Garcia v. Blahnik et al
Filing
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ORDER denying without prejudice plaintiff's 49 Motion to Appoint Counsel. Signed by Magistrate Judge Bernard G. Skomal on 8/15/16. (All non-registered users served via U.S. Mail Service)(kas)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Ruben Dario Garcia, Jr. ,
Case No.: 14cv875-LAB-BGS
Plaintiff,
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ORDER DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL
v.
R. Blahnik, et al. ,
Defendant.
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I.
Introduction
Plaintiff Ruben Dario Garcia, Jr., (“Plaintiff” or “Garcia”), a prisoner proceeding
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pro se and In Forma Pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983.
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(ECF No. 1.) Plaintiff filed this Motion to Appoint Counsel on April 29, 2016 (ECF No.
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49.) In support of his request, Plaintiff asserts that (1) he cannot afford to hire an
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attorney, (2) the case involves complex legal issues, (3) he lacks legal education, (4) he
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has an unspecified psychiatric disorder and takes anti-psychotic medication, (5) he is
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unable to conduct discovery, (6) Plaintiff lacks articulation, and (7) appointed counsel
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would promote judicial economy. (ECF No. 49 at 12-19.)
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II.
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Legal Standard
“The court may request an attorney to represent any person unable to afford
counsel.” 28 U.S.C.A. § 1915 (e)(1) (West 2006) (emphasis added). However, “it is
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well-established that there is generally no constitutional right to counsel in civil cases.”
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United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996) (citation omitted).
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Moreover, a civil litigant does not have a right to appointed counsel to pursue a § 1983
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claim. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v.
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Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)); see also Hedges v. Resolution Trust
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Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994) (“[T]here is no absolute right to
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counsel in civil proceedings.”) (citation omitted). Federal courts do not have the
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authority “to make coercive appointments of counsel.” Mallard v. United States District
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Court, 490 U.S. 296, 310 (1989); see also United States v. $292,888.04 in U.S. Currency,
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54 F.3d 564, 569 (9th Cir. 1995).
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Nevertheless, district courts have considerable discretion, pursuant to 28 U.S.C. §
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1915(e)(1), to “request” that an attorney voluntarily represent a civil litigant proceeding
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In Forma Pauperis upon a finding of “exceptional circumstances.” United States v.
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30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 1986); See Agyeman v. Corrections
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Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004); Rand, 113 F.3d at 1525. A
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finding of exceptional circumstances requires an evaluation of the plaintiff’s likelihood of
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success and ability to articulate his claims “’in light of the complexity of the legal issues
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involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328,
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1331 (9th Cir. 1986)). “’Neither of these factors is dispositive and both must be viewed
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together before reaching a decision.’” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
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1991) (quoting Wilborn, 789 F.2d at 1331).
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Analysis
A. Likelihood of Plaintiff’s Success on the Merits
Garcia must demonstrate that his non-frivolous claim is likely to succeed on the
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merits. See Wilborn, 789 F.2d at 1331. Where the court has insufficient information to
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determine the likelihood of success, the likelihood of success factor does not support a
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finding of exceptional circumstances. See Garcia v. Smith, No. 10cv1187 AJB (RBB),
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2012 U.S. Dist. LEXIS 89147, at *10 (S.D. Cal. June 27, 2012).
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Garcia’s Complaint alleges causes of action against twelve prison officials for: (1)
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retaliation in violation of the First Amendment (ECF No. 1 at 5); (2) denying his right to
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equal protection under the California Constitution (id. at 22); (3) violation of his right to
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privacy under the California Constitution (id. at 7, 9, 22-23.); and (4) retaliation for filing
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inmate appeals in violation of California law (id. at 22). The state law claims were
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dismissed without prejudice for failure to file a Government Claim with the Victims
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Compensation and Government Claims Board. (ECF Nos. 21, 26.) The only surviving
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claim is for retaliation in violation of Garcia’s First Amendment rights relating to the
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filing of prisoner grievances. (Id.) Garcia asserts that he was subjected to disciplinary
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proceedings in retaliation for his filing of numerous administrative appeals. (ECF No. 1)
Government officials may not retaliate against prisoners who exercise their First
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Amendment rights. Vignolo v. Miller, 120 F.3d 1075, 1077-78 (9th Cir. 1997). Plaintiff
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must establish each of the following in order to prevail on his claim of retaliation: (1)
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prison officials took adverse action against the inmate; (2) the adverse action was taken
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because the inmate engaged in protected conduct; (3) the adverse action actually chilled
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the inmate's First Amendment rights; and (4) the adverse action did not serve a legitimate
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penological purpose. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005).
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When the court evaluates retaliation claims, prison officials are generally accorded
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deference regarding whether conduct serves a legitimate penological purpose. See Pratt
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v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). However, prisoner retaliation allegations
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are reviewed with particular care. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
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Garcia did not address the likelihood of success on the merits in his motion, and
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the likelihood of success is not evident from the face of his complaint. (ECF No. 1, 49.)
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Discovery is now closed. The defendants have filed a motion for summary judgment on
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August 8, 2016. (ECF No. 54.) Give above, the Court has insufficient information to
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evaluate whether Plaintiff’s retaliation claims will survive summary judgment.
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Therefore, this factor does not support a finding of exceptional circumstances, warranting
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a judicial request for a voluntary legal counsel.
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B. Plaintiff’s Ability to Proceed Without Counsel
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A finding of exceptional circumstances requires an evaluation of Plaintiff’s ability
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to articulate his claims in light of the complexity of the issues involved. Agyeman, 390
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F.3d at 1103 (citing Wilborn, 789 F.2d at 1331). Garcia asserts that the facts and legal
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issues of his case are complex and extremely difficult for Garcia to proceed without an
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appointed counsel because: (1) he is unable to conduct discovery, (2) he lacks articulation
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and legal education, and (3) he has a psychiatric disorder and takes anti-psychotic
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medication. (ECF No. 49 at 14-18.)
1. Plaintiff’s cause of action and discovery dispute are not overly
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complex.
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A case involving a single cause of action against prison officials for retaliation,
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which relate to “Plaintiff's allegations that he was harassed and/or threatened by
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Defendants in retaliation for filing an administrative appeal, or that certain Defendants
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filed false incident reports against him” is not overly complex. See Garcia v. Smith, No.
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10cv1187 AJB (RBB), 2014 U.S. Dist. LEXIS 5921, at *14 (S.D. Cal. Jan. 16, 2014)
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(citing Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997))(denying appointment of
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counsel request where single cause of action of retaliation remained); see also Garcia v.
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Strayhorn, No. 3:13-cv-0807 BEN (KSC), 2016 U.S. Dist. LEXIS 72231, at *4 (S.D. Cal.
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June 1, 2016) (denying appointment of counsel request where single cause of action of
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retaliation remained). Garcia’s only surviving cause of action against defendants, twelve
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prison officials, is retaliation for Garcia’s filing of numerous administrative appeals.
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(ECF No. 1, 21, 26.) Therefore, Garcia’s current cause of action is not overly complex.
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Additionally, Garcia argues that his case was complex because it involved a
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discovery dispute. Fact discovery closed on May 12, 2016. (ECF No. 44 at 2-3.) As of
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August 15, 2016, there are no discovery disputes pending before the Court. Garcia’s
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argument regarding complexity due to his case involving a discovery dispute is moot.
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2. Plaintiff is articulate notwithstanding Plaintiff’s lack of legal
education.
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After a review of the instant motion, the documents submitted by Plaintiff in
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support thereof, and the documents filed by Plaintiff to date, the Court finds Plaintiff has
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a sufficient grasp of the case, the legal issues involved, and is able to adequately
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prosecute the case without appointed counsel. Throughout this litigation, Plaintiff has
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filed a complaint, (ECF No. 1), an objection to report and recommendation, (ECF No.
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25), a notices of appeal, (ECF No. 28), a motions for an extension of time, (ECF No. 43,),
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a motion to compel discovery, (ECF No. 46), supplemental briefing regarding his motion
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to compel discovery, (ECF No. 51), and a reply to response to Motion for Discovery,
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(ECF No. 57). In each of the aforementioned documents, Plaintiff has clearly articulated
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his legal theories, and despite his alleged legal shortcomings, has demonstrated that he is
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capable of prosecuting his case without counsel.
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Pro se litigants are afforded some leniency to compensate for their lack of legal
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training. See Garcia v. Strayhorn, No. 3:13-cv-0807 BEN (KSC) (S.D. Cal. May 14,
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2015) (Denying Ruben Dario Garcia, Jr., motion to appoint counsel). “In civil rights
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cases where the plaintiff appears pro se, the court must construe the pleadings liberally
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and must afford plaintiff the benefit of any doubt.” Jackson v. Carey, 353 F.3d 750, 757
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(9th Cir. 2003) (internal citation omitted). This also applies to motions. Bernhardt v. Los
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Angeles County, 339 F.3d 920, 925 (9th Cir. 2003). Accordingly, plaintiff’s pro se status
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will be taken into consideration by the Court when his filings are reviewed.
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3. Plaintiff’s psychiatric disorder alone is not an exceptional
circumstance.
Plaintiff asserts that the “Enhanced Outpatient” treatment for Plaintiff’s mental
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illness inhibits his ability to function and limits his access to legal resources. (ECF No.
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49 at 5-6.) Plaintiff alleges the side effects of Plaintiff’s anti-psychotic medication
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obstructs his “ability to concentrate, think, understand, comprehend. . . .” (Id. at 5.)
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Furthermore, Plaintiff alleges the prison library is only accessible on Fridays because
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Plaintiff has “daily therapy.” (Id. at 6.)
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Plaintiff must plead facts which show he has an insufficient grasp of his case or the
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legal issues involved and an inadequate ability to articulate the factual basis of his claim.
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Agyeman, 390 F.3d at 1103. Plaintiff has not plead sufficiently specific facts relating to
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his psychiatric disorder and anti-psychotic medication. The Court notes there is a broad
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range of psychiatric disorders and anti-psychotic medications with differing symptoms
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and side effects, respectively. Additionally, Plaintiff did not specify when he was
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admitted to the “Enhanced Outpatient” treatment.
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Nevertheless, Plaintiff’s psychiatric disorder and limited access to the law library
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have not prevented him from filing a well-articulated complaint and other motions with
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the Court. (See ECF Nos. 1, 25, 28, 43, 46, 51, 57.) Therefore, this factor does not
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support a finding of exceptional circumstances, warranting a judicial request for a
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voluntary legal counsel.
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Conclusion
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For the foregoing reasons, the Court finds that Plaintiff has not alleged the
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requisite “exceptional circumstances” and hereby DENIES Plaintiff’s Request for
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Appointment of Counsel without prejudice.
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IT IS SO ORDERED.
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Dated: August 15, 2016
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