Berrera v. Sivyer et al

Filing 43

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 08/31/17 recommending that defendants November 16,2016 motion to dismiss 34 be denied. Motion 34 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERNESTO BERRERA, 12 No. 2:15-cv-0610-KJM-EFB P Plaintiff, 13 v. 14 J. SIVYER, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 17 18 under 42 U.S.C. § 1983. Defendant Macomber seeks dismissal of the claims against him, arguing 19 that plaintiff failed to exhaust them administratively and that the allegations do not state a viable 20 claim for relief. Macomber also argues that he is entitled to qualified immunity.1 For the reasons 21 that follow, it is recommended that the motion be denied. 22 23 24 I. Background Plaintiff filed this case on March 18, 2015, alleging that defendant Sivyer shot him with “his 40mm firearm”2 in the eye, during a yard skirmish in which plaintiff was not involved. 25 1 26 27 28 In its screening order, the court found that plaintiff stated potentially cognizable claims against defendants Macomber and Sivyer. ECF No. 8. Defendant Sivyer is not a party to the instant motion to dismiss. 2 Attachments to the complaint reveal that Officer Sivyer fired three “40 mm foam baton rounds from his 40 mm launcher.” ECF No. 1 at 34. 1 1 Plaintiff claims that Sivyer stated that this was “payback for your homies assaulting my partner.” 2 ECF No. 1 at 6. According to plaintiff, Sivyer also told plaintiff that “we got permission from the 3 Warden [Macomber] to shoot yall asses.” Id. Plaintiff alleges that Sivyer and other officers 4 engaged in a pattern and practice of shooting inmates in the face and head and that Macomber 5 was aware of and sanctioned that practice. Id. at 8-9. 6 In the section of the form complaint plaintiff filled out entitled “Exhaustion of 7 Administrative Remedies,” plaintiff placed an “X” indicating a “Yes” response to these questions: 8 (1) whether there was a grievance procedure available at his institution, (2) whether he had filed a 9 grievance concerning the facts relating to the complaint, and (3) whether the grievance process 10 was completed. Id. at 2. Plaintiff referred to his administrative appeal in the body of his 11 complaint as well, stating, “So when Plaintiff did as they requested, they cancelled Plaintiff’s 602 12 appeal and lied and said it was a duplicate and they the institution [sic] would not allow Plaintiff 13 to submit his appeal (See CDC Form 695 as exhibit ‘B’). This has been done to Plaintiff on May 14 5, 2014 and on July 25, 2013. So Plaintiff has exhausted his institutional appeal.” Id. at 4. 15 Plaintiff additionally appended 40 pages of documents related to his administrative appeals. Id. at 16 23-64. These pages concern the following appeals: 17 (1) Log No. SAC-B-14-00223, filed on January 20, 2014. This appeal was the earliest 18 filed by plaintiff concerning the shooting. Plaintiff stated the grievance as: 19 On 1-15-2014, CDCR personnel/prison officials at California State Prison-Sacramento shot me in the face and eye causing me severe pain, wanton pain and suffering, and loss of vision in left eye. 20 21 22 23 24 25 Here CDCR Personnels—Negligence [sic]: Maliciously and sadistically misused firearm with deadly force/use of force to cause harm . . . and failure to intervene, inadequate policy, supervision, training, control by supervisors—supervisor(s) liability/were deliberately indifferent in violation of my 8th amendment United States Constitution. (Guards: J. Sivyer & J. Thorell) 26 ECF No. 1 at 25, 27. The documents attached to the complaint reveal that this 27 grievance was screened out at the first level twice: first, on January 28, 2014 for 28 failure to provide supporting documentation, making a general allegation but not 2 1 stating facts consistent with the allegation, and failing to identify the staff members 2 involved; second, on February 28, 2014 for failing to attach a CDC 1858 Rights and 3 Responsibilities Statement and failing to identify the staff involved. Id. at 33, 36. 4 When it was finally reviewed on the merits at the first level, the reviewer determined 5 on June 17, 2014 that staff had not violated CDCR policy. Id. at 41. 6 At the second level of review, the appeal was again cancelled, this time 7 because plaintiff had not signed and dated it. Id. at 38. When it was reviewed on the 8 merits, the reviewer again determined (on October 22, 2014) that staff had not 9 violated CDCR policy. Id. at 23, 39. 10 On February 17, 2015, over one year after it was filed, officials rejected 11 plaintiff’s appeal at the third level of review, again concluding that staff had not 12 violated CDCR policy. Id. at 23-24. 13 (2) Log No. SAC-B-14-00527. The attachments contain only one reference to this 14 appeal, in the cancellation notice for Log No. SAC-B-14-01141. The latter appeal was 15 canceled as duplicative of Log No. SAC-B-14-00527 (see below). ECF No. 1 at 53. 16 (3) Log No. SAC-B-14-00625, filed on February 28, 2014. In this appeal, plaintiff 17 alleged that Officer Sivyer had shot him in the left eye for no reason on January 15, 18 2014 and that “[i]t has been officer practice to shoot prisoners in the face and head at 19 folsom [sic] under the warden supervision. So he is also responsible for not training 20 his officers correctly.” ECF No. 1 at 59, 61. The appeal was cancelled on March 6, 21 2014 at the first level as duplicative of Log No. SAC-B-14-00527. Id. at 52. 22 (4) Log No. SAC-B-14-01141, filed on April, 27, 2014. In this appeal, plaintiff explained 23 his issue as: “I sent you my 602 complaint about being shot in the face, and I never 24 received it back. You said you sent it to me but I never received it. Send me a copy of 25 it please!” ECF No. 1 at 63. This appeal was cancelled as duplicative of Log Nos. 26 SAC-B-14-00527 and SAC-B-14-00223. Id. at 53. 27 28 (5) Log No. SAC-B-14-02022, filed on July 14, 2014. In this appeal, plaintiff stated his claim substantively the same as in Log No. SAC-B-14-00625. ECF No. 1 at 57. The 3 1 appeal was cancelled at the first level as duplicative of Log No. SAC-B-14-00223. Id. 2 at 54. 3 II. 4 The Motion to Dismiss A. Exhaustion 5 1. Governing Law 6 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought 7 with respect to prison conditions [under section 1983 of this title] until such administrative 8 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “Prison conditions” subject to 9 the exhaustion requirement have been defined broadly as “the effects of actions by government 10 officials on the lives of persons confined in prison . . . .” 18 U.S.C. § 3626(g)(2); Smith v. 11 Zachary, 255 F.3d 446, 449 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d 12 Cir. 2002). To satisfy the exhaustion requirement, a grievance must alert prison officials to the 13 claims the plaintiff has included in the complaint, but need only provide the level of detail 14 required by the grievance system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. 15 Nussle, 534 U.S. 516, 524-25 (2002) (the purpose of the exhaustion requirement is to give 16 officials the “time and opportunity to address complaints internally before allowing the initiation 17 of a federal case”). 18 Prisoners who file grievances must use a form provided by the California Department of 19 Corrections and Rehabilitation (CDCR Form 602), which instructs the inmate to describe the 20 problem and outline the action requested. Title 15 of the California Code of Regulations, 21 § 3084.2 provides further instructions, which include the direction to “list all staff member(s) 22 involved” and “describe their involvement.” Cal. Code Regs. tit. 15, § 3084.2(a)(3). If the 23 prisoner does not know the staff member’s name, first initial, title or position, he must provide 24 “any other available information that would assist the appeals coordinator in making a reasonable 25 attempt to identify the staff member(s) in question.” Id. 26 The grievance process, as defined by the regulations, has three levels of review to address 27 an inmate’s claims, subject to certain exceptions. See Cal. Code Regs. tit. 15, § 3084.7. 28 ///// 4 1 Administrative procedures generally are exhausted once a plaintiff has received a “Director’s 2 Level Decision,” or third level review, with respect to his issues or claims. Id. § 3084.1(b). 3 An appeal may be canceled for untimeliness at any stage of the review process. Id. 4 § 3084.6(a)(5), (c)(4). Once an appeal has been canceled, the inmate may not resubmit it unless 5 the appeals coordinator or third level appeals chief determines that the cancellation was in error or 6 “new information is received which makes the appeal eligible for further review.” Id. 7 § 3084.6(a)(3). The inmate may grieve the cancellation separately, however. Id. § 3084.6(e). If 8 the grievance of the cancellation is granted, the inmate may resubmit the appeal. Id. 9 § 3084.6(a)(3). 10 11 12 According to state regulations, “a cancellation or rejection decision does not exhaust administrative remedies.” Id. § 3084.1(b). Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 13 741 (2001), and “[p]roper exhaustion demands compliance with an agency’s deadlines and other 14 critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be 15 “available,” there must be the “possibility of some relief . . . .” Booth, 532 U.S. at 738. Relying 16 on Booth, the Ninth Circuit has held: 17 18 19 20 21 22 23 24 25 26 27 28 [A] prisoner need not press on to exhaust further levels of review once he has received all “available” remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available. Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). Failure to exhaust is “an affirmative defense the defendant must plead and prove.” Jones, 549 U.S. at 216 (2007). To bear this burden: [A] defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels of the grievance process or through awaiting the results of the relief already granted as a result of that process. Relevant evidence in so demonstrating would include statutes, regulations, and other official directives that explain the scope of the administrative review process; documentary or testimonial evidence from prison officials who administer the review process; and information provided to the prisoner concerning the operation of the grievance procedure in this case . . . . With regard to the latter category of evidence, information provided [to] the prisoner is pertinent because it informs our determination of whether relief was, as a practical matter, “available.” Brown, 422 F.3d at 936-37 (citations omitted). Once a defendant shows that the plaintiff did not 5 1 exhaust available administrative remedies, the burden shifts to the plaintiff “to come forward with 2 evidence showing that there is something in his particular case that made the existing and 3 generally available administrative remedies effectively unavailable to him.” Albino v. Baca, 747 4 F.3d 1162, 1172 (9th Cir. 2014) (en banc). 5 A defendant may move for dismissal for failure to state a claim under Federal Rule of 6 Civil Procedure 12(b)(6) in the extremely rare event that the plaintiff’s failure to exhaust 7 administrative remedies is clear on the face of the complaint. Id. at 1166. “Otherwise, 8 defendants must produce evidence proving failure to exhaust” in a summary judgment motion 9 brought under Rule 56. Id. If the court concludes that plaintiff has failed to exhaust 10 administrative remedies, the proper remedy is dismissal without prejudice. Wyatt v. Terhune, 315 11 F.3d 1108, 1120, overruled on other grounds by Albino, 747 F.3d 1162. 12 For purposes of dismissal under Rule 12(b)(6), the court generally considers only 13 allegations contained in the pleadings. Exhibits attached to the complaint, and matters properly 14 subject to judicial notice may also be considered. The court also construes all well-pleaded 15 material factual allegations in the light most favorable to the nonmoving party. Chubb Custom 16 Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 17 1202, 1212 (9th Cir. 2012). Otherwise, matters extrinsic to the complaint may not be considered 18 without converting the motion in to a motion for summary judgment pursuant to Rule 56. Fed. R. 19 Civ. P. 12(d). 20 Here, the court must determine whether the information in plaintiff’s complaint 21 concerning exhaustion of his administrative remedies establishes a failure to exhaust his claim 22 against defendant Macomber. To dismiss on that ground, the court must conclude that plaintiff’s 23 complaint shows not only that he failed to exhaust his administrative remedies but also that those 24 remedies were effectively available at the time. Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th Cir. 25 2010) (holding that a prisoner may be excused from the exhaustion requirement where the 26 conduct of prison officials rendered the administrative remedy effectively unavailable). Thus, in 27 Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225-26 (10th Cir. 2007), the Tenth Circuit noted 28 that “courts are obligated to ensure that any defects in exhaustion were not procured from the 6 1 action or inaction of prison officials.” Because the conduct of prison staff in processing a 2 grievance is often an issue in determining whether the administrative system was actually 3 available to the plaintiff and because such facts are not ordinarily pleaded in a complaint 4 concerning other prison conditions, it is extraordinarily rare for a court to be able to determine the 5 exhaustion question by looking only at the face of the complaint, as it must on a Rule 12(b)(6) 6 motion. Id. at 1225 (“[O]nly in rare cases will a district court be able to conclude from the face of 7 the complaint that a prisoner has not exhausted his administrative remedies and that he is without 8 a valid excuse.”). 9 2. 10 Analysis Defendant argues that plaintiff has admitted that a grievance system was “available” at his 11 institution by checking “yes” on the form complaint when asked, “Is there a grievance procedure 12 available at your institution?” ECF No. 1 at 2. But checking the yes box in answer to this 13 question hardly admits that the grievance system was effectively “available” in the sense that not 14 only did the institution have a grievance system but that plaintiff’s specific attempts to use it to 15 address the issues raised in his complaint were not thwarted by prison staff. A grievance system 16 may be generally “available” as that word is ordinarily understood (“present or ready for 17 immediate use,” and yet not effectively 18 “available” as that word has been defined in jurisprudence concerning exhaustion under the 19 PLRA. See Sapp, 623 F.3d at 822-23 (holding that the conduct of prison officials may render an 20 existing administrative remedy effectively unavailable). 21 In fact, the documents appended to the complaint raise questions as to whether the 22 administrative remedy in this case was rendered effectively unavailable by the conduct of prison 23 staff. Plaintiff’s first grievance, Log No. SAC-B-14-00223, was screened out twice at the first 24 level of review, first for failing to provide supporting documents, making a general allegation 25 without supporting facts, and failing to identify staff involved, and second for failing to attach a 26 rights and responsibilities statement. From the documents appended to the complaint, the court 27 cannot determine whether these screenings were justified. For example, the grievance appended 28 to the complaint lists correctional officers J. Sivyer and J. Thorell in the “Explain your issue” 7 1 section, and it is unclear whether the original form submitted by plaintiff contained those names 2 or whether plaintiff added them later in the appeals process. If they were there from the 3 beginning, screening the appeal out for failing to name the involved staff appears to have been 4 unnecessary and unwarranted. Plaintiff’s documents also contain a handwritten note by plaintiff 5 stating that staff had refused to provide him with the rights and responsibilities statement that his 6 appeal was “screened out” (i.e. rejected) for not including a copy. ECF No. 1 at 36. 7 When Log No. SAC-B-14-00223 finally made it through the first level of review (a 8 process that took five months), it was again screened out at the second level because plaintiff had 9 failed to sign and date it. It took four months for this level to complete review of the appeal, and 10 another four months for the third level to complete its review. The extended review period and 11 the multiple screenings raise questions about the availability of an effective grievance process in 12 this case and resolution of that question will require consideration of evidence beyond the 13 complaint to resolve. See Brown v. Valoff, 422 F.3d 926, 943 n.18 (9th Cir. 2005) (“Delay in 14 responding to a grievance, particularly a time-sensitive one, may demonstrate that no 15 administrative process is in fact available.”). The complaint and its attachments standing alone 16 do not make clear that plaintiff’s administrative remedy was effectively “available.” For these 17 reasons, Macomber’s motion to dismiss on this ground must be denied. 18 Macomber next argues that plaintiff did not properly exhaust the claim against him 19 because he failed to name Macomber in his initial grievance (Log No. SAC-B-14-00223). 20 According to Macomber, the court should not consider plaintiff’s other grievances (which did 21 name the warden) because they were properly screened out as duplicative. But plaintiff alleges 22 in his complaint that these other grievances were improperly screened, placing in issue the 23 propriety of the screenings. ECF No. 1 at 4. In any event, refusal to process the subsequent 24 grievances as duplicative ties their fate to that of the screening of the original grievance.3 25 Macomber, for the reasons stated above, has not met his burden of showing that grievance 26 process was actually available to plaintiff in his initial grievance (Log No. SAC-B-14-00223). If 27 28 3 Further, where the subsequent grievances may have cured the technical deficiencies as to the first grievance, they were not duplicative. 8 1 that grievance was made effectively unavailable through the conduct of prison staff, it was also 2 improper to refuse to consider plaintiff’s subsequent attempts to grieve the issue. 3 For these reasons, defendant has not sustained his burden of showing on this motion that 4 the grievance was both (1) available and (2) not properly exhausted. Accordingly, the court need 5 not consider at this stage whether plaintiff included sufficient information in his intial grievance 6 to properly exhaust under applicable state regulations. Because it is not clear from the complaint 7 that the grievance system was available to plaintiff, Macomber’s motion to dismiss the complaint 8 for failure to exhaust must be denied without prejudice to the court’s consideration of the issue on 9 a properly noticed and supported motion for summary judgment or at trial. 10 B. Failure to State a Claim 11 Macomber next points to a reference in plaintiff’s complaint to a declaration filed by an 12 inmate in another case, Hunt v. Turner (E.D. Cal. Case No. 2:14-cv-01286 MCE CKD P), and 13 argues that the court may consider documents filed by that other action, which are outside the 14 complaint herein, in ruling on this motion to dismiss. According to Macomber, plaintiff’s 15 reference has necessarily incorporated the Hunt complaint and, therefore, it and various other 16 filings in that action are subject to judicial notice. Macomber further argues that the Hunt 17 complaint and various filings in that action show no evidence of the policy plaintiff alleges here 18 (i.e., that correctional officers are allowed to shoot inmates in the head). Thus, argues Macomber, 19 because the Hunt documents negate plaintiff’s claim that Sivyer intended to shoot him in the 20 head, plaintiff’s complaint herein fails to state a claim against Macomber. The argument falls 21 under its own weight. 22 Under the “incorporation by reference” doctrine, a court may consider, in ruling on a Rule 23 12(b)(6) motion, documents whose contents are alleged in a complaint and whose authenticity no 24 party questions but which were not physically attached to the complaint. Knievel v. ESPN, 393 25 F.3d 1068, 1076 (9th Cir. 2005). Plaintiff has not incorporated by reference the Hunt complaint 26 (or any of the other Hunt documents Macomber asks the court to consider. Plaintiff has not 27 alleged the contents of the Hunt complaint, he merely refers to “inmate Tyrone Hunt’s declaration 28 for his lawsuit that’s in your court as of right now. Case # 2:14-cv-01286 CKD.” Hunt’s 9 1 declaration is the only document plaintiff has referred to from the Hunt action. He has not 2 incorporated by reference the Hunt complaint or any other document attached to it. 3 Even if the court were to judicially notice the other documents proffered by Macomber 4 from Hunt (which consist of (1) findings and recommendations recommending summary 5 judgment in favor of the defendant and (2) a policy submitted by the defendant in support of her 6 motion for summary judgment), they are not dispositive of disputed facts asserted in plaintiff’s 7 complaint. Plaintiff has alleged that Macomber continued a policy and/or practice as warden that 8 allowed correctional officers to shoot foam baton rounds at inmates’ heads. The determinations 9 made by the court on summary judgment in Hunt are based on the court’s review of all the 10 evidence submitted in that case and the specific allegations made by the plaintiff therein (which 11 did not include such a claim against the warden). It remains to be seen what evidence will be 12 presented by the parties in this action, and it is improper for the court to consider on this motion 13 to dismiss evidence cherry-picked from the Hunt action simply because plaintiff referred to the 14 Hunt declaration. Neither is the ruling in Hunt preclusive as to the plaintiff in this action. 15 Nor do the incident reports attached to complaint, which contain Sivyer’s version of 16 events, “negate” plaintiff’s allegations, as defendant claims. See ECF No. 1 at 132-33. These 17 documents are simply evidence of what Sivyer reported after the event and must be weighed with 18 all the other evidence at the appropriate stage of the proceedings to determine whether plaintiff 19 will be able to establish defendants’ liability. 20 Defendant Macomber asks the court to consider additional evidence not alleged by 21 plaintiff to determine whether to dismiss plaintiff’s claim against him. This the court may not do. 22 Because defendant’s argument depends on the consideration of evidence outside the complaint 23 and the determination of disputed facts, Macomber’s motion to dismiss for failure to state a claim 24 must be denied. 25 C. Qualified Immunity 26 Lastly, defendant Macomber argues that he should be afforded qualified immunity. A 27 court undertakes a two-part analysis to determine whether a defendant is entitled to qualified 28 immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). The first prong of the test asks whether the 10 1 facts “[t]aken in the light most favorable to the party asserting the injury” shows that the 2 defendant violated a constitutional right. Id. The second prong asks whether “the [violated] right 3 was clearly established” at the time of the alleged violation. Id. “The relevant, dispositive 4 inquiry in determining whether a right is clearly established is whether it would be clear to a 5 reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202. 6 Defendant argues that plaintiff has alleged no facts that show that he violated plaintiff’s 7 constitutional rights because plaintiff has not alleged facts that would justify liability against him 8 as Sivyer’s supervisor. There is no respondeat superior liability under § 1983. Jones v. Williams, 9 297 F.3d 930, 934 (9th Cir. 2013). That is, a plaintiff may not sue any official on the theory that 10 the official is liable for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 11 __ U.S. __, 129 S.Ct. 1937, 1948 (2009). Because respondeat superior liability is inapplicable to 12 § 1983 suits, “a plaintiff must plead that each Government-official defendant, through the 13 official’s own individual actions, has violated the Constitution.” Id. To be held liable, “the 14 supervisor need not be directly and personally involved in the same way as are the individual 15 officers who are on the scene inflicting constitutional injury.” Starr v. Baca, 633 F.3d 1191, 16 1194-95 (9th Cir. 2011) (quotations omitted). Nonetheless, a plaintiff must establish a causal 17 connection between the supervisor’s conduct and the plaintiff's claimed injury. Id. at 1196. 18 According to defendant, plaintiff “alleges only that Macomber was the Warden of CSP- 19 Sacramento on the day that Officer Sivyer used force, and his own allegations and matters of 20 judicial notice negate that there was an undefined policy, pattern or practice at CSP-Sacramento, 21 instituted by the Warden, to shoot inmates in the head.” ECF No. 34 at 9. But, as discussed in 22 the preceding section, the allegations of the complaint – that defendant continued a policy, pattern 23 or practice allowing correctional officers to shoot inmates in the head – are not negated by any 24 other document that the court may properly consider in ruling on this motion to dismiss. These 25 allegations suffice to allege a causal connection between Macomber’s conduct and plaintiff’s 26 injury. Accordingly, Macomber has not shown that the complaint should be dismissed at this 27 stage based on qualified immunity. 28 ///// 11 1 2 3 III. Conclusion and Recommendation For the foregoing reasons, it is hereby RECOMMENDED that defendants’ November 16, 2016 motion to dismiss (ECF No. 34) be denied. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 9 within the specified time may waive the right to appeal the District Court’s order. Turner v. 10 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 DATED: August 31, 2017. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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