Sandoval v. Guldseth et al

Filing 5

ORDER: (1) Granting #2 Motion for Leave to Proceed in forma pauperis. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR); (2) Dismissing Complaint for Failing to State a Claim Pursuant to 28 U.S.C. 1915(e)(2) and 1915A(b). Signed by Judge Cynthia Bashant on 10/7/2019. (All non-registered users served via U.S. Mail Service)(mme) (jao).

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 ALBERTO SANDOVAL, CDCR #AM-0186, Case No.: 19-cv-01584-BAS-RBB ORDER: 12 Plaintiff, 13 v. 14 15 16 (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 3]; DAVID GULDSETH, M.D.; ROMAN B. CHAM, M.D., AND Defendants. 19 (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) 20 On August 23, 2019, Alberto Sandoval (“Plaintiff”), currently incarcerated at the 21 Richard J. Donovan Correctional Facility (“RJD”) located in San Diego, California, and 22 proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 23 1 (“Compl.”.) Plaintiff has not paid the civil filing fee required by 28 U.S.C. § 1914(a); 24 instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 25 § 1915(a). (ECF No. 2 (“IFP Motion”).) 26 I. 17 18 Motion to Proceed In Forma Pauperis 27 All parties instituting any civil action, suit, or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of -119cv1584 1 $400. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 5 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 6 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his 7 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 8 F.3d 844, 847 (9th Cir. 2002). 9 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 10 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 11 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 12 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 13 trust account statement, the Court assesses an initial payment of 20% of the average 14 monthly deposits in the account for the past six months, or the average monthly balance in 15 the account for the past six months, whichever is greater, unless the prisoner has no assets. 16 See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 17 prisoner then collects subsequent payments, assessed at 20% of the preceding month’s 18 income, in any month in which his account exceeds $10, and forwards those payments to 19 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 20 In support of his IFP Motion, Plaintiff has submitted a copy of his Prison Certificate 21 and Inmate Statement Report from the California Department of Corrections (“CDCR”) 22 recording his balances and deposits over the six-month period preceding the filing of his 23 Complaint. (ECF No. 3.) These reports show Plaintiff has had no money in his trust 24 account for the six months preceding the filing of this action, and that he had a zero balance 25 at the time of filing. (ECF No. 3 at 1.) Plaintiff, as a prisoner with no assets, cannot be 26 1 27 28 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. -219cv1584 1 precluded from filing suit solely because he has no means to pay the initial filing fee or a 2 portion thereof. 28 U.S.C. § 1915(b)(4); Bruce v. Samuels, 136 S. Ct. 627, 630 (2016); 3 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 4 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 5 the lack of funds available to him when payment is ordered.”). 6 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2), but 7 declines to “exact” any initial filing fee because his trust account statement shows he “has 8 no means to pay it,” Bruce, 136 S. Ct. at 629, and directs the Secretary of CDCR to collect 9 the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 and forward them 10 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 11 U.S.C. § 1915(b)(1). 12 II. Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 13 A. Standard of Review 14 Notwithstanding Plaintiff’s IFP status or the payment of any partial filing fees, the 15 PLRA also obligates the Court to review complaints filed by all persons proceeding IFP 16 and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 17 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 18 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 19 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 20 statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are 21 frivolous, malicious, fail to state a claim, or which seek damages from defendants who are 22 immune from suit. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Lopez v. Smith, 203 23 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 24 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 25 All complaints must contain “a short and plain statement of the claim showing that 26 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 27 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 28 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) -319cv1584 1 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether 2 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires 3 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere 4 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also 5 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 6 “When there are well-pleaded factual allegations, a court should assume their 7 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 8 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 9 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 10 allegations of material fact and must construe those facts in the light most favorable to the 11 plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 12 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 13 However, while the court “ha[s] an obligation where the petitioner is pro se, 14 particularly in civil rights cases, to construe the pleadings liberally and to afford the 15 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 16 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply 17 essential elements of claims that were not initially pled.” Ivey v. Board of Regents of the 18 University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 19 B. Plaintiff’s Allegations 20 Plaintiff has been diagnosed with “significant degenerative joint disease with 21 significant full-thickness cartilage loss involving the medial compartment, as well as 22 medial joint line.” (Compl. ¶ 24.) As a result, Plaintiff “suffers from extreme pain” and 23 “significant discomfort” in his right knee. (Id. ¶ 25.) Plaintiff “require[s] the use of a 24 wheelchair for his extreme mobility limitations.” (Id. ¶ 26.) He has been designated 25 “Disability Impacting Placement Intermittent Wheelchair (DPO) status” which he indicates 26 is an “ADA designation.” (Id.) 27 Plaintiff alleges he “suffers from persistent pain and swelling to the right knee, which 28 hinders his ability to walk and has created sporadic sleepless patterns.” (Id. ¶ 27.) Plaintiff -419cv1584 1 claims an orthopedic surgeon wrote in “consultation notes” dated January 12, 2016 that 2 “the only treatment that is going to alleviate [Plaintiff’s] discomfort is going to be a right 3 total knee replacement.” (Id. ¶ 28.) 4 Plaintiff has received other treatment including “injections on multiple occasions, 5 physical therapy, x-rays on multiple occasions and an MRI on November 10, 2015.” (Id. 6 ¶ 31.) Plaintiff alleges that he has been “recommended for right total knee replacement 7 surgery” for a second time on April 26, 2018 by Defendant Cham. (Id. ¶ 32.) Plaintiff 8 claims to have been “ineffectively treated with nonsteroidal anti-inflammatory 9 medications” for his pain. (Id. ¶ 33.) 10 Plaintiff contends that, despite this, Defendants refused to authorize Plaintiff’s knee 11 replacement surgery because they are unwilling to pay for it and because Defendants rely 12 on the allegedly mistaken opinion that there was an “increased risk of periprosthetic joint 13 infection due to Plaintiff’s obesity[,]” which Plaintiff maintains was only a “minimal to 14 moderate” risk. (Id. ¶¶ 34–35.) Plaintiff alleges that this conduct “constitutes deliberate 15 indifference to [his] serious medical needs” in violation of his Eighth Amendment right to 16 be free from cruel and unusual punishment and seeks injunctive relief, along with 17 compensatory and punitive damages. (Id. ¶¶ 136, 137–41.) 18 19 C. Applicable Law 1. 42 U.S.C. § 1983 20 “Section 1983 creates a private right of action against individuals who, acting under 21 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 22 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 23 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 24 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations 25 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 26 right secured by the Constitution and laws of the United States, and (2) that the deprivation 27 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 28 698 F.3d 1128, 1138 (9th Cir. 2012). -519cv1584 2. 1 Eighth Amendment Claim 2 Only “deliberate indifference to serious medical needs of prisoners constitutes the 3 unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment.” 4 Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation and internal quotation marks omitted). 5 “A determination of ‘deliberate indifference’ involves an examination of two elements: (1) 6 the seriousness of the prisoner’s medical need and (2) the nature of the defendant’s 7 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled 8 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) 9 (quoting Estelle, 429 U.S. at 104). 10 “Because society does not expect that prisoners will have unqualified access to 11 health care, deliberate indifference to medical needs amounts to an Eighth Amendment 12 violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992), 13 citing Estelle, 429 U.S. at 103-104. “A ‘serious’ medical need exists if the failure to treat 14 a prisoner’s condition could result in further significant injury or the ‘unnecessary and 15 wanton infliction of pain.’” McGuckin, 914 F.2d at 1059 (quoting Estelle, 429 U.S. at 16 104). “The existence of an injury that a reasonable doctor or patient would find important 17 and worthy of comment or treatment; the presence of a medical condition that significantly 18 affects an individual’s daily activities; or the existence of chronic and substantial pain are 19 examples of indications that a prisoner has a ‘serious’ need for medical treatment.” Id., 20 citing Wood v. Housewright, 900 F.2d 1332, 1337–41 (9th Cir. 1990); Hunt v. Dental 21 Dept., 865 F.2d 198, 200–01 (9th Cir. 1989). 22 D. Analysis 23 Upon review of the Complaint, the Court finds that Plaintiff has failed to state claims 24 for an Eighth Amendment violations against Defendants Guldseth and Cham and has 25 improperly joined the remaining Defendants to this action. For these reasons, more fully 26 explained below, the Court dismisses the Complaint with leave to amend and dismisses 27 Defendants Toor, Singh, and Shwe without prejudice. 28 -619cv1584 1. 1 Plaintiff’s Eighth Amendment Claim 2 At the screening stage of these proceedings, the Court will assume that Plaintiff’s 3 allegation of having suffered from a “large complex tear of the medial meniscus” (Compl. 4 ¶ 24) in his knee is sufficient to show he suffered an objectively serious medical need. See 5 McGuckin, 914 F.2d at 1059. 6 However, even assuming Plaintiff’s medicals needs were sufficiently serious, his 7 Complaint fails to include any further “factual content” to show that either Defendant 8 Guldseth (“Dr. Guldseth”) or Defendant Cham (“Dr. Cham”) acted with “deliberate 9 indifference” to those needs.2 McGuckin, 914 F.2d at 1060; see also Jett v. Penner, 439 10 F.3d 1091, 1096 (9th Cir. 2006); Iqbal, 556 U.S. at 678. Plaintiff alleges that he was first examined by Dr. Guldseth on February 8, 2017. 11 12 (Compl. ¶ 37.) At this examination, Dr. Guldseth purportedly determined to treat 13 Plaintiff’s medical condition with “pain medication” rather than rely on a recommendation 14 from a different physician that Plaintiff have “right total knee replacement.” (Id. ¶ 39.) 15 When Plaintiff was examined again by Dr. Guldseth on April 26, 2017, Dr. Guldseth 16 allegedly ordered an x-ray of Plaintiff’s knee and physical therapy. (Id. ¶ 46.) Ultimately, 17 Dr. Guldseth referred Plaintiff to Dr. Cham, an Orthopedic Specialist, in January of 2018. 18 (Id. ¶ 49.) In April of 2018, Plaintiff was examined by Dr. Cham for a “pre-operative visit” 19 in which they “reviewed and discussed Plaintiff’s medical history of MRSA infection, 20 diabetes, and obesity.” (Id. ¶ 52.) Plaintiff claims Dr. Cham “addressed the risk of 21 complications with the surgery, including infection” and recommended that he “stop using 22 morphine” prior to the surgery. (Id. ¶ 53.) Dr. Cham also “recommended Plaintiff lose 23 weight prior” to proceeding with surgery. (Id.) Plaintiff was scheduled for surgery on May 9, 2018 but the surgery was cancelled 24 25 26 27 28 2 Plaintiff names five medical professionals as defendants in this action. (Compl. ¶¶ 9–23.) However, Plaintiff only identifies “[t]he events giving rise to the claims against Defendants David Guldseth, M.D. and Roman B. Cham, M.D. in this Complaint arose in the Country of San Diego, CA.” (Id. ¶ 2.) The Court addresses the joinder of the remaining Defendants named in this action in Section II.D.2 of this Order. -719cv1584 1 due to Dr. Guldseth’s allegedly “unqualified determination that the surgery would not be 2 appropriate until Plaintiff loses 50 lbs. and comes off the morphine pain treatment.” (Id. 3 ¶ 57.) However, it was later clarified that Dr. Cham cancelled his surgery. (See id. at 12- 4 13.) Plaintiff denies that there was ever any specific recommendation that he lose weight 5 prior to surgery. (Id. ¶ 65.) 6 To state an Eighth Amendment claim, Plaintiff must include “further factual 7 enhancement,” Iqbal, 556 U.S. at 678, which demonstrates both Guldseth and Cham’s 8 “purposeful act or failure to respond to [his] pain or possible medical need,” and the “harm 9 caused by [this] indifference.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) 10 (citing Jett, 439 F.3d at 1096). This is because to be deliberately indifferent, Drs. Guldseth 11 and Cham’s acts or omissions must entail more than Plaintiff has alleged here—a 12 difference of opinion as to whether Plaintiff was medically cleared for surgery. Snow v. 13 McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (citation and quotation marks omitted); 14 Wilhelm, 680 F.3d at 1122. To the extent Plaintiff objects to the decisions made by these 15 Defendants regarding the need to lose weight prior to surgery, “[a] difference of opinion 16 between a physician and the prisoner–or between medical professionals–concerning what 17 medical care is appropriate does not amount to deliberate indifference.” Snow, 681 F.3d at 18 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)); Wilhelm, 680 F.3d at 1122– 19 23. Instead, Plaintiff must plead facts sufficient to “show that the course of treatment the 20 doctors chose was medically unacceptable under the circumstances and that the defendants 21 chose this course in conscious disregard of an excessive risk to [his] health.” Snow, 681 22 F.3d at 988 (citation and internal quotations omitted). 23 Accordingly, the Court finds that the Complaint fails to state a claim for deliberate 24 indifference under the Eighth Amendment against either Drs. Guldseth or Cham. 25 Therefore, it is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. 26 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d 27 at 1004. Because he is proceeding pro se, however, the Court having now provided him 28 with “notice of the deficiencies in his complaint” will also grant Plaintiff an opportunity to -819cv1584 1 amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 2 963 F.2d 1258, 1261 (9th Cir. 1992)). 2. 3 Misjoinder 4 Plaintiff also alleges claims against medical personnel when he was previously 5 housed at Valley State Prison (“VSP”) “between the period of January 2015 through 6 February 2, 2017.” (Compl. ¶ 89.) Federal Rule of Civil Procedure 20 states that 7 Defendants may be joined in one action if “any right to relief is asserted against them 8 jointly, severally, or in the alternative with respect to or arising out of the same transaction, 9 occurrence, or series of transactions or occurrences” and “any question of law or fact 10 common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2)(A-B). 11 Here, Plaintiff’s claims against prison officials at VSP do not arise out of the same 12 set of “transactions or occurrences” as the claims against the RJD prison officials. As 13 stated above, a “determination of ‘deliberate indifference’ involves an examination of two 14 elements: (1) the seriousness of the prisoner’s medical need and (2) the nature of the 15 defendant’s response to that need.” McGuckin, 974 F.2d at 1059. This requires a different 16 factual analysis as to the claims raised against VSP officials as opposed to the RJD officials. 17 Moreover, it appears that some of Plaintiff’s claims against VSP officials may be subject 18 to dismissal as they are likely barred pursuant to the applicable statute of limitations. 19 If the requirements for permissive joinder under Rule 20 are not satisfied, courts may 20 look to Rule 21. Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). Under Rule 21 21, where a court finds misjoinder, “on its own” it may “drop a party” or “sever any claim 22 against a party.” Fed. R. Civ. P. 21. Therefore, the Court severs all claims against 23 Defendants Toor, Singh, and Shwe from this action and directs the Clerk of Court to 24 terminate these Defendants from the action. This decision is without prejudice to permit 25 Plaintiff to file a separate action in the appropriate venue regarding these claims. 26 III. Conclusion and Orders 27 For the reasons explained, the Court: 28 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) -919cv1584 1 2 (ECF No. 2); 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 3 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly 4 payments from his account in an amount equal to twenty percent (20%) of the preceding 5 month’s income and forwarding those payments to the Clerk of the Court each time the 6 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS 7 MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO 8 THIS ACTION; 9 10 11 12 13 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 4. DISMISSES Defendants Toor, Singh, and Shwe pursuant to Fed.R.Civ.P. 21 and without prejudice to re-filing in a separate action; 5. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 14 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and 15 GRANTS him forty-five (45) days leave from the date of this Order in which to file an 16 Amended Complaint which cures all the deficiencies of pleading noted as to Defendants 17 Guldseth and Cham only. Plaintiff’s Amended Complaint must be complete by itself 18 without reference to his original pleading. Defendants not named and any claim not re- 19 alleged in his Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; 20 Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) 21 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 22 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not 23 re-alleged in an amended pleading may be “considered waived if not repled.”). 24 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 25 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 26 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 27 1915A(b), and his failure to prosecute in compliance with a court order requiring 28 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does - 10 19cv1584 1 not take advantage of the opportunity to fix his complaint, a district court may convert the 2 dismissal of the complaint into dismissal of the entire action.”). 3 4 5 6. The Clerk of Court is directed to mail a court approved form civil rights complaint to Plaintiff. IT IS SO ORDERED. 6 7 Dated: October 7, 2019 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 19cv1584

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