McCranie v. Gavinski et al
Filing
39
ORDER by Chief Judge Philip A. Brimmer on 9/24/2024, re: 16 Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(B)(6) is GRANTED in part and DENIED in part. ORDERED that plaintiff's first claim is DISMISSED with prejudice against defendants Rene Acuna and Karla Gutierrez. ORDERED that plaintiff's second claim is DISMISSED with prejudice. ORDERED that defendants Rene Acuna and Karla Gutierrez are dismissed from this case.(dgumb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 23-cv-03347-PAB-KAS
STEVEN MCCRANIE,
Plaintiff,
v.
MOLLY GAVINSKI,
RENE ACUNA,
KARLA GUTIERREZ, and
JOHN DOE # 1,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion to Dismiss Complaint Pursuant to
Fed. R. Civ. P. 12(B)(6) [Docket No. 16] filed by defendants Molly Gavinski (“Officer
Gavinski”), Rene Acuna (“Sergeant Acuna”), and Karla Gutierrez (“Sergeant Gutierrez”)
(collectively, the “defendants”). Plaintiff Steven McCranie filed a response, Docket No.
26, and defendants filed a reply. Docket No. 31. The Court has jurisdiction pursuant to
28 U.S.C. § 1331.
I.
BACKGROUND 1
On January 12, 2022, Mr. McCranie was incarcerated at the Colorado State
Penitentiary (“CSP”), which is a Level V security correctional institution managed by the
Colorado Department of Corrections (“CDOC”). Docket No. 1 at 1, 3, ¶ 13. CSP
The facts below are taken from plaintiff’s complaint, Docket No. 1, and are
presumed to be true for purposes of ruling on defendants’ motion to dismiss. See
Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011).
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houses some of the most violent and dangerous offenders in the state. Id. at 3, ¶ 13.
Officer Gavinski, Sergeant Acuna, Sergeant Gutierrez, and John Doe # 1 worked at
CSP and were employed by CDOC. Id., ¶¶ 7-10. Sergeant Acuna and Sergeant
Gutierrez supervised Officer Gavinski and John Doe # 1, an employee of CSP. Id. at 3,
13, ¶¶ 10, 102. This action arises from an assault at CSP on January 12, 2022, where
inmate Mark Daniels attacked Mr. McCranie. Id. at 1-2.
CSP has six “pods” for inmate housing. Id. at 4 n.1. Each pod contains up to
eight “day halls” and each day hall contains approximately 15 single-offender cells. Id.
Absent special circumstances, such as a medical appointment, inmates do not exit their
day halls. Id. Generally, CSP policies prohibit an inmate from moving between different
parts of the prison without at least one escort officer accompanying the inmate. Id. at 5,
¶¶ 22-23. CSP houses inmates who are at risk of harm together in designated day halls
for their protection, including inmates with mental disabilities and inmates who have
disassociated from gangs. Id. at 3-4, ¶¶ 14, 16. Inmates and prison staff refer to these
designated day halls as “Soft Pods.” Id. at 3, ¶ 14. The CSP officer in the control room
must confirm that an inmate is authorized to enter the Soft Pod before opening the door.
Id. at 4, ¶ 19.
On January 12, 2022, Mr. McCranie was housed in F-Pod’s Day Hall 5, which
was the designated Soft Pod at CSP. Id. at 7, ¶ 41. Mr. McCranie was housed in the
Soft Pod because he renounced his gang affiliation and received death threats from Mr.
Daniels. Id., ¶¶ 42-43. At the time of the assault, defendants knew that Mr. Daniels
was an active member of the Aryan Syndicate gang, which is a white supremacist gang
with an extensive history of assaulting and murdering other inmates in prison. Id. at 5,
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¶¶ 26-27. Defendants knew that Mr. Daniels had a violent history of assaulting other
inmates and prison staff based on information from Mr. Daniels’ inmate file and staff
briefings. Id. at 5-6, ¶¶ 29-33. Mr. Daniels threatened Mr. McCranie and Mr.
McCranie’s friends who were not incarcerated via letters and phone calls. Id. at 6, ¶ 36.
Chelsea Gonzalez, Mr. McCranie’s friend, reported to the CSP warden that Mr. Daniels
threatened her and Mr. McCranie. Id., ¶ 37. Due to the threats, CSP issued a “keepseparate” order for Mr. McCranie and Mr. Daniels. Id., ¶ 38. Defendants knew about
the keep-separate order and knew that it was issued to protect Mr. McCranie from Mr.
Daniels. Id. at 6, 8, ¶¶ 39-40, 55. Defendants knew that Mr. Daniels posed a significant
safety risk to other inmates at CSP. Id. at 6, ¶ 35. Defendants were aware that Mr.
McCranie was housed in the Soft Pod for his protection. Id. at 2, 14, ¶ 104.
Officer Gavinski had worked at CSP for several years and knew that inmates
would often try to enter areas where they were not allowed. Id. at 8, ¶ 51. Based on
her training and experience, Officer Gavinski knew there were significant safety risks
associated with allowing inmates to enter a day hall where they did not live. Id. Officer
Gavinski knew that Day Hall 5 was the designated Soft Pod and that inmates in that day
hall were particularly vulnerable to attacks and retaliation by other inmates. Id., ¶ 52.
At approximately 1:20 p.m. on January 12, 2022, Officer Gavinski was stationed
in the F-Pod control center where she was responsible for controlling the doors to the
day halls in F-Pod. Id. at 7, ¶¶ 44-45. Inmates and staff could only enter the day halls if
Officer Gavinski opened the door from within the control center. Id., ¶ 45. Sergeant
Acuna was in the control center with Officer Gavinski and was the control center
supervisor. Id. at 8-9, 14, ¶¶ 50, 64, 105. Sergeant Gutierrez was stationed within the
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F-Pod outside of Day Hall 5 and Day Hall 6. Id. at 8, ¶ 50. Around 1:20 p.m., defendant
John Doe # 1 escorted Mr. Daniels to his day hall, which was Day Hall 6. Id. at 7, ¶ 46.
John Doe # 1 brought Mr. Daniels to the door of Day Hall 6 but did not ensure that Mr.
Daniels entered Day Hall 6. Id., ¶ 48. Instead, he allowed Mr. Daniels to freely wander
outside of the control room. Id., ¶ 47. Officer Gavinski observed John Doe # 1 leave
Mr. Daniels unattended at the entry to Day Hall 6. Id. at 7, 9, ¶¶ 49, 60. Sergeant
Acuna and Sergeant Gutierrez observed John Doe # 1 walk away before ensuring that
Mr. Daniels entered Day Hall 6 and did not instruct John Doe # 1 to remain with Mr.
Daniels. Id. at 8, 14, ¶¶ 50, 107, 110. Defendants knew that Mr. Daniels was housed in
Day Hall 6, not Day Hall 5. Id. at 8, ¶¶ 53-54.
While standing outside of the control room, Mr. Daniels asked Sergeant Acuna,
“Who was operating the control room?” Id., ¶ 56. Sergeant Acuna instructed Mr.
Daniels to go to the control window to find out. Id. Mr. Daniels walked to the control
room window without an escort and recognized Officer Gavinski inside the control room.
Id., ¶ 57. Officer Gavinski saw Mr. Daniels at the control room window and heard Mr.
Daniels ask her to open Day Hall 5 at least two or three times by stating, “control, give
me day hall 5.” Id. at 9, ¶ 58. When Officer Gavinski heard Mr. Daniels repeatedly ask
for Day Hall 5 to be opened, she recognized that Mr. Daniels was attempting to enter
the wrong day hall. Id., ¶ 59. Despite knowing that Mr. Daniels was not allowed in Day
Hall 5 and that he posed a significant risk to Mr. McCranie, Officer Gavinski opened the
door to Day Hall 5, which allowed Mr. Daniels to enter Day Hall 5. Id., ¶ 61. Officer
Gavinski then said, “oh my god, I screwed up . . . I let the wrong offender into day hall
5.” Id., ¶ 62.
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Inside the control room, Sergeant Acuna heard Mr. Daniels ask for Day Hall 5 to
be opened, and she knew that Mr. Daniels was not allowed inside Day Hall 5. Id.,
¶¶ 63, 65. Sergeant Gutierrez was standing “a few feet away” from Mr. Daniels before
he entered Day Hall 5 and knew that he was not allowed in Day Hall 5. Id. at 10, ¶¶ 6768.
After Mr. Daniels entered Day Hall 5, Sergeant Gutierrez told Officer Gavinski
and Sergeant Acuna to close the door to Day Hall 5. Id., ¶ 71. Defendants observed
Mr. Daniels scan the room for Mr. McCranie and run aggressively towards Mr.
McCranie. Id., ¶ 73. Mr. Daniels delivered approximately ten punches, kicks, and kneestrikes to Mr. McCranie’s head and face. Id., ¶ 74. Mr. McCranie did not fight back. Id.
at 11, ¶ 77. During the assault, Sergeant Gutierrez deployed pepper spray on the
inmates through a tray slot to Day Hall 5. Id., ¶ 76. Mr. McCranie suffered significant
injuries from the assault, including bruising, lacerations, neck pain, and back pain. Id.,
¶ 80. CSP released Mr. McCranie from prison approximately one month after the
assault. Id., ¶ 81.
Mr. McCranie asserts two claims in his complaint pursuant to 42 U.S.C. § 1983:
(1) an Eighth Amendment claim against all defendants in their individual capacities for
failing to protect Mr. McCranie from the assault; and (2) an Eighth Amendment claim
against Sergeant Acuna and Sergeant Gutierrez in their individual capacities for failure
to supervise Officer Gavinski and John Doe # 1. Id. at 11-15, ¶¶ 82-113.
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II.
LEGAL STANDARD
A. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Twombly, 550 U.S. at 555) (alterations omitted). A court, however, does not need to
accept conclusory allegations. See, e.g., Hackford v. Babbit, 14 F.3d 1457, 1465 (10th
Cir. 1994) (“we are not bound by conclusory allegations, unwarranted inferences, or
legal conclusions.”).
“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not shown – that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations
and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]
claims across the line from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
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plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted).
B. Qualified Immunity
“Qualified immunity balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court should resolve
questions of qualified immunity at the earliest possible stage of litigation. Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified
immunity challenge still does not have a heightened pleading standard. Currier v.
Doran, 242 F.3d 905, 916-17 (10th Cir. 2001).
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Thus, to survive a motion to dismiss under Rule 12(b)(6) “where a qualified
immunity defense is implicated, the plaintiff ‘must allege facts sufficient to show
(assuming they are true) that the defendants plausibly violated their constitutional
rights.’” Hale v. Duvall, 268 F. Supp. 3d 1161, 1164 (D. Colo. 2017) (quoting Robbins v.
Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008)). When a
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defendant raises the defense of qualified immunity, a “plaintiff carries a two-part burden
to show: (1) that the defendant’s actions violated a federal constitutional or statutory
right, and, if so, (2) that the right was clearly established at the time of the defendant’s
unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017) (internal
quotation marks omitted). Courts are “permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case.” Pearson, 555 U.S.
at 236.
A constitutional right is clearly established if “the contours of the right [are]
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Surat v. Klamser, 52 F.4th 1261, 1276 (10th Cir. 2022). “Ordinarily,
in order for the law to be clearly established, there must be a Supreme Court or Tenth
Circuit decision on point, or the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains.” Torres v. Madrid, 60 F.4th
596, 603 (10th Cir. 2023); see also Irizarry v. Yehia, 38 F.4th 1282, 1293 (10th Cir.
2022). The relevant precedent is “considered on point if it involves materially similar
conduct or applies with obvious clarity to the conduct at issue.” Yehia, 38 F.4th at 1294
(emphasis in original); see also Shepherd v. Robbins, 55 F.4th 810, 815 (10th Cir.
2022). “To be clear, we do not require plaintiffs to engage in a scavenger hunt for a
prior case with identical facts. We ask whether the existing law provides fair warning to
a defendant.” Shepherd, 55 F.4th at 815 (citations omitted). “When the public official’s
conduct is egregious, even a general precedent would apply with obvious clarity.”
Yehia, 38 F.4th at 1294 (quoting Lowe v. Raemisch, 864 F.3d 1205, 1210 (10th Cir.
8
2017)); see also Surat, 52 F.4th at 1276 (noting that “there can be the rare obvious
case, where the unlawfulness of the officer’s conduct is sufficiently clear even though
existing precedent does not address similar circumstances”).
III.
ANALYSIS
Defendants move to dismiss all claims against Officer Gavinski, Sergeant Acuna,
and Sergeant Gutierrez pursuant to Fed. R. Civ. P. 12(b)(6). Docket No. 16 at 3-14. 2
Defendants also assert qualified immunity on all claims. Id. at 14-15.
A. First Claim – Officer Gavinski
Plaintiff’s first claim alleges that Officer Gavinski violated Mr. McCranie’s Eighth
Amendment rights by failing to protect him from the assault. Docket No. 1 at 11-13,
¶¶ 82-100. Specifically, plaintiff alleges that “Defendant Gavinski disregarded a
substantial risk of harm to Mr. McCranie when she allowed Mr. Daniels to enter Day Hall
#5 – without an escort and upon his own request.” Id. at 12, ¶ 86. Officer Gavinski
argues that Mr. McCranie has failed to plead a constitutional violation and she is entitled
to qualified immunity. Docket No. 16 at 3-9, 14-15.
1) Constitutional Violation
A violation of the Eighth Amendment occurs when a prison official is deliberately
indifferent to a substantial risk of serious harm to an inmate. Farmer v. Brennan, 511
U.S. 825, 828 (1994). Although prison officials have a duty to protect inmates from
violence at the hands of other inmates, not every injury resulting from violence between
inmates results in constitutional liability. Id. at 833-34. An inmate asserting an Eighth
Defendants do not move on behalf of the unnamed defendant John Doe # 1 to
dismiss the first claim against him. Accordingly, the Court declines to evaluate that
portion of claim one.
2
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Amendment claim must demonstrate that (1) objectively, the harm he complains of is
sufficiently “serious” to merit constitutional protection and (2) defendants were
subjectively aware of a substantial risk to plaintiff’s health or safety and acted in
purposeful disregard of that risk. Id. at 834, 847; Martinez v. Beggs, 563 F.3d 1082,
1088-89 (10th Cir. 2009); Requena v. Roberts, 893 F.3d 1195, 1214 (10th Cir. 2018).
To satisfy the objective component of the standard, an inmate “must show that
he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer,
511 U.S. at 834. A prison official’s “act or omission must result in the denial of ‘the
minimal civilized measure of life’s necessities.’” Id. (quoting Rhodes v. Chapman, 452
U.S. 337, 347 (1981)). To satisfy the subjective component of the standard, the inmate
must show both that the prison official was “aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists” and that the prison official
did in fact “draw the inference.” Id. at 837. A prisoner must establish “that the
defendants knew he faced a substantial risk of harm and disregarded that risk, by failing
to take reasonable measures to abate it.” Martinez, 563 F.3d at 1089 (citation omitted).
“[D]eliberate indifference entails something more than mere negligence,” but “less than
acts or omissions for the very purpose of causing harm or with knowledge that harm will
result.” Farmer, 511 U.S. at 835 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
“[W]hether a prison official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways, including inference from
circumstantial evidence.” Durkee v. Minor, 841 F.3d 872, 876 (10th Cir. 2016) (quoting
Farmer, 511 U.S. at 842).
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Defendants argue that plaintiff has failed to adequately plead the subjective
prong of the failure to protect claim because the allegations in the complaint
characterize Officer Gavinski’s actions as “accidental.” Docket No. 16 at 3-9. 3
Defendants assert that plaintiff does not allege that Officer Gavinski opened the door to
Day Hall 5 with any intent of exposing Mr. McCranie to an assault because the
complaint states that, “[c]ontemporaneous with opening the door for Mr. Daniels,
Defendant Gavinski said ‘oh my god, I screwed up . . . I let the wrong offender into day
hall 5.’” Id. at 5 (quoting Docket No. 1 at 9, 12, ¶¶ 62, 87). Defendants contend that Mr.
McCranie explicitly describes Officer Gavinski’s action as an “error.” Id. (quoting Docket
No. 1 at 12, ¶ 87). Defendants argue that the Tenth Circuit has repeatedly held that an
“accident” or “mistake” does not constitute deliberate indifference under the Eighth
Amendment. Id. at 8 (citing Farmer, 511 U.S. at 840; Estelle, 429 U.S. at 105;
McLemore v. Darr, 736 F. App’x 753, 756 (10th Cir. 2018) (unpublished)). Defendants
contend that the Tenth Circuit’s ruling in McLemore is “nearly identical” to the
circumstances in this case. Id. at 8-9.
Mr. McCranie responds that defendants’ argument ignores numerous relevant
allegations in the complaint and mischaracterizes Officer Gavinski’s contemporaneous
admission of wrongdoing. Docket No. 26 at 9. Mr. McCranie argues that the complaint
plausibly alleges that Officer Gavinski knew that Mr. McCranie was housed in the Soft
Pod for his protection and that there was a keep-separate order between Mr. Daniels
and Mr. McCranie, id. at 10, and that Officer Gavinski opened the door to Day Hall 5
Defendants do not challenge whether plaintiff has adequately pled the objective
prong of his first claim against Officer Gavinski. Accordingly, the Court assumes that
Mr. McCranie has plausibly alleged this element.
3
11
despite knowing that Mr. Daniels did not live there. Id. Plaintiff contends that Officer
Gavinski’s statement that she “screwed up” is plausibly read as an admission to being
deliberately indifferent. Id. at 9-10.
The Court finds that Mr. McCranie has plausibly alleged that Officer Gavinski was
subjectively aware of and disregarded a substantial risk to plaintiff’s safety. Officer
Gavinski knew that Mr. Daniels was an active member of the Aryan Syndicate gang,
had a violent history of assaulting other inmates, and posed a significant safety risk to
inmates at CSP. Docket No. 1 at 5-6, ¶¶ 26, 29-33, 35. Officer Gavinski was aware
that CSP issued a keep-separate order for Mr. McCranie and Mr. Daniels in order to
protect Mr. McCranie. Id. at 6, 8, ¶¶ 38-40, 55. Officer Gavinski knew that Mr.
McCranie was housed in Day Hall 5, the Soft Pod, for his protection and that inmates in
the Soft Pod were particularly vulnerable to attacks by other inmates. Id. at 2, 7-8,
¶¶ 41, 52. Officer Gavinski understood that Mr. Daniels was housed in Day Hall 6, not
Day Hall 5. Id. at 8, ¶¶ 53-54. On January 12, 2022, Officer Gavinski was stationed in
the F-Pod control center with the responsibility of controlling the doors to the day halls.
Id. at 7, ¶¶ 44-45. Inmates and staff could only enter the day halls if Officer Gavinski
opened the door from within the control center. Id., ¶ 45. Officer Gavinski observed Mr.
Daniels at the control room window and heard Mr. Daniels ask her to open Day Hall 5 at
least two or three times. Id. at 9, ¶ 58. When Officer Gavinski heard Mr. Daniels
repeatedly ask for Day Hall 5, she recognized that Mr. Daniels was attempting to enter
the wrong day hall. Id., ¶ 59. Despite knowing that Mr. Daniels was not allowed in Day
Hall 5 and that he posed a significant risk to Mr. McCranie, Officer Gavinski opened the
door to Day Hall 5, which allowed Mr. Daniels to enter Day Hall 5. Id., ¶ 61. The Court
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finds that these allegations are sufficient to plead that Officer Gavinski knew that Mr.
McCranie “faced a substantial risk of harm and disregarded that risk, by failing to take
reasonable measures to abate it.” See Martinez, 563 F.3d at 1089; see also Harter v.
Chafee Cnty., No. 22-cv-01759-STV, 2023 WL 8622736, at *7 (D. Colo. Dec. 13, 2023)
(finding that an officer’s “decision to open Plaintiff’s door despite knowing that Plaintiff
was in administrative protection and was at risk from other inmates, one of whom was
lurking outside the cell, constitutes deliberate indifference”).
Defendants are correct that accidental conduct is insufficient to establish the
subjective element of a deliberate indifference claim. See McLemore, 736 F. App’x at
756 (“accidental conduct does not show deliberate indifference”); see also Burke v.
Regalado, 935 F.3d 960, 992 (10th Cir. 2019) (noting that a medical professional’s
“accidental or inadvertent failure to provide adequate medical care” does not constitute
an Eighth Amendment violation (citation omitted)). However, the Court finds that the
complaint’s allegation that Officer Gavinski said “oh my god, I screwed up . . . I let the
wrong offender into day hall 5,” see Docket No. 1 at 9, ¶ 62, is not so plainly
inconsistent with the allegations that Officer Gavinski “recognized that Mr. Daniels was
attempting to enter the wrong day hall” and “[d]espite knowing that Mr. Daniels was not
allowed in Day Hall #5 and that he posed a significant risk to Mr. McCranie, Defendant
Gavinski opened the door,” id., ¶¶ 59, 61, that paragraphs 59 and 61 should be ignored.
See Schapker v. Waddell & Reed Fin., Inc., 2018 WL 1033277, at *10 (D. Kan. Feb. 22,
2018) (“although the court is mindful of the potentially contradictory allegations, on a
motion to dismiss under Rule 12(b)(6), the Court must accept Plaintiff’s well-pled
13
allegations as true”). 4 Accordingly, the Court finds that Mr. McCranie has plausibly pled
his Eighth Amendment claim against Officer Gavinski. 5
2) Clearly Established Law
The Court next considers whether the right was clearly established as of January
12, 2022. Defendants argue that they have found no Supreme Court or Tenth Circuit
authority establishing that the “accidental admittance of a potentially dangerous inmate
Some courts have found that where a plaintiff’s “own pleadings are internally
inconsistent, a court is neither obligated to reconcile nor accept the contradictory
allegations in the pleadings as true in deciding a motion to dismiss.” Pierce v. Fordham
Univ., Inc., 2016 WL 3093994, at *2 n.1 (S.D.N.Y. June 1, 2016), aff’d, 692 F. App’x 644
(2d Cir. 2017) (unpublished) (citations omitted); see also Jacoby v. Cable News
Network, Inc., 537 F. Supp. 3d 1303, 1313 n.5 (M.D. Fla. 2021), aff’d, 2021 WL
5858569 (11th Cir. Dec. 10, 2021) (“When the facts as plaintiff alleges are so
contradictory that doubt is cast upon their plausibility, the court may dismiss the claim.”
(citation, internal quotations, and alterations omitted)); Oliver v. Meow Wolf, Inc., 2020
WL 6939875, at *13 (D.N.M. Nov. 25, 2020) (finding that an “allegation [was] simply not
plausible in light of the more specific factual allegations that directly contradict it”).
Here, the Court finds that the allegations in the complaint are not so contradictory that
the Court should disregard paragraphs 59 and 61.
5 The Court finds that defendants’ cited case McLemore, involving an inmate-oninmate attack during medication distribution in a prison housing pod, is distinguishable.
See McLemore, 736 F. App’x at 754. In that case, it was undisputed at the summary
judgment stage that the prison guards used the following policy for distributing
medication: 1) an officer would remotely unlock each inmate’s cell door one at a time
for each inmate to retrieve medicine from the nurse; 2) the inmate would return to his
cell; and 3) once the inmate’s cell door was closed, as indicated by a light on the
officer’s desk, the officer would unlock the next inmate’s door. Id. It was undisputed
that, when plaintiff left his cell to get his medication, plaintiff’s cell door locked behind
him. Id. When plaintiff returned to his cell, the desk light indicated that his cell door was
locked, even though plaintiff was not inside his cell. Id. As a result, the officer then
opened another inmate’s door and that inmate attacked the plaintiff. Id. The Tenth
Circuit affirmed the district court’s grant of summary judgment to the officer on the
Eighth Amendment failure to protect claim because plaintiff “provided no evidence” that
the officer’s action of opening the other inmate’s door before plaintiff entered his cell
was “anything but accidental.” Id. at 755-56. This case is at the motion to dismiss
stage, not the summary judgment stage. Mr. McCranie’s well-pled allegations about
Officer Gavinski’s knowledge are sufficient to allege the subjective component of the
deliberate indifference standard at the pleading stage.
4
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into the wrong unit” violates clearly established law. Docket No. 16 at 15. Mr. McCranie
cites Durkee in support of his argument that Officer Gavinski violated his clearly
established rights under the Eighth Amendment. Docket No. 26 at 12-14. Mr.
McCranie argues that Durkee clearly establishes that when a substantial risk of an
inmate attack is “well-documented and expressly noted by prison officials prior to the
attack in question,” and when the defendant is informed of the risk of allowing an inmate
into an area where the inmate could commit an assault, such facts are sufficient to
overcome qualified immunity. Id. at 12-13 (citing Durkee, 841 F.3d at 874-77). 6
In Durkee, the Tenth Circuit denied qualified immunity to an officer, at the
summary judgment stage, for an inmate’s Eighth Amendment failure to protect claim
involving an inmate-on-inmate assault. Durkee, 841 F.3d at 874-76. In Durkee, the
inmate Ramos had a history of “aggressive behavior at the jail” and threatened the
plaintiff. Id. at 874. After plaintiff reported Ramos’ threats, a deputy issued an incident
report stating that plaintiff and Ramos could not attend any programs together or be in
the same hallways or booking areas. Id. Despite having notice of the incident report,
the defendant officer unshackled Ramos in the booking area of the jail when plaintiff
was in the nearby visitation room, which was visible to the booking area. Id. at 874-75.
Ramos took one or two steps towards the housing pod door, but then ran into the
unlocked visitation room and assaulted plaintiff. Id. at 875. The Tenth Circuit found that
where the facts as found by the district court show—as they do here—that a
substantial risk of an inmate attack against Plaintiff was well-documented and
In their reply, defendants argue that Durkee cannot provide clearly established
law because that case was decided at the summary judgment stage, not the motion to
dismiss stage. Docket No. 31 at 7-8. Defendants provide no legal authority in support
of their proposition that clearly established law for qualified immunity must originate
from a case at the same procedural posture. The Court rejects this argument.
6
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expressly noted by prison officials prior to the attack in question, and those facts
further show—as they do here—that [defendant] was informed of and
acknowledged the risk and was accompanying Ramos in an area where Ramos
and Plaintiff were visible to each other, such facts are sufficient to permit a jury to
find [defendant] had actual knowledge of the risk and disregarded it.
Id. at 875-76. With respect to the clearly established prong, the Tenth Circuit “easily
conclude[d]” that “a reasonable officer cognizant of Plaintiff’s presence in the unsecured
visitation room would have understood that unshackling Ramos in the booking area
posed a substantial risk of harm to Plaintiff in violation of the Eighth Amendment.” Id. at
876 n.2.
Similarly, here, Officer Gavinski knew that Mr. Daniels had a violent history of
assaulting other inmates and that CSP issued a keep-separate order for Mr. McCranie
and Mr. Daniels to protect plaintiff. Docket No. 1 at 5-6, ¶¶ 29-33, 38-40. Despite
knowing that Mr. Daniels was not allowed in Day Hall 5 and that he posed a significant
risk to Mr. McCranie, Officer Gavinski opened the door to Day Hall 5 and allowed Mr.
Daniels to enter the hall where Mr. McCranie was located. Id. at 7, 9, ¶¶ 41, 61. Based
on Durkee, a reasonable officer should have understood that opening the door to the
Soft Pod for Mr. Daniels when Mr. McCranie was in the Soft Pod posed a substantial
risk of harm to plaintiff. See Durkee, 841 F.3d at 875-76 & n.2; see also Harter, 2023
WL 8622736, at *8 (concluding that, based on Durkee, any reasonable officer would
have understood that opening plaintiff’s door in the administrative protection pod when
another inmate was “lurking outside the cell” would violate plaintiff’s constitutional
rights). As a result, the Court finds that Officer Gavinski is not entitled to qualified
immunity at this stage for the first claim. The Court therefore denies this portion of
defendants’ motion.
16
B. First Claim – Sergeant Acuna and Sergeant Gutierrez
Plaintiff’s first claim also alleges that Sergeant Acuna and Sergeant Gutierrez
violated Mr. McCranie’s Eighth Amendment rights by failing to protect him from the
assault. Docket No. 1 at 11-13, ¶¶ 82-100. The complaint alleges that “Defendants
Acuna and Gutierrez disregarded a substantial risk of harm to Mr. McCranie when they
failed to stop Defendant Gavinski from opening Day Hall #5 for Mr. Daniels and failed to
prevent Mr. Daniels from entering Day Hall #5.” Id. at 12, ¶ 88. The complaint further
alleges that the sergeants “disregarded a substantial risk of harm to Mr. McCranie when
they failed to ensure that Mr. Daniels had a security escort at all times.” Id., ¶ 90.
Sergeant Acuna and Sergeant Gutierrez argue that Mr. McCranie has failed to plead a
constitutional violation and they are entitled to qualified immunity. Docket No. 16 at 911, 14-15.
1) Constitutional Violation
Defendants argue that plaintiff has failed to plead the subjective prong of the
failure to protect claim against Sergeant Acuna and Sergeant Gutierrez. Id. at 9-11. 7
Defendants assert that the complaint contains no allegations suggesting that Sergeant
Acuna and Sergeant Gutierrez knew that Officer Gavinski was going to open the door to
allow Mr. Daniels into Day Hall 5. Id. at 11. Defendants argue that, under the
circumstances alleged in the complaint, “while Plaintiff was in Day Hall 5 with the door
closed, there was no substantial risk of harm from which Plaintiff needed protection.”
Docket No. 31 at 5. Without any knowledge that Officer Gavinski was going to admit
Defendants do not challenge whether plaintiff has adequately alleged the
objective prong of his first claim against Sergeant Acuna and Sergeant Gutierrez.
Accordingly, the Court assumes that Mr. McCranie has plausibly alleged this element.
7
17
the wrong offender into Day Hall 5, defendants argue that Sergeant Acuna and
Sergeant Gutierrez could not have had the subjective state of mind to violate plaintiff’s
Eighth Amendment rights. Docket No. 16 at 10.
Mr. McCranie responds that the complaint adequately alleges that Sergeant
Acuna and Sergeant Gutierrez were aware of numerous facts demonstrating that there
was a substantial risk to Mr. McCranie’s safety. Docket No. 26 at 10-11. Plaintiff
argues that both sergeants knew that Mr. Daniels lived in Day Hall 6 and that he had a
keep-separate order with Mr. McCranie. Id. Mr. McCranie asserts that neither sergeant
took any steps to ensure that Mr. Daniels was properly escorted. Id. at 11.
Furthermore, Sergeant Acuna was in the control room and heard Mr. Daniels ask for
Day Hall 5 to be opened. Id.
The Court finds that Mr. McCranie has failed to plausibly allege that Sergeant
Acuna and Sergeant Gutierrez knew that Mr. McCranie “faced a substantial risk of harm
and disregarded that risk, by failing to take reasonable measures to abate it.” See
Martinez, 563 F.3d at 1089. Although both sergeants observed that Mr. Daniels was
unescorted outside of Day Hall 6, see Docket No. 1 at 14, ¶¶ 107, 110, the complaint
does not allege that the sergeants knew of or disregarded a substantial risk of harm to
Mr. McCranie by failing to ensure that Mr. Daniels had a security escort. When Mr.
Daniels was wandering outside of the control room unescorted, Mr. McCranie was
inside Day Hall 5. Id. at 7, 10, ¶¶ 41, 47, 73. Inmates could only enter the day halls if
Officer Gavinski opened the door from within the control center. Id. at 7, ¶ 45. Because
Mr. McCranie alleges that he was behind a locked door to Day Hall 5, the complaint
18
does not plausibly allege that the sergeants knew that Mr. McCranie faced any risk of
harm when Mr. Daniels was merely wandering outside of the control room unattended.
The Court agrees with defendants that there are no allegations in the complaint
suggesting that Sergeant Acuna or Sergeant Gutierrez knew that Officer Gavinski would
open the door to Day Hall 5 for Mr. Daniels. The well-pled allegations of the complaint
state that the sergeants knew that Mr. Daniels was housed in Day Hall 6, Mr. McCranie
was housed in Day Hall 5, and that there was a keep-separate order between the
inmates for Mr. McCranie’s protection. Id. at 6, 8, 14, ¶¶ 38-40, 53-54, 104. Sergeant
Acuna heard Mr. Daniels ask Officer Gavinski to open Day Hall 5 and Sergeant
Gutierrez was standing “a few feet away” from Mr. Daniels. Id. at 9-10, ¶¶ 63, 65, 67.
However, there are no allegations suggesting that the sergeants knew that Officer
Gavinski would open the door to Day Hall 5 when Mr. Daniels requested entry to the
wrong day hall. Rather, the complaint alleges that Officer Gavinski had worked at CSP
for several years and that the control room officer must confirm that an inmate is
authorized to enter the Soft Pod before opening the door to the Soft Pod. Id. at 4, 8,
¶¶ 19, 51. There are no allegations suggesting that either sergeant was aware that
Officer Gavinski would deviate from this policy and admit the wrong inmate into Day Hall
5. Without any allegations suggesting that Sergeant Acuna or Sergeant Gutierrez knew
that Officer Gavinski would unlock the door to Day Hall 5, plaintiff has failed to allege
that Sergeant Acuna and Sergeant Gutierrez were subjectively aware of a substantial
risk to plaintiff’s safety and acted in purposeful disregard of that risk. See Farmer, 511
19
U.S. at 834, 847; Martinez, 563 F.3d at 1089. 8 Accordingly, the Court finds that Mr.
McCranie has failed to state an Eighth Amendment failure to protect claim against
Sergeant Acuna and Sergeant Gutierrez.
2) Clearly Established Law
Even if Mr. McCranie had plausibly alleged an Eighth Amendment violation
against the sergeants, the Court finds that Mr. McCranie has failed to satisfy the second
prong of the qualified immunity analysis. Mr. McCranie cites Durkee in support of his
argument that Sergeant Acuna and Sergeant Gutierrez violated clearly established law.
Docket No. 26 at 12-14. Plaintiff’s theory in this case is that Sergeant Acuna and
Sergeant Gutierrez disregarded a substantial risk of harm to Mr. McCranie “when they
failed to ensure that Mr. Daniels had a security escort at all times” and “when they failed
to stop Defendant Gavinski from opening Day Hall #5 for Mr. Daniels.” See Docket No.
1 at 12, ¶¶ 88, 90. However, Durkee did not involve an officer’s failure to ensure that an
inmate had a security escort. See Durkee, 841 F.3d at 874-75 (discussing how the
defendant officer was escorting and “accompanying” inmate Ramos immediately before
the assault occurred). Therefore, Durkee does not clearly establish that a sergeant
violates the Eighth Amendment by failing to ensure that an inmate has “a security escort
In his response, Mr. McCranie does not argue that the sergeants were
deliberately indifferent by failing to stop Mr. Daniels from entering Day Hall 5 in the
moments after Officer Gavinski opened the door. See Docket No. 26 at 10-11. Even if
Mr. McCranie had raised this argument, the Court would reject it because the complaint
contains no allegations indicating how fast Mr. Daniels ran into Day Hall 5 or whether
Sergeant Acuna or Sergeant Gutierrez had any realistic opportunity to stop Mr. Daniels
from entering Day Hall 5. See Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015) (“In
order to be liable for failure to intervene, the officers must have observed or had reason
to know of a constitutional violation and have had a realistic opportunity to intervene.”
(internal alterations, quotations, and citation omitted)).
8
20
at all times.” See Docket No. 1 at 12, ¶ 90. Moreover, Durkee involved an officer’s
affirmative action of “unshackling” Ramos, who had threatened plaintiff, in an unlocked
area where Ramos and plaintiff were visible to each other, thereby allowing Ramos to
access plaintiff. Durkee, 841 F.3d at 875-76 & n.2. In Durkee, there were no other
officers present at the scene who allegedly failed to prevent the defendant officer from
unshackling Ramos. See id. Therefore, Durkee would not put every reasonable officer
on notice that the failure to stop another officer from unpredictably unlocking the
protective custody pod door for an inmate who does not live in that pod would constitute
deliberate indifference. Accordingly, the Court finds that Durkee does not provide
clearly established law for Sergeant Acuna and Sergeant Gutierrez’s alleged conduct.
Mr. McCranie also appears to argue that Farmer constitutes clearly established
law because this Court previously held in another failure to protect case that Farmer
applied with obvious clarity. See Docket No. 26 at 14 n.1 (citing Wilson v. Pauls, No.
20-cv-00609-PAB-SKC, 2023 WL 2574375, at *6 (D. Colo. Mar. 20, 2023)). In Wilson,
the Court found that there was a genuine dispute of material fact at the summary
judgment stage as to whether the defendant officer actually witnessed an attack where
one inmate stabbed another inmate approximately sixty times with a shank. Wilson,
2023 WL 2574375, at *1, 5. Construing the evidence in plaintiff’s favor, the Court found
that “a jury could find that defendant saw the attack occurring nearly four minutes before
he called the emergency alert.” Id. at *6. The Court explained that “Farmer does not, in
all cases, settle every question with respect to prison officials who fail to prevent an
assault.” Id. (citing Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050-51 (9th Cir.
2002) (holding that it is not always sufficient, for purposes of the second prong of the
21
qualified immunity analysis, “that Farmer clearly states the general rule that prison
officials cannot deliberately disregard a substantial risk of serious harm to an inmate”)).
However, the Court found that, under Farmer and other Tenth Circuit cases, “any
reasonable guard in defendant’s position would have known that the failure to take any
action for four minutes while witnessing an inmate repeatedly stab another inmate with
a shank violates the Eighth Amendment.” Id. The Court concluded that the conduct in
Wilson was so “egregious” that Farmer would apply with “obvious clarity.” Id. (citing
Yehia, 38 F.4th at 1294). 9 While Wilson was a rare obvious case, the Court finds that
the alleged conduct of Sergeant Acuna and Sergeant Gutierrez is not so “egregious”
that the general precedent in Farmer would apply with “obvious clarity.” See Yehia, 38
F.4th at 1294; see also Surat, 52 F.4th at 1276 (noting that “there can be the rare
obvious case, where the unlawfulness of the officer’s conduct is sufficiently clear even
though existing precedent does not address similar circumstances”).
Mr. McCranie does not identify any other authority from the Supreme Court or the
Tenth Circuit demonstrating that the law was clearly established. See Crane v. Utah
Dep’t of Corr., 15 F.4th 1296, 1303 (10th Cir. 2021) (noting that “plaintiff bears the
burden of citing to [the court] what he thinks constitutes clearly established law” (citation
omitted)); Est. of Melvin by & through Melvin v. City of Colo. Springs, Colo., 2023 WL
8539921, at *6 (10th Cir. Dec. 11, 2023) (granting qualified immunity to the officers
because the plaintiff “failed to meet its burden to show the constitutional right at issue
In Wilson, the Court also found that the “the clear weight of authority from other
circuits” supported the denial of qualified immunity. Wilson, 2023 WL 2574375, at *6
(collecting cases from the Third, Fourth, Seventh, Eighth, and Eleventh Circuits holding
that an officer who witnesses an inmate-on-inmate assault but takes no action to
intervene violates the Eighth Amendment).
9
22
was clearly established”). Accordingly, the Court finds that Sergeant Acuna and
Sergeant Gutierrez are entitled to qualified immunity on plaintiff’s first claim. The Court
grants this portion of defendants’ motion and dismisses the first claim against Sergeant
Acuna and Sergeant Gutierrez with prejudice.
C. Second Claim – Sergeant Acuna and Sergeant Gutierrez
Plaintiff’s second claim alleges that Sergeant Acuna and Sergeant Gutierrez
violated Mr. McCranie’s Eighth Amendment rights by failing to supervise Officer
Gavinski and John Doe # 1. Docket No. 1 at 13-15, ¶¶ 101-113. Plaintiff asserts that
the sergeants failed to supervise John Doe # 1 “when they failed to order the escort to
remain with Mr. Daniels until Mr. Daniels was secured in his housing pod” and the
sergeants failed to supervise Officer Gavinski “when they failed to stop her from
opening the door to Day Hall #5 in response to Mr. Daniels’ repeated requests.” Docket
No. 26 at 12. Sergeant Acuna and Sergeant Gutierrez argue that Mr. McCranie has
failed to plead a constitutional violation and they are entitled to qualified immunity.
Docket No. 16 at 11-15.
Section 1983 does not “authorize liability under a theory of respondeat superior.”
Perry v. Durborow, 892 F.3d 1116, 1121 (10th Cir. 2018) (quoting Schneider v. City of
Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013)). Thus, it is “not
enough” that Sergeant Acuna and Sergeant Gutierrez “acted in a supervisory role”
when the other officers allegedly violated Mr. McCranie’s constitutional rights. See
Keith v. Koerner, 843 F.3d 833, 838 (10th Cir. 2016). To establish liability, Mr.
McCranie must show an “affirmative link” between the sergeants and the constitutional
violation, id. (quoting Schneider, 717 F.3d at 767), which requires “more than a
23
supervisor’s mere knowledge of his subordinate’s conduct.” Schneider, 717 F.3d at 767
(citation and internal quotations omitted). To state a § 1983 claim against a defendant
based on her supervisory responsibilities, a plaintiff must establish the following three
elements: (1) personal involvement; (2) causation; and (3) state of mind. Id.; see also
Keith, 843 F.3d at 838; Perry, 892 F.3d at 1121.
In its discretion, the Court will address the second prong of the qualified immunity
analysis first. See Pearson, 555 U.S. at 236; Janny v. Harford, No. 17-cv-00050-PABSKC, 2019 WL 4751761, at *4 (D. Colo. Sept. 30, 2019). Mr. McCranie argues that the
sergeants violated Mr. McCranie’s clearly established Eighth Amendment rights by
failing to enforce CSP’s policy requiring inmates to be escorted at all times outside of
their housing pod, the policy prohibiting inmates from entering unauthorized areas of the
prison, and the policy related to keep-separate orders. Docket No. 26 at 14. In support
of his argument, Mr. McCranie cites Goka v. Bobbitt, 862 F.2d 646, 651-52 (7th Cir.
1988). Id. In Goka, a case involving an inmate who assaulted another inmate with a
broom handle that he kept in his cell, the Seventh Circuit reversed the district court’s
dismissal of an Eighth Amendment deliberate indifference claim, finding that there were
genuine disputes of material fact as to whether the officers failed to enforce a tool
control policy at the prison, which required prison staff to lock all tools in a storage chest
at the end of the day. Goka, 862 F.2d at 648, 651-52.
However, Mr. McCranie’s citation to Goka, a Seventh Circuit case, does not
identify clearly established law because it is not a Supreme Court or a published Tenth
Circuit decision. See Bledsoe v. Carreno, 53 F.4th 589, 607 (10th Cir. 2022) (“To
demonstrate that a right is clearly established, a plaintiff must identify an on-point
24
Supreme Court or published Tenth Circuit decision, or show that the clearly established
weight of authority from other courts has found the law to be as the plaintiff maintains.”
(internal quotations and citation omitted)); Swanson v. Griffin, 2022 WL 570079, at *3
(10th Cir. Feb. 25, 2022) (discussing how “a plaintiff’s identification of a single out-ofcircuit case is not sufficient to satisfy the weight of authority approach” for
demonstrating that the law is clearly established). Mr. McCranie cites no other cases in
support of his argument that Sergeant Acuna and Sergeant Gutierrez violated plaintiff’s
clearly established constitutional rights by failing to supervise Officer Gavinski and John
Doe # 1. Because Mr. McCranie has failed to satisfy his burden of providing clearly
established law, the Court finds that Sergeant Acuna and Sergeant Gutierrez are
entitled to qualified immunity on the second claim. See Crane, 15 F.4th at 1303; Flores
v. Henderson, 101 F.4th 1185, 1193 (10th Cir. 2024) (noting that a “court must grant the
defendant qualified immunity if the plaintiff fails to prove either prong” (citation omitted)).
The Court therefore grants this portion of defendants’ motion and dismisses the second
claim with prejudice.
IV.
CONCLUSION
It is therefore
ORDERED that the Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P.
12(B)(6) [Docket No. 16] is GRANTED in part and DENIED in part. It is
ORDERED that plaintiff’s first claim is DISMISSED with prejudice against
defendants Rene Acuna and Karla Gutierrez. It is further
ORDERED that plaintiff’s second claim is DISMISSED with prejudice. It is
further
25
ORDERED that defendants Rene Acuna and Karla Gutierrez are dismissed from
this case.
DATED September 24, 2024.
BY THE COURT:
____________________________
PHILIP A. BRIMMER
Chief United States District Judge
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