Gleis v. Buehler et al
ORDER DISMISSING CASE with prejudice. See attached order. The Clerk is directed to close the file. Signed by Judge Vanessa L. Bryant on 4/10/2012. (Fernandez, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
OFFICER JOHN BUEHLER,
SGT. SEAN COONEY,
CITY OF STAMFORD
AND RALPH K. WINTER,
CIVIL ACTION NO.:
3:11 CV663 (VLB)
APRIL 10, 2012
MEMORANDUM OF DECISION DISMISSING PLAINTIFF’S COMPLAINT
This Court dismisses, sua sponte, the action brought by the Plaintiff,
Nancy Gleis (“Gleis”), proceeding pro se, against the Defendants, Officer John
Buehler (“Buehler”), Sergeant Sean Cooney (“Cooney”), the City of Stamford
(“City”) and the Honorable Ralph K. Winter (“Judge Winter”) a judge for the
United States Court of Appeals for the Second Circuit. Plaintiff filed a 42 U.S.C.
Section 1983 suit against Defendants Buehler, Cooney, and the City in a prior
litigation in the District of Connecticut. See Docket No. 3:04CV2217 (DFM). In the
current action, Plaintiff seeks for this Court to reverse the judgment of the
Second Circuit affirming the District Court’s decision granting summary
judgment in favor of Defendants in her prior lawsuit and remanding her prior
lawsuit for trial before this Court. In addition, the Plaintiff alleges that Judge
Winter acted outside of his jurisdictional authority, corrupted the judicial process
and deprived United States citizens of due process in affirming the District
Court’s decision. For the reasons stated hereafter, the Plaintiff’s action is
dismissed as frivolous.
On December 30, 2004, Plaintiff brought an action against Defendants
Buehler, Cooney, and the City pursuant to Section 1983 alleging false arrest,
malicious prosecution, violations of her due process rights under the federal
constitution and the Connecticut constitution, conspiracy, and various state law
claims. See Gleis v. Buehler, Docket No. 3:04CV2217 (DFM) (“Gleis I”). On March
26, 2007, the Gleis I Court granted summary judgment in favor of Defendants on
Plaintiff’s federal law claims, denied Plaintiff’s cross-motion for summary
judgment and declined to exercise its supplemental jurisdiction on Plaintiff’s
state law claims. See Gleis I, No.3:04CV2217(DFM), 2007 WL 926907 (D. Conn.
March 26, 2007). Plaintiff then moved the Gleis I Court for reconsideration of its
order granting summary judgment in favor of Defendants. The Gleis I Court
issued a lengthy decision denying Plaintiff’s motion for reconsideration. See
Gleis I, No.3:04CV2217(DFM), 2009 WL 3254496 (D.Conn. Oct. 6, 2009).
Plaintiff then appealed the Gleis I Court’s decision to the Second Circuit.
The Second Circuit affirmed the Gleis I Court’s decision granting summary
judgment in favor of Defendants. See Gleis v. Buehler, 374 Fed.Appx. 218 (2d Cir.
On April 25, 2011, the Plaintiff filed the instant lawsuit before this Court.
Plaintiff amended her complaint as of right on July 25, 2011. See [Dkt. #14, First
Amended Compl.]. Plaintiff then moved for an extension of time to file a second
amended complaint on September 19, 2011, on which the Court has not yet ruled.
See [Dkt. #18]. Plaintiff attached her proposed second amended complaint to her
motion for extension of time. See [Dkt. #18, attach 1, Proposed Second Amended
Compl.]. Since the Court has not issued a ruling denying Plaintiff leave to amend
her complaint for futility, the Court will consider both Plaintiff’s First Amended
Complaint and her proposed Second Amended Complaint in its order dismissing
the action as frivolous. Both complaints contain the essentially the same
allegations and seek this Court to reverse the Second Circuit’s decision affirming
the Gleis I Court’s decision granting summary judgment in favor of Defendants
and remand Plaintiff’s prior lawsuit on her Section 1981 claims brought against
Defendants Buehler, Cooney, and the City for trial before this Court.
On June 6, 2011, Plaintiff also moved to reopen her prior case in Gleis I
pursuant to Fed. R. Civ. P. 60. See [Docket No. 3:04CV2217, Dkt. #100]. On March
22, 2012, the Gleis I Court denied Plaintiff’s motion to reopen on that basis that
Plaintiff did not timely move to reopen and that the arguments she raised were
litigated on summary judgment, on reconsideration and on appeal to the Second
Circuit. See [Docket No. 3:04CV2217, Dkt. #123].
Since Plaintiff is asking this Court to overrule the decision of the Second
Circuit and the Gleis I Court, Gleis asserts the same facts as she did in her prior
lawsuit. The following facts were alleged in Plaintiff’s prior lawsuit.
On May 10, 2002, Gleis went to the Super Stop & Shop in Stamford,
Connecticut. [3:04CV2217 (DFM) Dkt. #45, Second Amended Complaint, ¶ 11.].
She parked in a “Customers With Infants” parking space to retrieve a package
she had left at the store previously. [Id.]. She alleges that another driver,
McKinley1 approached her and began screaming obscenities and accused Gleis
of parking illegally in the infant space. [Id. at ¶ 12]. Gleis went to get her package
and drove out of the parking lot attempting to avoid McKinley and McKinley’s
daughter, Caitlin. [Id.]. McKinley called the Stamford Police from the Stop and
Shop. [Id. at ¶ 13]. Later that night, the police, including Buehler, arrived at Gleis’
home and spoke with her through the window because she refused to open the
door. [Id. at ¶ 14]. Gleis refused to cooperate and the police officers left her
home shortly after they arrived. [Id.].
Buehler then went to the McKinley’s home and received an affidavit from
her. [Id. at ¶ 15]. The affidavit alleged that Gleis had used obscene language in
the presence of her child and had tried to run over her and her daughter Caitlin as
they were crossing the street in the parking lot. [Id.].
On May 11, 2002, Gleis went to the Super Stop & Shop to see the assistant
manager, who informed her that the parking lot contains two surveillance
cameras. [Id. at ¶ 16]. While the store does not provide its customers with copies
of the surveillance tapes, they always cooperate with the Stamford Police
Department when requests are made to view or obtain the tapes. [Id.].
On May 12, 2002, Gleis unsuccessfully attempted to contact Cooney, who
was Buehler’s supervisor. [Id. at ¶ 17]. She prepared a statement with her
version of the events, mentioning the surveillance tapes and the availability of
McKinley and Caitlin are not originally named in the complaint, but for
convenience, their names will be used here in the description.
another witness who saw the whole incident and faxed it to the police
department. [Id. at ¶ 17-18]. Cooney allegedly read the statement and gave a
copy to Buehler, who also allegedly read the statement. [Id. at ¶ 19]. Cooney did
not instruct Buehler, or any other police officer, to view or obtain copies of the
surveillance tapes. [Id.]. On May 14, 2002, Gleis spoke with Cooney who said
that there was no reason for her to come to the station since her fax was her
statement and that “there is no summons or warrants to be served.” Gleis
assumed that the matter had been dropped at this time. [Id. at ¶ 20]. On May 21,
2002, a warrant was issued for Gleis’s arrest, signed by Buehler and Cooney. The
application for the warrant did not contain information regarding the surveillance
tapes. [Id. at ¶ 21]. Although the warrant application stated that Buehler’s
affidavit and Gleis’ fax to the police were both attached, only the affidavit was
actually attached. [Id. at ¶ 22]. On June 8, 2002, the surveillance tapes were
routinely destroyed by Stop & Shop. [Id. at ¶ 25].
On October 23, 2002, Gleis was arrested and taken to jail with a bail of
$25,000.00. She was charged with risk of injury to a child, attempted assault in
the second degree and breach of peace. [Id. at ¶ 28].
On July 1, 2003, Assistant State Attorney Michael Colombo allegedly told
the judge that the surveillance tapes “never existed.” [Id. at ¶ 29]. Plaintiff
alleges that he made this statement even though in his file, there was allegedly a
memorandum, prepared by his investigator, that detailed the surveillance
procedures of Stop & Shop. [Id.]. Colombo allegedly continued this
misrepresentation in evidentiary hearings on October 30, 2003 and January 7,
Gleis I summary judgment decision
In granting summary judgment in favor of Defendants, the Gleis I Court
found that the Defendant police officers had probable cause for Gleis’s arrest and
rejected Plaintiff’s argument that the “police officers lacked probable cause,
because they did not obtain the allegedly exculpatory Stop & Shop videos.” Gleis
I, 2007 WL 926907 at *3. In coming to this conclusion, the Gleis I noted that
although “[p]olice officers may not disregard plainly exculpatory evidence in their
possession,” “‘an officer's failure to investigate an arrestee's protestations of
innocence generally does not vitiate probable cause’” and that “‘once an officer
has probable cause, he or she is neither required nor allowed to continue
investigating, sifting and weighing information.’” Id. (quoting Panetta v. Crowley,
460 F.3d 288, 295-96, 398 (2d Cir. 2006)). Since probable cause is a defense
against a suit for false arrest and malicious prosecution, the Court granted
summary judgment in favor of Defendants on those claims.
The Gleis I Court also rejected Plaintiff’s argument that Defendants
“violated her due process rights by failing to obtain the Stop & Shop videos
before they were erased” concluding that “Second Circuit has repeatedly held
that police officers have no duty to continue their investigation once they have
probable cause for an arrest.” Id. at *5. The Gleis I Court found that Gleis had
failed to allege facts sufficiently supporting her conspiracy claim and dismissed
her Monell claim against the City for failure to train because “there was no
misconduct by the defendant police officers.” Id. at *5-6. Lastly, the Gleis I Court
declined to exercise its supplemental jurisdiction over Gleis’s state law claim and
dismissed those claims without prejudice to refilling in state court. Id. at *6.
Gleis I decision denying Plaintiff’s motion for reconsideration
The Gleis I Court concluded that Plaintiff had failed to meet the strict
standard for reconsideration and reiterated that “[a]n examination, of the arrest
warrant reveals that it was supported by probable cause.” Gleis I, 2007 WL
3254496 (D. Conn. Oct. 6, 2009). The Gleis I Court considered Plaintiff’s argument
that material information was omitted from the warrant affidavit including the
existence of potentially exculpatory video tapes and found that even with
Plaintiff’s proposed corrections the affidavit supported a probable cause
determination. Id. at *2-3. The Gleis I Court reiterated that probable cause could
not be “eliminated simply because of the claimed existence of exculpatory
evidence.” Id. at *3. The Gleis I Court also indicated that the Defendants would be
entitled to the protection of qualified immunity since there was arguable probable
cause. Id. at *4.
The Second Circuit’s decision
Plaintiff appealed the Gleis I Court’s decision to the Second Circuit and the
appeal was heard by a panel of judges which included the Honorable Ralph K.
Winter, the Honorable Debra Ann Livingston, and the Honorable Lewis A. Kaplan
of the Southern District of New York sitting by designation on the Second
Circuit.2 The Second Circuit affirmed the Gleis I Court’s decision granting
summary judgment in favor of defendants and rejected Plaintiff’s argument that
the arrest warrant “was not supported by probable cause because Officer Buehler
knowingly or recklessly omitted any reference to the surveillance tapes in the
affidavit he filed with the warrant application and that this omission was
‘necessary to the finding of probable cause.’” Gleis v. Buehler, 374 Fed. Appx.
218, 220 (2d Cir. 2010). The Second Circuit found that “Buehler had probable
cause to arrest Gleis based on McKinley's sworn statement describing the
incident. The substance of the fax Gleis sent to the Stamford Police Departmentwhich merely asserted that surveillance tapes existed-simply constituted a
competing version of the relevant events, which Defendants were required
neither to consider nor investigate before seeking an arrest warrant.” Id.
The Second Circuit also concluded that “that the district court correctly
granted summary judgment to the Defendants on Gleis's remaining claims” and
noted that “[t]o the extent Gleis argues that Defendants violated her due process
rights by unreasonably delaying the execution of the warrant, it is well
established that ‘to prosecute a defendant following investigative delay does not
deprive him of due process, even if his defense might have been somewhat
prejudiced by the lapse of time.’” Id. (quoting United States v. Lovasco, 431 U.S.
Plaintiff has only named Judge Winter as a Defendant in the instant action and
not Judge Livingston or Judge Kaplan.
Under 28 U.S.C. § 1915 (e)(2), the Court is expressly mandated to dismiss
sua sponte an action filed by a pro se plaintiff proceeding in forma pauperis if the
Court determines that the action is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief against a defendant who is
immune from such relief. See 28 U.S.C. § 1915 (e)(2). “An action is frivolous if it
lacks an arguable basis in law or fact — i.e., where it is ‘based on an indisputably
meritless legal theory’ or presents ‘factual contentions [which] are clearly
baseless.’” Scanlon v. Vermont, 423 Fed. Appx. 78, 79 (2d Cir. 2011) (citing
Nietzke v. Williams, 490 U.S. 319, 327 (1989)).
The Second Circuit has extended the grant of authority in 28 U.S.C. § 1915
(e)(2) beyond in forma pauperis proceedings holding that “district courts may
dismiss a frivolous complaint sua sponte even when the plaintiff has paid the
required filing fee, just as the Court of Appeals may dismiss frivolous matters in
like circumstances.” Fitzgerald v. First East Seventh Street Tenants Corp., 221
F.3d 362, 363-64 (2d Cir. 2000). The Second Circuit explained that “as courts of
first instance, district courts are especially likely to be exposed to frivolous
actions, and thus have an even greater need for inherent authority to dismiss
such actions quickly in order to preserve scarce judicial resources.” Id.
Accordingly, the Court has the authority to sua sponte dismiss the instant action
even though the Plaintiff has paid the required filing fee.
Here, both of Plaintiff’s complaints are rife with Plaintiff’s legal arguments
that the Second Circuit’s and Gleis I Court’s decisions in her prior litigation were
erroneously decided. For example, in the proposed Second Amended Complaint,
Plaintiff alleges that while the Gleis I Court “had the cross-motions for summary
judgment in case number 3:04cv2217, but had not found even one case to
support her desire to grant summary judgment to the defendant police officers.”
[Dkt. #18, Attach 1, Proposed Second Amended Compl. at ¶205]. Plaintiff further
alleges that Second Circuit’s decision was erroneous because Judge Winter
“falsely attributed his language [in the Second Circuit’s decision] to page 372 of
the 1989 Krause decision. No where in the Krause decision does that language
appear, nor had it appeared in any decision of any court of this country,” and that
“[t]his was not an inadvertent error on the part of Judge Winter.” [Id. at ¶¶20607]. Needless to say, neither version of the complaint satisfies Federal Rule of
Civil Procedure 8’s requirement that a pleading contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). Further, it is inappropriate to include legal argument and briefing
within a complaint as Plaintiff has done here.
In the proposed Second Amended Complaint, plaintiff seeks “judgment
against the defendants, and each of them, jointly and severally, for compensatory
damages, as above described, punitive damages, attorney fees, costs, interest,
sanctions for filing a frivolous defense in case number 3:04cv2217, and such
further relief as this court deems just and proper” and “requests trial by jury as
soon as possible.” [Id. at p. 44-45]. In the First Amended Complaint, Plaintiff also
sought judgment against the defendants and trial by jury. [Dkt. #14, First
Amended Compl. at p. 19]. It appears that Plaintiff is seeking an order of this
Court reversing the Second Circuit’s decision.
This Court does not have the authority to reverse the judgment of the
Second Circuit. A district court is under a duty to follow an appellate court ruling.
See U.S. v. Basciano, No.10-3548, 2012 WL 493401, at *3 (2d Cir. 2012) (citing
United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977)). Under the law-of-the-case
doctrine, “the trial court is barred from reconsidering or modifying any of its prior
decisions that have been ruled on by the court of appeals.” U.S. v. Uccio, 940
F.2d 753, 757 (2d Cir. 1991). In addition, if the Plaintiff disagreed with the Second
Circuit’s decision in her prior lawsuit her only recourse was to petition the
Supreme Court for writ of certiorari. See In re D.A. Elia Const. Corp., Nos.07-cv754, 08-cv-103, 2009 WL 704386, at *4 (W.D.N.Y. March 16, 2009) (“If [plaintiff] was
dissatisfied with the result that [its appeal] received in the Second Circuit, its only
recourse was to petition for rehearing or to petition for certiorari to the United
States Supreme Court.”). Therefore this Court is barred from reconsidering or
modifying the Second Circuit’s decision in Plaintiff’s prior lawsuit.
A litigant who disagrees with the outcome of a prior lawsuit is not entitled
to a second bite at the apple by filing a subsequent lawsuit in another District
Court either seeking reversal of the outcome of the first lawsuit or seeking to
relitigate the same exact claims all over again. See Basso v. Jacoby, 166 F.3d
1199 (2d Cir. 1998) (finding that plaintiff “could have attacked the bankruptcy
court’s judgment by appeal; having failed to do so, she cannot now relitigate it
through new lawsuits”). The old adage “if at first you don’t succeed, try try
again” is not applicable to our justice system. See Manwani v. Brunelle, 99 F.3d
400, 401 (2d Cir. 1995) (finding that the district court did not abuse its discretion
in dismissing complaint that sought to relitigate several prior lawsuits brought by
the plaintiff “in state and federal courts, and to reargue claims that have already
been before this Court two times;” nor did the district court abuse its discretion
in awarding Rule 11 sanctions “given [plaintiff’s] history of frivolous and
vexatious litigation.”); County of Suffolk v. Stone & Webster Engineering Corp.,
106 F.3d 1112, 1117 (2d Cir. 1997) (Under the law-of-the-case doctrine, “a decision
made at a previous stage of litigation, which could have been challenged in the
ensuing appeal but was not, becomes the law of the case; the parties are deemed
to have waived the right to challenge that decision, for ‘[i]t would be absurd that a
party who has chosen not to argue a point on a first appeal should stand better
as regards the law of the case than one who had argued and lost.’ Driven by
considerations of fairness to the parties, judicial economy, and the societal
interest in finality, the law-of-the-case doctrine ‘applies ... to everything decided
by necessary implication’ in the first appeal.”) (quoting Fogel v. Chestnutt, 668
F.2d 100, 108-09 (2d Cir. 1997), cert. denied, 459 U.S. 828 (1982)).
Further, to the extent that Plaintiff is seeking to re-litigate the same claims
that were the subject of her prior lawsuit against Defendants Buehler, Cooney,
and the City those claims are barred by the doctrine of res judicata. See Lewal v.
Wiley, 29 Fed.Appx. 26, 27 (2d Cir. 2002) (“The majority of the allegations against
Tippy related to events that occurred in 1992. To the extent that Lewal is
attempting to relitigate claims against Tippy that had been resolved in a previous
lawsuit, he is barred by the doctrine of res judicata. As res judicata claims are
properly raised on a motion to dismiss, we may dispose of precluded claims
under 28 U.S.C. § 1915(e)(2)(B)(ii).”) (citations omitted).
Although it does not appear from the face of either complaint that Plaintiff
is asserting any new claims stemming from her arrest in 2002 or the prosecution
of her criminal case in 2003 that were not the subject of her prior lawsuit, the
Court notes that even if Plaintiff is attempting to raise new claims such claims
would be barred by Section 1983’s three year statute of limitations and
Connecticut’s three year limitations period for tort actions. See Barile v. City of
Hartford, 264 Fed. Appx. 91 (2d Cir. 2008) (In Connecticut, a plaintiff must bring
his § 1983 claim within three years of the date his claim accrues); Conn. Gen.
Stat. §52-577 (setting three-year limitations period for tort actions in Connecticut).
Assuming that Plaintiff had alleged new claims that were not the subject of her
prior lawsuit, more than 3 years has elapsed since the date any such claim would
have accrued from her arrest in 2002 or the prosecution of her criminal case in
2003 and therefore would also be barred by the statute of limitations.
Further, since all the claims Plaintiff brings against Judge Winter are based
solely on acts performed by Judge Winter in his judicial capacity such claims are
barred by the doctrine of judicial immunity. See McCluskey v. New York State
Unified Court System, 442 Fed. Appx. 586, 587 (2d Cir. 2011) (finding that
Plaintiff’s claim that state courts and judges violated Plaintiff’s Fourteenth
Amendment rights to due process and equal protection by ruling against them
were barred by the doctrine of judicial immunity”); Bliven v. Hung, 579 F.3d 204,
209 (2d Cir. 2009) (“judicial immunity is conferred in order to insure that a judicial
officer, in exercising the authority vested in him, shall be free to act upon his own
convictions without apprehension of personal consequences to himself, Thus,
even allegations of bad faith or malice cannot overcome judicial immunity.”)
(internal quotation marks and citation omitted).
Although legal arguments are not properly included in a complaint, the
Court notes that Plaintiff in both versions of her complaint makes the legal
argument that Judge Winter is not entitled to judicial immunity “because he was
not acting within his jurisdictional authority when he began writing and
disseminating, via the internet, material intended to deceive and corrupt the
judicial process.” See [Dkt. #14, First Amended Comp. at ¶12]. Plaintiff also
appears to argue in her complaints that pursuant to Stump v. Sparkman, 435 U.S.
349 (1978) that Judge Winter was not performing “judicial acts” since he was
acting in a legislative capacity by making up language and falsely attributing that
language to another Second Circuit case. See [Id. at ¶ 22].
It is undeniable that Judge Winter as member of the panel of the Second
Circuit Court of Appeals that heard and ruled on Plaintiff’s appeal was performing
a judicial act. Moreover as the Supreme Court held in Stump, “[a] judge will not
be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority; rather, he will be subject to liability
only when he has acted in the “clear absence of all jurisdiction.” Stump, 435 U.S.
at 357. It is beyond doubt that the Second Circuit had jurisdiction to hear the
appeal of Plaintiff’s prior lawsuit from the District of Connecticut and therefore
Judge Winter was not acting in the clear absence of all jurisdiction. As the
Supreme Court explained “the distinction between lack of jurisdiction and excess
of jurisdiction [can be illustrated] with the following examples: if a probate judge,
with jurisdiction over only wills and estates, should try a criminal case, he would
be acting in the clear absence of jurisdiction and would not be immune from
liability for his action; on the other hand, if a judge of a criminal court should
convict a defendant of a nonexistent crime, he would merely be acting in excess
of his jurisdiction and would be immune.” Stump, 435 U.S. at 357. The United
States Court of Appeals for the Second Circuit has jurisdiction to hear and rule
on appeals from decisions by District Courts in the District of Connecticut and
therefore Judge Winter as a Judge for the United States Court of Appeals for the
Second Circuit was acting within his jurisdiction. Here, Plaintiff’s allegations are
that Judge Winter’s action in affirming the Gleis I Court’s grant of summary
judgment was done in error, maliciously and in excess of his authority and
therefore such claims are barred by the doctrine of judicial immunity.
For all the reasons stated above, Plaintiff’s action is frivolous because it
lacks an arguable basis in law and fact and is based on an indisputably meritless
legal theory. In addition, Plaintiff would not be able to cure the defects in her
complaints through further amendment. The Court notes that “[l]eave to amend
may be denied on grounds of futility if the proposed amendment fails to state a
legally cognizable claim.” AEP Energy Serv. Gas Holding Co., 626 F.3d 699 , 726
(2d Cir. 2010). Where “there is no merit in the proposed amendments, leave to
amend should be denied.” Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.
1990). “An amendment to a pleading is futile if the proposed claim could not
withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Lucente v. Int’l
Bus. Machin. Corp., 310 F.3d 243, 257 (2d Cir. 2002). Here since all of Plaintiff’s
claims are bared by either res judicata, judicial immunity, statute of limitations,
the law-of-the-case doctrine and since Plaintiff seeks a remedy which this Court
has no authority to grant, any amendment would be futile.
While the Court understands that the Plaintiff believes that her arrest and
prosecution could have been avoided if only the police had given her the benefit
of the doubt and conducted a more thorough investigation and that the Second
Circuit failed to redress this wrong. However, the law does not provide a remedy
for every injustice. Unfortunately, the injustice perceived by the Plaintiff has no
remedy which this Court can grant. For all the foregoing reasons, the Plaintiff’s
complaint is dismissed with prejudice. The Clerk is directed to close the file.
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: April 10, 2012
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