WIDI v. MCNEIL et al
ORDER granting in part and denying in part 403 Motion to Dismiss for Failure to State a Claim. By JUDGE JOHN A. WOODCOCK, JR. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID J. WIDI, JR.,
PAUL MCNEIL, et al.,
ORDER ON DEFENDANTS KEVIN CADY AND ROBERT BROWN’S
MOTION TO DISMISS COUNTS IV, V AND VI
The Court denies in part and grants in part a motion to dismiss three counts
against two law enforcement officers, which allege that they participated in a
conspiracy to violate a plaintiff’s civil rights. The Court concludes that the plaintiff’s
allegations state plausible claims that the officers participated in a conspiracy to
conduct an illegal seizure and search but does not state a plausible claim that they
omitted probable cause factors from an affidavit in support of a search warrant.
The procedural history of Mr. Widi’s claims against Kevin Cady and Robert
Brown, leading to their motion to dismiss, is convoluted. To begin, Mr. Widi named
Lieutenant Kevin Cady and Officer Robert Brown, officers with the town of Eliot
Police Department, in his initial complaint filed on June 13, 2012. Compl. (ECF No.
1). On July 13, 2012, the Magistrate Judge screened the complaint and specifically
authorized Mr. Widi to proceed against five defendants, but she did not address the
claims against the remaining thirty-five defendants, including Lieutenant Cady and
Officer Brown. Order for Service After Screening Compl. Pursuant to 28 U.S.C. §
1915A (ECF No. 6). Mr. Widi twice amended his complaint and on February 11, 2015,
the Court screened the Second Amended Complaint as to those defendants not
screened on July 13, 2012. Screening Order, Order Vacating in part Earlier Order
Denying Mot. for Leave to File Second Am. Compl. as to Served Defs., Order Granting
in part Mot. to File Second Am. Compl., Order Striking Portions of the Second Am.
Compl., and Order Denying Mot. to Stay (ECF No. 270). In its Screening Order, the
Court allowed Mr. Widi to proceed against Lieutenant Cady and Officer Brown on
Count II, excessive force, but not on Counts III, IV, V or VI. Id. at 35-39. Counts III
and IV alleged illegal sniff searches of his company van and Counts V and VI alleged
illegal seizure of the van and the omission of probable cause factors in obtaining a
warrant to search the van. Second Am. Compl. ¶¶ 76-104 (ECF No. 191).
On May 4, 2015, Mr. Widi moved for reconsideration of the Screening Order.
Mot. for Recons. (ECF No. 292). On December 8, 2015, the Court reiterated its ruling
on Count III of the Second Amended Complaint, but it allowed Mr. Widi to provide
some proof for his assertions related to Counts IV, V, and VI. Order on Mot. for
Recons. and Mot. Pursuant to Fed. R. of Civ. Pro 60 (ECF No. 325). On March 16,
2016, Mr. Widi responded to the December 8, 2015 order. Resp. to Order on Mot. for
Recons. and Mot. Pursuant to Fed. R. of Civ. P. 60 with Accompanying Documentary
Evid. and Mot. for Disc. (ECF No. 351). On January 10, 2017, the Court allowed
Counts IV, V and VI to proceed against Lieutenant Cady and Officer Brown. Order
on Mot. for Recons. (ECF No. 392).
On January 24, 2017, Lieutenant Cady and Officer Brown moved to dismiss
Counts IV, V and VI. Defs. Kevin Cady and Robert Brown’s Mot. to Dismiss Counts
IV, V and VI (ECF No. 403) (Defs.’ Mot.). On June 26, 2017, Mr. Widi filed a response.
Opp’n to Defs. Brown and Cady’s Mot. to Dismiss for Failure to State a Claim with
Regards to Counts IV, V and VI of the Second Am. Compl. (ECF#403) (ECF No. 455)
(Pl.’s Opp’n). On July 10, 2017, Lieutenant Cady and Officer Brown filed their reply.
Reply Mem. of Law in Support of Defs. Kevin Cady and Robert Brown’s Mot. to
Dismiss Counts IV, V and VI (ECF No. 460) (Defs.’ Reply).
THE SECOND AMENDED COMPLAINT
David Widi’s allegations against Lieutenant Cady and Officer Brown arise out
of a series of incidents in November 2008, during which Mr. Widi was arrested, his
residence searched, and his van towed and searched. Second Am. Compl. ¶¶ 76-104.
Mr. Widi alleged that Lieutenant Cady and Officer Brown were employed by the town
of Eliot Police Department.
Id. ¶¶ 19-20.
He stated that Lieutenant Cady
“participated in the seizure of Mr. Widi and the search of his residence” and “was in
charge of holding Mr. Widi at the Eliot Police Department and he refused Mr. Widi
privacy to speak with his attorney.” Id. ¶ 19. He alleged that Lieutenant Cady
“supervised the EPD (Eliot Police Department) officers.” Id. As regards Officer
Brown, Mr. Widi alleged that he “participated in the seizure of Mr. Widi and the
search of his residence.” Id. ¶ 20.
Count IV — Illegal Seizure of Tile Company Van
In Count IV, Mr. Widi alleges that the officers, including officers from the EPD,
who were to participate in the search of Mr. Widi’s home, gathered in a pre-search
briefing where they “made plans and agreed to seize Mr. Widi’s tile company van,
even though it was not listed in the warrant.” Id. ¶ 84. He claims that Lieutenant
Cady “attempted to get Mr. Widi’s consent to allow the ATF and members of the
search team to search his tile company van,” but Mr. Widi “declined to allow the
search.” Id. ¶ 85.
Regarding Officer Brown, Mr. Widi claims that another officer “requested that
[Officer] Brown return to Mr. Widi’s residence, where [Officer] Curran directed him
to observe the van being loaded on a flatbed.” Id. ¶ 86. Mr. Widi says that the search
warrant “did not authorize the seizure of Mr. Widi’s van” and his van “contained Mr.
Widi’s tile company tools and business papers, including contracts for tile jobs.” Id.
¶ 87. Mr. Widi cites a decision from this District during his criminal case that the
van seizure “violated the Fourth Amendment. United States v. Widi, 686 F. Supp. 2d
107, 114-15 (D. Me. 2010).” Id. ¶ 88. He alleges that the EPD defendants violated
his constitutional rights by seizing the van and demanded damages. Id. ¶¶ 89-91.
Count V — Second Illegal Sniff
In Count V, Mr. Widi re-alleges the pre-search conference and the van seizure
despite the fact that the van was not contained in the search warrant. Id. ¶¶ 92-93.
After seizing the van, Mr. Widi says the police subjected the van to a second sniff test
on November 30, 2008, which he acknowledged was positive. Id. ¶ 94. Specifically,
he alleged that Officer Curran and Officer Short had Officer Carr conduct the second
sniff search. Id. He claims that the officers of the EPD, among others, violated his
constitutional rights. Id. ¶ 97.
Count VI — Search Warrant and Omission of Probable Cause
In Count VI, Mr. Widi again alleges the pre-search conference and illegal van
seizure despite the fact that the van was not contained in the search warrant. Id. ¶
100. He alleges that after the second positive sniff, Officer Curran submitted an
affidavit to Judge O’Neill at the York District Court per Agent McNeil and Officer
Id. ¶ 101.
Mr. Widi alleges that “Curran, Short, McNeil,
Armstrong, and Anderson agreed to omit information regarding the negative sniff
with intentional and reckless disregard for the truth because that fact would have
had an adverse affect on the determination of probable cause.” Id. ¶ 102. He claims
generally that the officers of the EPD violated his constitutional rights. Id. ¶ 103.
THE POSITIONS OF THE PARTIES
The Officers’ Motion
In their motion to dismiss, the officers review the legal standards for qualified
immunity, emphasizing that a plaintiff must demonstrate that the constitutional
right was “clearly established” at the time. Defs.’ Mot. at 6-7 (quoting Saucier v. Katz,
533 U.S. 194, 201 (2001)). To meet the “clearly established” prong of the qualified
immunity test, a plaintiff must show that the contours of the constitutional right were
sufficiently clear and that in the specific factual context of the case, the violation
would have been clear to a reasonable officer. Id. at 7 (citing MacDonald v. Town of
Eastham, 745 F.3d 8, 12 (1st Cir. 2014)). The officers also recite the plausibility
standard that the United States Supreme Court adopted in Iqbal and Twombly. Id.
at 5-6 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007)).
Count IV — Illegal Seizure of the Company Van
Lieutenant Cady points out that Mr. Widi’s sole specific allegation against him
by name in Count IV is that while Mr. Widi was at the Eliot police station, Lieutenant
Cady “attempted to get Mr. Widi’s consent to allow the ATF and members of the
search team to search his tile company van. Mr. Widi declined to allow the search.”
Id. at 8 (quoting Second Am. Compl. ¶ 85). Lieutenant Cady asserts that even if this
allegation is true, it does not state a legal claim against him. Id.
In turn, Officer Brown observes that Mr. Widi’s sole allegation against him by
name in Count IV is that at the directive of other officers, he observed the van being
loaded onto a trailer before being towed away. Id. (citing Second Am. Compl. ¶ 85).
As with Lieutenant Cady, Officer Brown maintains that this allegation is insufficient
to state a claim against him. Id. at 8-9.
Counts V and VI — Illegal Sniff Search and the Search
Lieutenant Cady and Officer Brown observe that neither Count V nor Count
VI contains any specific allegations against them by name. Id. at 10-11. All that is
left, they say, are scattershot allegations in which Mr. Widi has included them in
general and unformed allegations against all the members of their police department.
Id. at 10-12. They assert that these general allegations are insufficient to maintain
the claims in Counts V and VI.
David J. Widi, Jr.’s Response
In his opposition, Mr. Widi observes that in addressing a motion to dismiss, a
court must not look behind the allegations in the complaint to assess whether a
plaintiff will be able to prove what he alleges.
Pl.’s Opp’n at 2 (citing Ocasio-
Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). He also notes that a
court must hold a pro se litigant’s pleadings to a less stringent standard than an
attorney’s. Id. (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Turning to his claims against Lieutenant Cady and Officer Brown, Mr. Widi
relies on the general allegation against the members of the Eliot Police Department,
namely that EPD members were present at the pre-search meeting where they
“planned and agreed with the other defendant to subject Mr. Widi to unlawful
searches and seizures.” Id. at 4. He observes that this Court earlier rejected ATF
Special Agent Paul McNeil’s motion to dismiss because there was a general allegation
against the ATF agents. Id. (quoting Order Denying Pl.’s Mot. to Stay; Denying Pl.’s
Mot. to Strike; and Granting Def. McNeil’s Mot. to Dismiss at 10-11 (ECF No. 170)).
Mr. Widi next claims that because this Court earlier allowed the claims against
Lieutenant Cady and Officer Brown to continue, “that decision should continue to
govern the same issues in subsequent stages of the same litigation.” Id. at 4-5
(quoting Arizona v. California, 460 U.S. 605, 618 (1983)).
Mr. Widi explains that his claim against Lieutenant Cady and Officer Brown
is based on an alleged civil rights conspiracy. Id. at 5. Mr. Widi says that the Second
Amended Complaint sufficiently alleges the conspiracy, which began when the EPD
members gathered in the pre-search meeting, decided to abridge his rights, and
proceeded to do so by unlawfully searching and seizing his van. Id.
Finally, Mr. Widi argues that the district court’s determination that his van
was wrongfully seized operates to collaterally estop Lieutenant Cady and Officer
Brown from claiming now that the seizure was legal. Id. at 6. He asserts that
Lieutenant Cady and Officer Brown were in privity with the United States and
therefore should be bound by legal decisions in the criminal case. Id. Even if neither
police officer is deemed to have been in privity, Mr. Widi contends that they should
be barred from denying the illegality of the search and seizure of the van by the
doctrine of non-mutual offensive collateral estoppel. Id. at 7. Finally, Mr. Widi
maintains that neither Lieutenant Cady nor Officer Brown may avoid liability by the
qualified immunity defense, because his privacy rights to the van were clearly
abridged and the omission of the negative sniff from the state search warrants was
clearly illegal. Id. at 7-9.
The Officers’ Reply
Lieutenant Cady and Officer Brown reply to a few of Mr. Widi’s issues. First,
they contend that a generalized allegation against the officers at the EPD is
insufficient as a matter of law to sustain a claim.
Defs.’ Reply at 1-2 (citing
Maldonado v. Fontanes, 568 F.3d 263, 274 (1st Cir. 2009)).
Next, they dispute Mr. Widi’s contention that the Court earlier allowed a claim
to proceed against Special Agent McNeil under a generalized allegation against ATF
agents. Id. at 2-3.
Third, Lieutenant Cady and Officer Brown assert that collateral estoppel does
not bar them from litigating in this civil forum issues resolved in the criminal case.
Id. at 3-5 (citing Bilida v. McCleod, 211 F.3d 166, 170-71 (1st Cir. 2000)).
In Counts IV, V, and VI, Mr. Widi makes the general allegations that “the ATF,
MDEA, EPD, and MSP defendants” violated his rights to be free from unreasonable
searches and seizures, and they conspired to violate those rights. Second Am. Compl.
¶¶ 90, 97, 108. Mr. Widi asserts that there was a pre-search briefing where the
“defendants planned and agreed to unlawfully seize and search Mr. Widi’s tile
company van that was not included in the warrant.” Second Am. Compl. ¶¶ 84, 93,
100. He alleges that “the ATF, MDEA, EPD, and MSP defendants made plans and
agreed to have the MSP defendants enter Mr. Widi’s private property during the
execution of the search warrant to conduct a K-9 sniff on Mr. Widi’s tile company
van.” Id. ¶ 77. He claims that during the search, Detective Curran of the EPD “had
the MSP defendants conduct a sniff of Mr. Widi’s tile company van at McNeil’s
instruction, which came back negative.” Id. ¶ 78.
In Count IV, Mr. Widi says that Lieutenant Cady “attempted to get Mr. Widi’s
consent to allow the ATF and members of the search team to search his tile company
van”, but that Mr. Widi “declined to allow the search.” Id. ¶ 85. Although Mr. Widi
does not allege that in asking Mr. Widi for his consent, Lieutenant Cady did anything
illegal, the Court infers that Mr. Widi is claiming Lieutenant Cady was acting as the
“good cop” and, failing to obtain of his consent, the seizure and search would proceed
according to the planned conspiracy. The Court agrees with Lieutenant Cady that
the conspiracy allegation against him is thin, but the motion to dismiss standards
control the Court’s disposition.
Despite the negative sniff, Mr. Widi alleges that ATF Special Agent McNeil
“directed the seizure of the van” and EPD Chief Short “requested that Brown return
to Mr. Widi’s residence, where [Detective] Curran directed him to observe the van
being loaded on a flatbed.” Id. ¶ 86. Then in Count V, Mr. Widi alleges that after the
van was towed, “[Detective] Curran and [Chief] Short had [Maine State Trooper
Jerome] Carr conduct a second sniff search on the van at [Special Agent] McNeil’s
direction on November 30, 2008, which now came back positive.” Id. ¶ 94. As with
the allegations against Lieutenant Cady, the allegations against Officer Brown are
thin. At best, he participated in the conspiratorial pre-search meeting and watched
the van being seized. Again, however, the Court is constrained by the standards for
a motion to dismiss and must accept Mr. Widi’s allegations as true.
Count VI is a different story. In Count VI, Mr. Widi alleges that [Detective]
Curran submitted an affidavit in support of a state search warrant to Judge O’Neill
at the York District Court per [Special Agent] McNeil and [Chief] Short’s instruction.”
Id. ¶ 101. He lists the members of law enforcement who “agreed to omit information,
regarding the negative sniff with intentional and reckless disregard for the truth
because that fact would have had an adverse affect on the determination of probable
cause.” Id. ¶ 102. They were “[Detective] Curran, [Chief] Short, [Special Agent]
McNeil, [Resident Agent] Armstrong, and [Special Agent] Anderson.” Id. Mr. Widi
makes no allegation that either Lieutenant Cady or Officer Brown was involved in
the preparation or submission of the search warrant and affidavit to Judge O’Neill.
The seminal case in the First Circuit describing the legal standard for motions
to dismiss is Maldonado, which followed the United States Supreme Court’s Twombly
and Iqbal decisions. To set the stage, in Twombly, the Supreme Court addressed a
class action that alleged parallel conduct between telecommunications companies
that was unfavorable to competition but legal, and a conspiracy to restrain commerce
or trade that was illegal under the Sherman Act. 550 U.S. at 548-51. The Supreme
Court concluded that “a bare assertion of conspiracy will not suffice” because “without
some further factual enhancement it stops short of the line between possibility and
plausibility of entitlement to relief.” Id. at 557 (internal quotation marks omitted).
In Iqbal, the Supreme Court addressed allegations the Attorney General was
the “principal architect” and the FBI director was “instrumental” in harsh conditions
of confinement and invidious discrimination. 556 U.S. at 662. The Supreme Court
said these allegations regarding the officials’ involvement in the conduct were “bare
assertions, much like the pleading of conspiracy in Twombly” which “amount to
nothing more than a ‘formulaic recitation of the elements’ of a constitutional
discrimination claim . . . .” Id. at 681. These “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Id. at
678. While a court must accept all factual allegations as true when considering a
motion to dismiss, it is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Id. Instead a court must ask whether the nonconclusory factual
allegations are sufficient to push the plaintiff’s conclusions “across the line from
conceivable to plausible.” Id. at 680.
In Maldonado, residents of three public housing complexes brought a civil
rights suit under 42 U.S.C. § 1983 against the Mayor of Barceloneta, Puerto Rico,
alleging that the Mayor “planned, personally participated in, and executed . . . raids
in concert with others” against the residents of public housing complexes during
which municipal officials seized the residents’ family pets and killed them. 568 F.3d
at 266-67, 274. The First Circuit took issue with the absence of any specific details
about how he “planned” or “participated” in the illegal conduct beyond that bare
conclusion. The Mayor was “not named as the individual who directly planned,
supervised, and executed the raids,” but rather, the complaint “merely allege[d] that
he supervised, directly or indirectly, the agencies involved” and that he was present
when one of the raids occurred. Id. There was “no allegation the Mayor participated
in the killing of any pet or directed the services of the private contractor.” Id. The
First Circuit concluded that the “generalized allegation” of the Mayor’s involvement
was “insufficient to push the plaintiffs’ claim beyond the pleadings stage.” Id. at 274.
The Maldonado Court explained that the allegations against the Mayor “do not
establish that his involvement was sufficiently direct to hold him liable for violations
of the plaintiffs’ substantive due process rights.” Id.
Two counts within Mr. Widi’s Complaint fare better than those in Iqbal, and
Maldonado for at least two reasons. First, Iqbal and Maldonado are distinguishable
from Mr. Widi’s Second Amended Complaint because the defendants in those cases
were high ranking officials, not street level officers. See Iqbal, 556 U.S. at 668-69
(noting that the plaintiff had other claims against individual officers, but the
allegations against those “at the highest level of the federal law enforcement
hierarchy” were “the only ones relevant here”). Elected mayors and top political
appointees are generally tasked with setting broad policies, not directly
implementing those policies on the ground or participating in the kind of
confrontations that typically give rise to lawsuits against officers in their personal
capacities. This necessarily makes allegations that high ranking officials entered
into conspiracies about or participated in ground level conduct less plausible than
allegations against street level officers themselves, simply because those officers’ jobs
take them closer to those kinds of situations. Since the decisions of high ranking
officials impact broad swaths of the population and, thus, create more potential
plaintiffs, there is also a greater burden on them if plaintiffs are able to subject them
to discovery with fewer factual allegations or specific details about their involvement.
See id. at 686 (noting the potential burden discovery might have on “high-level
officials who must be neither deterred nor detracted from the vigorous performance
of their duties”). The allegations here are against street level officers with whom Mr.
Widi had direct personal contact during the execution of the search warrant and his
arrest, not high ranking officials removed from the situation.
Second, Mr. Widi’s allegations contain more specific factual support about
Officers Brown and Cady’s involvement than the allegations in Maldonado. Even
assuming Mr. Widi might have a claim against someone for the seizure of his van, see
United States v. Widi, 686, F. Supp 2d 107, 114 (D. Me 2010), his blanket allegations
against dozens of officers do not rise to the level of plausibility against every single
law enforcement defendant. Nevertheless, as regards Officers Cady and Brown, Mr.
Widi makes several specific allegations to support the general one, namely that they
violated and conspired to violate his right to be free from unreasonable searches and
seizures involving his van. He pleads details about the date, time, and location where
the conspiracy began. See Second Am. Compl. ¶ 57 (“The defendants met early in the
morning” for a briefing on November 28, 2008, “at the Eliot Police Station”). He
describes the number of officers present in the room at the time. Id. (there “were
around 20 agents and officers present”). He even describes several of the “plots
hatched” and the officers’ underlying motives. See e.g. id. ¶ 58.
Regarding the van seizure and Officer Cady in particular, Mr. Widi also alleges
that he supervised the other EPD officers, participated in the search of his residence,
was in charge of holding Mr. Widi at the police department, and attempted to get Mr.
Widi to consent to the search of his van. Id. ¶ 19, ¶ 85. Regarding Officer Brown in
particular, Mr. Widi alleges that he participated in the search of Mr. Widi’s residence,
placed Mr. Widi in handcuffs, was involved in the seizure of Mr. Widi’s vehicles, and
more specifically, that he was tasked with observing the van being loaded on a
flatbed. Id. ¶ 20, ¶ 86.
The Court agrees with Officers Brown and Cady that none of these more
specific allegations against them by name states a claim for wrongful conduct, but
the Court finds them sufficient to bolster the allegations about the conspiracy and
responsibility for the searches and seizure. The specific details alleged are not “too
meager, vague, or conclusory to remove the possibility of relief from the realm of mere
conjecture.” S.E.C. v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010).
allegations as true and construing them liberally, the officers’ involvement in the van
seizure or conspiracy “was sufficiently direct” to survive a motion to dismiss.
Maldonado, 568 F.3d at 274. The only specific allegation about the Maldonado
Mayor’s involvement in the pet killings was that he was merely present at one of the
raids. An analogous level of involvement here is that of the unnamed officers who
were not involved in the van seizure but were merely present during the execution of
the search warrant at Mr. Widi’s house. The defendants in that position were indeed
screened and dismissed in earlier orders. In contrast, Officer Brown and Cady were
more directly involved because of their temporal and physical proximity, and because
they allegedly took specific steps in furtherance of the van seizure itself, such as
seeking Mr. Widi’s consent and monitoring the loading of the van. This level of
involvement is more like the uniformed municipal employees and contractors
carrying out the raids than the Mayor in Maldonado. Id.
The Court also agrees with Officers Brown and Cady that the specific
allegations in Counts V and VI do not refer to them by name, and therefore these
claims against them are not as plausible as those in Count IV. Count V, however, is
sufficiently related to the same van seizure and incorporate the earlier allegations
such that it is part of the same conspiracy plausibly stated in Count IV.
By contrast, Count VI is further removed from the events described in Count
IV. In his allegations about the second search warrant and the probable cause
factors, Mr. Widi mentions several other officers by name but does not allege Officers
Brown and Cady had anything to do with the application for a search warrant. There
is no indication they even knew about the efforts to obtain a search warrant for the
van. In short, he has not alleged enough specifics as to them to state a plausible claim
in Count VI.
The Court’s denial of Officer Brown and Cady’s motion as to Counts IV and V
does not reflect the Court’s position on the ultimate likelihood of success by Mr. Widi
at subsequent stages. Unlike a motion to dismiss where the Court must accept the
allegations in the Second Amended Complaint as true, if the Defendants file a motion
for summary judgment, the allegations underpinning Mr. Widi’s Second Amended
Complaint will be tested by a record based on evidence. The Court views either a
motion for summary judgment or, if necessary, a trial on the merits as better vehicles
to resolve Mr. Widi’s allegations.
The Court DENIES Defendants Kevin Cady and Robert Brown’s Motion to
Dismiss (ECF No. 403) as to Counts IV, and V and GRANTS the Motion to Dismiss
as to Count VI.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 19th day of September, 2017
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