DuPree v. Jane Doe 1 et al
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 2/10/14. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHN RANDOLPH DUPREE, SR.,
Civ. No. IO-351-LPS
JANE DOE I , et aI.,
John Randolph DuPree, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se
Chad J. Toms and Daniel A. Griffith, Esquires, Whiteford, Taylor & Preston, L.L.C.,
Wilmington, Delaware. Counsel for Defendant Correctional Medical Services, Inc., now known
as Corizon, Inc.
seeks treatment by a dermatologist, prospective relief, declaratory relief, reimbursement for the
preexisting medical condition, and compensatory and punitive damages.
Plaintiff has been housed at the vee since the fall of 2006. (D.I. 13 Ex. A at 11) He has
a skin condition that has been diagnosed as dermatitis, eczema, psoriasis, or lichen simplex. 3 (Id.
at 16, 17, 60, 61) Treatment includes the use of ointment such as triamcinolone cream4 and oral
antibiotics. (Id. at 13-23)
On September 4, 2006, Plaintiff was advised that a grievance he had submitted had been
sent to the medical department for processing. (D.I. 100 Ex. 4) Plaintiff submitted a grievance
on September 25,2006, complaining that he had been seen by a physician in late August or early
September and was prescribed an antibiotic and cream to treat rashes on his skin. (D.I. 94 Ex. A
at Ex. 4) Plaintiff complained that it was the third time he had seen a physician and that he had
received the antibiotic, but not the cream. (Id.) Investigation of the grievance indicated that
Plaintiff was transferred to the
vee on November 22, 2006.
(Id.) As of February 9,2007, the
grievance was resolved, with an indication that "this grievance from prior institution is now
resolved per inmate. Inmate received drops for this condition according to inmate." (Id.)
On November 30, 2006, Plaintiff submitted a sick call slip advising that he was recently
transferred to the vee and asking for his prescription cream medication. (D.I. 100 Ex. 15) The
slip indicates that Plaintiff was scheduled for an allergy evaluation, that the medication had been
3Lichen simplex is a skin condition characterized by small, intensely pruritic papules. See
The American Heritage Stedman's Medical Dictionary 460 (2d ed. 2004).
4Triamcinolone acetonide cream is a topical corticosteroid that constitutes a class of
primarily synthetic steroids used as anti-inflammatory and antipruritic agents. See
ordered on October 3, 2006, and that it was good until January 31, 2007. 5 (Id) On December
11, 2006, Plaintiff submitted a grievance complaining that he was not receiving prescribed
medications and that his sick call requests were being ignored subsequent to his transfer to the
VCC. (D.I. 100 Ex. 6) Plaintiff was provided the cream on December 29,2006 and placed on
the "doctor's line for reeval of skin problem." (Id at Ex. 10) It was recommended that Plaintiff
put in a request for the medication seven to ten days before running out. (Id)
On March 26, 2007, Plaintiff submitted a sick call slip complaining of an unresolved
issue of break-outs across his entire body, and noting that he had asked to be re-seen on
numerous sick call requests. (D.1. 100 Ex. 7) The slip states, "scheduled [with] MD/MLP."
(Id) Plaintiff submitted a sick call slip on September 30, 2007, stating that he needed his
medications renewed and refilled. (Id at Ex. 13) He was referred to a physician for a follow-up.
(Id.) On October 16, 2007, Plaintiff submitted a grievance complaining that he had placed a sick
call slip in the early part of October and two weeks later he had yet to be called to be seen or to
pick up his medications. (Id at Ex. 11)
Plaintiff submitted a sick call slip on January 11, 2008, stating that his medications had
run out or nearly run out. (D.I. 100 Ex. 16) An appointment was scheduled for January 15,
2008. (Id) On March 26, 2008, Plaintiff submitted a grievance complaining that he had
submitted a sick call slip that his medication was about to run out, that it was returned stating
"there was to be a scheduled appointment made," that he has been out of medication for two
months, his condition has worsened, and he had yet to be seen. (D.L 100 Ex. 2) An investigation
ensued on May 8, 2008 regarding the medication issue, noting "medications rec'd." (Id at Ex. 3)
5The year is written as 2006, but that appears to be a mistake.
On December 31, 2008, Plaintiff submitted a sick call slip for cream and was told that the
medication had been ordered. (D.l. 94 Ex. A at Ex. 5)
Plaintiff was hospitalized for two weeks in April 2009 on an emergent basis. (D.1. 13 Ex.
A at 37-40) He testified that his hospitalization and surgery for cellulitis was the direct result of
not receiving the prescribed creams at the vee. (0.1.94 Ex. A at 39) The physicians at Kent
General Hospital discovered the cellulitis. (ld at 42) Plaintiff testified that no one at the vee
knew of his cellulitis because it did not present in a normal way. (ld at 42)
According to Plaintiff, eMS maintains a corporate policy of failing to provide certain
prescription medication, or delaying delivery of medication, for the purpose of cost savings. (Id
at 30-32) Plaintiff testified there were many delays in getting medication to him and that he was
not getting his medication he needed. (Id. at 20, 28) Plaintiff was allowed to keep the
medication on his person ("KOP") and a tube would probably last a week. 6 (D.1. 94 Ex. A at 22)
Prescriptions typically were written for ninety days and, if the inmate did nothing, the
prescription would lapse. (ld. at 26) When the medication ran low or was about to lapse,
Plaintiff would submit a sick call slip to request renewal. (ld at 66) Plaintiff testified that the
medication should have been automatically reordered, but it was not. (ld at 14) When he would
ask for a reorder, it could take up to three months to get the medication. (ld at 14) Plaintiff also
testified that his physician would order the medication, but he would not receive it. (ld at 32)
When asked to identifY the corporate policy that he believed violated his constitutional claims,
August 2008 medication administration record indicates that Plaintiff's prescription
for Triamcinolone was for a 60-day period, with an order date of July 1, 2008 and a stop date of
September 13, 2008, while a prescription for Theraderm lotion was for a 120-day period, with an
order date of April 21, 2008 and a stop date of September 13,2008. (0.1.94 Ex. B)
Plaintiff responded that his testimony regarding delay in receipt of medication was proof of the
policy. (Id. at 44-46) Plaintiff testified that he believed there was a corporate policy, custom, or
practice of placing cost containment ahead of medical care and that this policy somehow dictated
medical providers delaying care and delaying dispensing of medication. (Id. at 32-33, 44,51)
Plaintiff has not seen any written document or policy, but asserts he can show the policy through
CMS' history. (Id. at 32-33, 46)
Plaintiff testified that his current treatment is more consistent and marked by fewer
interruptions. (Id. at 18) At the time of his deposition, Plaintiff's symptoms were being treated.
(Id. at 61)
MOTION TO AMEND
On March 29, 2013, the Court ordered Plaintiffto show cause on or before April 30,
2013, why Defendants Jane Doe 1, Jane Doe 2, Jane Doe 3, and First Medical Services ("FMS")
should not be dismissed for failure to identify the Doe Defendants and failure to serve process
upon the Doe Defendants and FMS pursuant to Fed. R. Civ. P. 4(m). (D.L 78) Plaintiff
responded on April 30, 2013 by filing a motion to join all parties and to amend the complaint.
(D.I. 79) It seems from the motion that Plaintiff seeks to gain service upon unserved defendants
and to subpoena individuals to obtain their testimony. To the extent that Plaintiff seeks to
amend, he failed to comply with Local Rule 15.1, which requires providing a copy of the
proposed amended pleading. Nor does the motion set forth the substance of the proposed
amendment. The Court will decline to grant Plaintiff leave to amend pursuant to Fed. R. Civ. P.
On November 13, 2013, the Court entered a second order for Plaintiff to show cause on
or before December 13,2013, why Defendants Jane Doe 1, Jane Doe 2, Jane Doe 3, and FMS
should not be dismissed for failure to identify the Doe Defendants and to serve process each of
the foregoing defendants pursuant to Fed. R. Civ. P. 4(m). (D.l. 97) On the same date, the Court
ordered CMS to provide the Court the last known addresses of unserved Defendants Dr.
Oketokun ("Dr. Oketokun") and Nurse Ihuoma Chucks ("Chucks"). (D.l. 98) The addresses for
Dr. Oketokun and Chucks have been provided and a service packet was forwarded to the United
States Marshals Service on December 26, 2013. To date, they have not been served.
In the meantime, on December 2,2013, Plaintiff responded to the second Show Cause
Order by asking the Court to allow him more time to pursue the Doe Defendants. (D.l. 103)
Plaintiff indicates that in his review of medical records, he is unable to discern the signatures and
writing of medical personnel to identify the Doe Defendants. Plaintiff filed his complaint in
April 2010. He has had ample opportunity to identify the Doe Defendants. Accordingly, the
Court finds that Plaintiff has failed to show cause why the Doe Defendants should not be
dismissed for failure to identify and serve them pursuant to Fed. R. Civ. P. 4(m).
With regard to FMS, Plaintiff indicates that it is a defunct operation and that he intends to
move to amend to substitute the State of Delaware as a defendant in its place. Plaintiff may not
substitute the State of Delaware for FMS, as it is immune. See Seminole Tribe ofFla. v. Florida,
517 U.S. 44, 54 (1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984);
Edelman v. Jordan, 415 U.S. 651 (1974).
Based upon the foregoing, the Court will deny the motion to amend/correct complaint
(D.l. 79) and will dismiss the Doe Defendants and FMS for Plaintiff's failure to show cause.
The Court entered a scheduling Order on March 29,2013. (D.I.78) The Order provided
for all discovery in the case to be initiated so that it would be completed on or before September
30,2013. On September 11,2013, Plaintiff filed a motion to have witnesses subpoenaed. (D.!.
88) Plaintiff seeks the issuance of subpoenas for three non-parties and for Chucks and Dr.
Oketokun. On September 17, 2013, Plaintiff filed a motion for discovery of all information
pertinent to the operations of CMS. (D.L 89) CMS opposes the motions on the grounds that
they are untimely, Plaintiff improperly seeks to subpoena parties, and the requests are nearly
identical to prior discovery requests to which CMS has previously responded. (D.1. 90)
With regard the motion to issue subpoenas, an inmate proceeding in forma pauperis in a
civil action may not issue subpoenas without paying the required fees. See Pedraza v. Jones, 71
F.3d 194, 196 nA (5th Cir. 1995); Fernandez v. Kash N' Karry Food Stores, Inc., 136 F.R.D.
495,496 (M.D. Fla. 1991) (witness and mileage fees required to be paid by indigent plaintiff).
Here, Plaintiff proceeds in forma pauperis and there is no indication that he has the ability to pay
the fees associated with issuance of a sUbpoena. In addition, Plaintiff seeks to subpoena
defendants Dr. Oketokun and Chucks. It is not necessary for Plaintiff to subpoena these two
defendants as he has the means of discovery on parties through the Federal Rules of Civil
Procedure once they have been served. 7 Therefore, the Court will deny the motion to have
witnesses subpoenaed. The Court will also deny the motion for issuance of subpoenas upon nonparties, but will reconsider the issue upon Plaintiff s showing that he has the ability to pay the
7The Court will enter an amended scheduling order once Defendants Dr. Oketokun and
Chucks are served.
The Court has reviewed Plaintiffs motion for discovery (0.1. 89) as well as Plaintiffs
prior discovery requests (0.1. 71, 72) and CMS' responses (0.1. 73, 74), and notes that many of
Plaintiff s requests are duplicative. CMS responded to the initial discovery requests, and the
Court finds that it adequately responded to them. Finally, Plaintiff belatedly filed the instant
motion such that CMS could not respond to the requests prior to the discovery deadline, and
therefore, even were the requests not duplicative, they are untimely. For these reasons, the Court
will deny the motion for discovery.
MOTION FOR SUMMARY JUDGMENT
The Court's Scheduling Order (0.1. 78) entered on March 29,2013 set October 31,2013
as the deadline for filing dispositive motions. CMS moves for summary judgment on the
grounds that Plaintiff failed to: (1) develop any evidence to establish a violation of his
constitutional rights as a result of medical care he received; (2) obtain expert testimony to
support his theory that limited access to anti-itch skin cream resulted in a serious injury or
illness; or (3) establish that an existing custom, policy or practice of CMS resulted in the
violation of a constitutional right. (0.1.92,39) Plaintiff opposes CMS' motion for summary
judgment arguing that: (1) CMS' recitation ofthe facts is misleading; (2) CMS and its staff
ignored prescribing doctors' orders; (3) CMS failed to provide him with discovery; (4) the
pattern of medication interruption and refusing to correct the interruption violates the
constitution; (5) his primary complaint is the lack oftreatment by the medical department; (6) he
can be considered an expert on his medical condition given the number of years he has been
dealing with the matter; (7) this case is about Plaintiff not receiving adequate or appropriate
treatment at the hands of CMS' staff and under its policy; and (8) Plaintiff's testimony, along
with his medical file, shows a pattem of abuse, neglect and fraud, sufficient to establish an
existing custom, policy, or practice that resulted in constitutional violations. 8 (See D.I. 100)
Plaintiff filed a renewed motion for summary judgment on November 5, 2013. (D.I. 49,
95) He moves for summary judgment on the ground that there is no genuine issue as to any
material fact, and that he is entitled to judgment as a matter of law. (D.!. 49) In support of his
motion Plaintiff refers to the record, "including the amended complaint, the answer to it, and
Plaintiff's ... affidavit." (D.I. 49) CMS opposes the motion. (D.I. 96) CMS interprets the
motion as a motion for reconsideration and argues that Plaintiff has not established the grounds
for reconsideration. In addition, CMS argues that: (1) Plaintiff failed to file a motion for
summary judgment in a timely manner;9 (2) Plaintiff failed to support his motion for summary
judgment as required by Fed. R. Civ. P. 56(c)(1)(A); (3) the reinstated motion for summary
judgment does not identify any admissions made by CMS or any written discovery responses that
support Plaintiff s theory of the case; and (4) Plaintiff did not submit a valid affidavit supporting
8The Court was not provided with copies of Plaintiff's medical records which he
describes as "4-Volumes" and as having been produced to CMS. (See D.I. 100 at 3,5)
9Plaintiffs motion for summary judgment is post-marked November 1,2013, and was
filed on November 6, 2013. The motion is not dated. The computation of time for complaints
filed by pro se inmates is determined according to the "mailbox rule," by which a complaint is
deemed filed as of the date it was delivered to prison officials for mailing to the court. See
Houston v. Lack, 487 U.S. 266 (1988); Burns v. Morton, 134 F.3d 109, 112 (3d Cir. 1998); Gibbs
v. Decker, 234 F. Supp. 2d 458, 463 (D. Del. 2002). Because it is unclear when Plaintiff
delivered the motion to prison officials, the Court, giving Plaintiff the benefit of the doubt,
considers it delivered on October 31, 2013, the deadline for filing motions for summary
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 n.l 0 (1986). An assertion that a fact cannot be
or, alternatively, is - genuinely disputed
must be supported either by citing to "particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for the purposes of the motion only), admissions, interrogatory answers, or
other materials," or by "showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact." Fed. R. Civ. P. 56(c)(l)(A) & (B). If the moving party has carried its burden, the
nonmovant must then "come forward with specific facts showing that there is a genuine issue for
trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000).
When the Court screened the case, it considered Plaintiffs Complaint as raising the
following issues: (1) CMS' policies/customs of cost avoidance were the driving force behind the
indifference to Plaintiffs serious medical needs; and (2) CMS provided the least efficacious
medical care for the purpose of saving money. Plaintiff now states that this case is about not
receiving adequate or appropriate treatment at the hands of CMS' staff and under its policy.
CMS frames Plaintiff's claim as the sporadic access to, or delay in receiving, renewed quantities
of anti-itch cream allegedly resulting in a life threatening bout of cellulitis. (See D.I. 93 at 15)
Plaintiff did not support his renewed motion when he failed to cite "particular parts of
materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for the purposes ofthe motion
only), admissions, interrogatory answers, or other materials," or by "showing that the materials
cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact" as is required by the Federal Rules of
Civil Procedure. See Fed. R. Civ. P. 56(c)(1)(A) & (B). "[T]he court is not obliged to scour the
record to find evidence that will support a party's claims." Perkins v. City ofElizabeth, 412 F.
App'x 554,555 (3d Cir. Feb. 11,2011); see also Hollandv. New Jersey Dep't ofCarr., 246 F.3d
267,285 (3d Cir. 2001). Therefore, the Court will deny Plaintiff's motion for summary
The Eighth Amendment proscription against cruel and unusual punishment requires that
prison officials provide inmates with adequate medical care. See Estelle v. Gamble, 429 U.S. 97,
103-105 (1976). In order to set forth a cognizable claim, an inmate must allege (i) a serious
medical need and (ii) acts or omissions by prison officials that indicate deliberate indifference to
that need. See id. at 104; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A prison official
is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious harm and
fails to take reasonable steps to avoid the harm. See Farmer v. Brennan, 511 U.S. 825, 837
(1994). A prison official may manifest deliberate indifference by "intentionally denying or
delaying access to medical care." Estelle, 429 U.S. at 104-05; see also Monmouth Cnty. Carr. v.
Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987) (deliberate indifference can be shown when
medical treatment is delayed for non-medical reasons).
"[A] prisoner has no right to choose a specific form of medical treatment," so long as the
treatment provided is reasonable. Lasko v. Watts, 373 F. App'x 196,203 (3d Cir. Apr. 12,2010)
(internal quotation marks omitted). An inmate's claims against members of a prison medical
department are not viable under § 1983 where the inmate receives continuing care, but believes
that more should be done by way of diagnosis and treatment and maintains that options available
to medical personnel were not pursued on the inmate's behalf. See Estelle, 429 U.S. at 107.
Finally, "mere disagreement as to the proper medical treatment" is insufficient to state a
constitutional violation. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).
CMS contends that summary jUdgment is appropriate because Plaintiff failed to present
expert testimony to support his theory that limited access to skin cream resulted in a serious
injury or illness. Plaintiff responds that every document in his medical file was placed there by a
medical professional and that he can be considered an expert witness based upon the number of
years that he has been dealing with his condition.
"Where the jurors' common knowledge as lay persons is sufficient to enable them, using
ordinary understanding and experience, to determine a defendant's negligence without the benefit
of the specialized knowledge of experts, the jury itself is allowed to supply the applicable
standard of care and thus to obviate the necessity for expert testimony relative thereto." Natale v.
Camden Cnty. Correc. Facility, 318 F.3d 575, 579 (3d Cir. 2003). While Plaintiff has not
identified an expert witness, he has moved to subpoena certain treating physicians at Kent
General Hospital (D.!. 88), and Chucks and Dr. Oketokun
who have yet to be served - are also
medical personnel. It may be that these individuals could serve as fact witnesses sufficient to
support Plaintiffs claim even without an expert witness.
Accordingly, at this juncture, the Court will deny CMS' motion for summary judgment
due to a lack of expert testimony.
Policy, Custom, Practice
When a plaintiff relies upon a theory of respondeat superior to hold a corporation liable,
he must allege a policy or custom that demonstrates such deliberate indifference. See Sample v.
Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989); Miller v. Correctional Med. Sys., Inc., 802 F. Supp.
1126, 1132 (D. Del. 1992). In order to establish that CMS is directly liable for the alleged
constitutional violations, Plaintiff "must provide evidence that there was a relevant [CMS] policy
or custom, and that the policy caused the constitutional violation[s] [plaintiff] allege[s]." Natale,
318 F .3d at 584 (because respondeat superior or vicarious liability cannot be basis for liability
under 42 U.S.C. § 1983, a corporation under contract with a state cannot be held liable for the
acts of its employees and agents under those theories).
Assuming the acts of an entity's employee have violated a person's constitutional rights,
those acts may be deemed the result of a policy or custom of the entity for whom the employee
works, thereby rendering the entity liable under § 1983, where the inadequacy of existing practice
is so likely to result in the violation of constitutional rights that the policymaker can reasonably
be said to have been deliberately indifferent to the need. See Natale, 318 F.3d at 584. "'Policy is
made when a decisionmaker possess[ing] final authority to establish ... policy with respect to
the action issues an official proclamation, policy or edict.'" Miller v. Corr. Med. Sys., Inc., 802
F. Supp. at 1132 (alteration in original) (quoting Andrews v. City ofPhiladelphia, 895 F.2d 1469,
1480 (3d Cir. 1990)). "Custom, on the other hand, can be proven by showing that a given course
of conduct, although not specifically endorsed or authorized by law, is so well-settled and
permanent as virtually to constitute law." Id. (citing Andrews, 895 F.2d at 1480; Fletcher v.
O'Donnell, 867 F.2d 791, 793-94 (3d Cir. 1989)).
The evidence of record indicates that, in the past, Plaintiff had difficulty obtaining his
medication in a timely manner. Plaintiff attributes this delay to a policy or custom of CMS.
During his deposition, Plaintiff testified that when he asked for a reorder of the medication, it
could take up to three months to get it. He testified that his physician would order the
medication, but Plaintiff would not receive it. Plaintiff could not identify the corporate policy
that he believed violated his constitution claims. His position is that his testimony regarding
delay in receipt of medication is proof of the policy.
In viewing the evidence of record it is evident that there were delays in Plaintiff s receipt
of medication. The evidence of record does not indicate what caused the delay - be it delay in
ordering by medical personnel, delay in ordering because the prescription was for a certain time
frame (i.e. a two or three month period) and Plaintiff used the medication within one week's
time, delay by the manufacturer or distributor of the medication, delay due to cost considerations,
or delay based upon something else. Nonetheless, the evidence of record refers to numerous
instances on which Plaintiff complained of delay in receiving required medication sufficient to
show some pattern of conduct that could establish a custom or policy. 10
CMS provides no explanation for the numerous delays in providing Plaintiff medication,
but rests upon its position that Plaintiff only claims that he was not given creams in the volume
and frequency he desired. As noted above, there may be a constitutional violation under the
deliberate indifference standard when medical care is delayed for non-medical reasons. Here, the
record is silent as to the reason for the delay. Yet there is evidence in the record that CMS knew
of the medication issues as a result ofPlaintiif's numerous grievances and requests for
medication attention. An inference can reasonably be drawn that CMS knew that delay in
providing needed medication could create a serious risk of harm. Under these circumstances,
there is an issue of fact as to whether policymakers at CMS knew of Plaintiffs medical need but
delayed in responding to it. Therefore, at this juncture, the Court will deny CMS' motion for
For the above reasons, the Court will deny all pending motions. (D.I. 79,88,89,92,95)
The Court is mindful that two medical defendants have not yet been served. In the event Chucks
and Dr. Oketokun are served, the Court will reopen discovery and will consider renewed motions
for summary judgment by all parties.
An appropriate Order follows.
I°It is well settled that a single incident of unconstitutional behavior, without any direct
involvement by a municipal policy maker, is not sufficient to impose liability. See Pembaur v.
City o/Cincinnati, 475 U.S. 469,479 (1986); City o/Oklahoma v. Tuttle, 471 U.S. 808,822
(1985); Groman v. Township 0/ Manalapan, 47 F.3d 628,637 (3d Cir.1995). Here, Plaintiff
refers to several instances of delay in receiving medication.
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