’s declaration indicates that on April
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30, 2013, he knew that Artane had been prescribed to treat one of the potential extrapyramidal
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symptoms of Abilify, including lockjaw. Thus, Defendant knew that Plaintiff faced a potentially
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serious risk of harm were he not to receive Artane. Defendant’s alleged failure to ascertain what
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specific side effect Artane was prescribed to treat does not demonstrate that he did not act with
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deliberate indifference.
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In the objections, Defendant also argues that the magistrate judge should have found that
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Plaintiff did not suffer lockjaw or any other adverse effect as a result of not taking Artane.
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Defendant argues that the timing of Plaintiff’s lockjaw symptoms on May 10, 2013 was
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inconsistent with being caused by a reaction to Abilify and an alternative diagnosis (i.e., the May
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24, 2013 cellulitis diagnosis) was made regarding the pain.
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As discussed in the findings and recommendations, it is undisputed that on May 10, 2013,
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Plaintiff suffered from symptoms consistent with lockjaw. While Defendant argues in the
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objections that Plaintiff’s symptoms could not have been caused by lockjaw, it is undisputed that
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he treated these symptoms as if they were caused by lockjaw by prescribing Benadryl.
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Defendant’s summary judgment motion does not address whether Plaintiff’s May 10, 2013,
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lockjaw symptoms were successfully treated with Benadryl. Defendant has also provided no
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evidence supporting his argument that Plaintiff’s May 10, 2013, jaw pain was caused by cellulitis.
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The undersigned agrees with the magistrate record that whether Plaintiff suffered from lockjaw
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on May 10, 2013 is a materially disputed fact.
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The undersigned agrees with the magistrate judge that Defendant Baath is not entitled to
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qualified immunity.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
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Court finds the findings and recommendations to be supported by the record and by proper
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analysis.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The findings and recommendations filed July 27, 2015 are adopted in full;
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2. Defendants’ summary judgment motion (ECF No. 73) is granted as to Plaintiff’s
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claims against Defendants Street and Awatani alleging inadequate pain and anti-seizure
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medication; Defendants’ summary judgment motion is denied as to Plaintiff’s claim against
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Defendant Baath regarding the discontinuation of Artane.
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IT IS SO ORDERED.
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Dated: September 24, 2015
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Troy L. Nunley
United States District Judge
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