Kendall v. Murray et al
Filing
114
Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered re 81 MOTION for Preliminary Injunction Pursuant to Federal Rule of Civil Procedure 65(a) filed by Steven N. Kendall. " The Court ALLOWS IN PART and DENIES IN PART Plai ntiffs Motion for Preliminary Injunction (Docket No. 81). The Court allows Plaintiffs motion for relief based on the Eighth Amendment claim. Defendant is ordered to, within 30 days, get a second opinion evaluating Plaintiffs Kock Pouch and the mass from a colorectal surgeon or gastroenterologist who has expertise in continent ileostomy. The Court denies the motion with respect to the claim that Plaintiff has not been given a cell with a handicap accessible toilet. " (Coppola, Katelyn)
Case 1:18-cv-10141-PBS Document 114 Filed 10/17/18 Page 1 of 18
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
STEVEN N. KENDALL,
Plaintiff,
v.
SCOTT MURRAY, M.D. et al.,
Defendants.
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Civ. Action No. 18-10141-PBS
MEMORANDUM AND ORDER
October 17, 2018
SARIS, C.J.
Plaintiff Steven Kendall, who is currently in custody at
Federal Medical Center, Devens (“FMC Devens”), brings this
action under 42 U.S.C. § 1983 alleging that the Federal Bureau
of Prisons, Dr. Scott Murray, Dr. Berhan Yeh, and various named
officers1 (collectively “Defendants”) have been deliberately
indifferent to his medical needs in violation of his Eighth and
Fourteenth Amendment rights. (Docket No. 80, Count I). Plaintiff
has a “Kock Pouch,” which is a pouch made from his small
intestine that sits inside his body to hold his stool. On July
20, 2018, Plaintiff moved for a preliminary injunction seeking a
second opinion from a colorectal surgeon or an adult
gastroenterologist to evaluate his Kock Pouch. (Docket No. 81).
Plaintiff alleges that he is having trouble accessing the pouch
1
The government contends that the individually named employees have not been
served.
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in the proper way because of a hematoma which puts pressure on
the pouch and has lasted for over a year. Plaintiff also asks
the Court to order FMC Devens to provide him with a handicap
accessible bathroom facility (Count IV and VI).2
The Court held an evidentiary hearing on May 26, 2018 via
videoconference. At the time of the hearing, Plaintiff was pro
se. The Court appointed pro bono counsel in light of the alleged
medical emergency. Three additional days of hearings were held
ending on August 21, 2018. During the hearings, Plaintiff
testified and introduced the expert testimony of Dr. Steven
Freedman, a gastroenterologist at the Beth Israel Deaconess
Medical Center.
The government introduced the testimony of two
defendants Dr. Berhan Yeh, the Clinical Director, and Dr. Scott
Murray, Plaintiff’s treating physician, and submitted
Plaintiff’s voluminous medical records. After the hearing, the
motion is ALLOWED IN PART and DENIED IN PART.
I. FINDINGS OF FACT
Based on the evidentiary hearings, the medical records and
affidavits, the Court finds the following facts are likely true.
2
The Amended Complaint (Docket No. 80) also asserts claims under Article 26
and 114 of the Constitution of the Commonwealth of Massachusetts (Counts II
and V); the Administrative Procedure Act (Count III); the Eighth Amendment
for conditions of confinement (Count VII); and the First Amendment (Count
VIII).
2
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A. The Kock Pouch (K-Pouch)
Plaintiff is a 63-year old man serving a 26-month term of
imprisonment for Conspiracy to Commit Unlawful Distribution of
Oxycodone. He arrived at FMC Devens on April 12, 2017. He is
scheduled to be released in March 2019. Since the mid-1980’s
Plaintiff has suffered from ulcerative colitis which led to the
removal of his colon.3 Prior to incarceration, Plaintiff received
a colostomy during which his doctors created a “Kock Pouch” – a
form of continent ileostomy which refashioned Plaintiff’s lower
intestines into a reservoir that holds waste generated by his
digestive system.
A K-pouch system includes the pouch, located
inside the body, and a one-way valve on the patient’s abdomen
that prevents leakage from the reservoir and allows the patient
to drain the reservoir. The reservoir is emptied throughout the
day by passing a special catheter through the valve, called a
stoma, into the pouch. In order to drain the reservoir, a
patient is advised to sit over the toilet and near a sink with
running hot water to clean the drain catheter.
Plaintiff has been managing his K-pouch by catheterizing
himself.
Generally, when his pouch is full, he lies down in a
semi-recumbent position on a bed to use a catheter to enter the
stoma to empty the pouch, which sometimes spills over. He then
3
When he arrived he also had a medical history of pulmonary embolus, left
below knee amputation, right total knee replacement, chronic opioid
dependence, hypertension, sleep apnea, and borderline diabetes.
3
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typically empties the stool into a bucket and then the toilet.
When he is semi-reclined, he can empty his K-pouch without
complications. Sometimes when the K-pouch is not full, he can
empty it while sitting on a toilet.
Before incarceration, Plaintiff had complications with his
K-pouch including pouchitis, intermittent bleeding and
incontinence at the valve site. Since incarceration, he has had
some incontinence issues, but there is no credible evidence of
significant bleeding.
B. Medical Treatment at FMC Devens
Plaintiff’s primary care physician at FMC Devens is
defendant Dr. Scott Murray, who has a specialty in emergency
care medicine. He received his medical degree from the
University of Connecticut and finished his emergency medicine
residency at the Beth Israel Deaconess Medical Center in Boston.
He is board certified in emergency medicine, but has no
expertise in gastroenterology. There are no specialists in
gastroenterology on site at FMC Devens. Defendant Dr. Berhan Yeh
is a Lieutenant Commander in the United States Public Health
Service, and is the Clinical Director of FMC Devens. He has his
medical degree from Boston University and is board certified in
emergency medicine and wound care. Because he did not provide
treatment, his knowledge of Plaintiff’s use of the K-pouch was
not always accurate.
4
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In May 2017, shortly after the start of his incarceration,
Plaintiff was sent for an evaluation with a gastroenterologist
due to his pouchitis. The doctor in Nashoba Valley was not
familiar with the K-pouch, although this is unsurprising given
how rare the K-pouch procedure is. Plaintiff received
antibiotics and an enema.
Plaintiff, who has a myriad of other medical issues,
received anti-coagulation medication by self-injection in June
2017.4 He developed a large hematoma at the injection site in the
lower right quadrant of his abdomen. The hematoma was the size
of Plaintiff’s head or small child’s basketball, and it pressed
on Plaintiff’s stoma when he was in a sitting or standing
position. The hematoma made it difficult for Plaintiff to access
his K-pouch. In July 2017, Dr. Murray sent Plaintiff to have his
hematoma evaluated by the University of Massachusetts Emergency
Department. A doctor recommended conservative management because
of the risk of infection if the hematoma were drained. The CT
scan showed a hematoma measuring 17 x 8 x 9 cm in the abdominal
wall. Plaintiff was going to be admitted for observation, but he
checked himself out against medical advice because he believed
(mistakenly) that the doctors wanted to perform surgery and
overheard one of the surgeons express concern about nicking the
4
He has since been switched to an oral anticoagulant, Warfarin.
5
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K-pouch. In fact, the surgeons recommended conservative
management of the hematoma, not surgery.
In December 2017, Plaintiff was given a CAT scan to examine
the mass which Dr. Murray has diagnosed as a hematoma. Since
then, the mass has shrunk to about 6 cm x 6 cm in size,
alleviating some of the pressure. When Plaintiff is semireclined, the reduced mass does not significantly interfere with
the stoma.
The government disputes that the hematoma is still a
significant issue because Plaintiff is able to catheterize
himself when lying down. In May 2018, almost a year after
Plaintiff developed the hematoma, Dr. Murray saw Plaintiff
catheterize himself by lying down. Docket No. 106 at 62:21-22.
During a physical examination of Plaintiff in July 2018, Dr.
Murray noted that “[w]hen [Kendall] sits up, all of this extra
tissue and the residual hematoma flop over the ostomy site, but
the ostomy site is widely accessibly [sic] when he is laying
[sic] down.” Ex. 15 (Bureau of Prisons Health Services Clinical
Encounter, July 6, 2018). He also noted that the mass was
“clearly getting smaller” and was 6 cm from the opening of the
stoma “while [Plaintiff was] lying flat.” Id. Based on his
observations, Dr. Murray does not intend to order another CAT
scan for Plaintiff because in his view the risk of unnecessary
radiation does not outweigh the benefits. Docket No. 106 at
6
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80:1-8. Dr. Murray also has no plans at the moment to have a
specialist look at the mass or K-pouch to provide a second
opinion. He believes a second opinion is unnecessary because
Plaintiff can use the K-pouch while lying down and the mass is
getting smaller. Id. at 84:4-85:9. At the time of the hearing,
the mass on Plaintiff’s right side had persisted for nearly 14
months. FMC Devens has contracts with various Boston-area
hospitals, including the Beth Israel Deaconess Medical Center,
which has specialists with the expertise needed to provide a
second opinion.
C. Expert Opinion
Dr. Steven D. Freedman, who testified for Plaintiff at the
hearing and submitted an affidavit, has expertise in
gastroenterology and continent ileostomy. Dr. Freedman
specializes in gastroenterology at the Beth Israel Deaconess
Medical Center, where he is the Chief of the Division of
Translateral Research and Director of the Pancreas Center. He is
a professor at Harvard Medical School, has a Ph.D. from Yale
University School of Medicine in Cell Biology, and an M.D. from
the University of Connecticut. Prior to the hearing, Dr.
Freedman reviewed Plaintiff’s medical records but he did not
physically examine Plaintiff. At the hearing Dr. Freedman
explained that the K-pouch was designed for a person to be
upright when inserting the drain catheter into the pouch so that
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one can tip the drain catheter into the toilet bowl to drain the
waste. Docket No. 105 at 100:24-101:9. He also cautioned that
Plaintiff’s mass may not be a hematoma, as Dr. Murray believes,
because a hematoma should resolve on its own in about 60 to 90
days. Id. at 106:2-4. Dr. Freedman was “shock[ed]” that
Defendants had not sought a second opinion because the mass had
persisted for so long. Id. at 111:13-15. In Dr. Freedman’s view,
the physical examination of the mass by Dr. Murray was
insufficient because such an examination cannot indicate to the
physician how deep the mass is or whether it is obstructing the
pouch. Id. at 111:17-112:1.
Dr. Freedman opined the standard of medical care in
Plaintiff’s situation “would be to refer to a colorectal
surgeon, ideally someone who has expertise in a K-pouch”. Id. at
117:3-6. He said that the fact that Plaintiff must access the Kpouch while lying down indicates he should be seen by a
specialist because the K-pouch “was not designed to be accessed
while lying down,” and the fact that Plaintiff cannot access the
stoma anymore while sitting upright indicates “that there’s some
anatomic problem now that has to be resolved.” Id. at 116:12,
24-25. Dr. Freedman said there were significant medical risks if
the mass turned into an abscess and it would be potentially
“life-threatening” if the K-pouch were perforated. Id. at 117:9,
118:2-9. He recommended three colorectal surgeons at Beth Israel
8
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Deaconess who are qualified to work with K-pouches: Peter
Mowschenson, Vitaliy Poylin, and Tom Cataldo. Id. at 120:18-25.
D. The Bathroom
Plaintiff claims he was not offered access to an ADAcompliant bathroom facility. From April 2017 to November 2017,
Kendall was in the Nursing Care Unit at FMC Devens without a
handicapped accessible toilet. Then he was placed in the Special
Housing Unit (SHU) for diverting his pain medication. When he
was returned from the SHU, he was placed in a room with other
men who had similar medical issues. He now is in a single cell
and has the use of a handicap accessible bathroom across the
hallway from his cell, which he says he can use only when the Kpouch is not full. Otherwise, he has to lie down on the bed to
empty it. FMC Devens recently offered Kendall a placement in a
single handicap cell within a medical housing unit, but he
refused. Exhibit 18, “Medical Treatment Refusal.” Instead, he
opted to stay in his current housing unit. Despite his physical
disabilities, Plaintiff exercises robustly and is able to walk
at least a quarter of a mile with the aid of a cane or walker.
E. The SHU
Plaintiff was placed in the Secure Housing Unit (“SHU”)
twice during this litigation. The facts surrounding the first
placement are hotly contested. When Kendall arrived at the room
at FMC Devens for the videoconference with the Court on May 23,
9
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2018, his face appeared to have a bruise. He told the Court he
was struck by a guard while preparing for his testimony. The
government denies these allegations. When he complained that the
guard backhanded him, he was placed in the SHU. According to the
government, it is standard protocol to place an inmate who
accuses a guard of assault in the SHU to protect the inmate. He
was allegedly told if he dropped the complaint, he would be
placed back in a regular cell. He stayed in the SHU for over a
month, from May 23, 2018 until June 29, 2018. The SHU is not
handicapped accessible. When he recanted, he was indeed placed
back in a normal housing unit. He was also placed in the SHU
after testifying in court. The government claims that his was an
administrative detention because he was being transferred
between the Court and the prison. See 28 C.F.R. § 541.23.
Plaintiff claims that the first SHU detention was punitive and
retaliatory.
II. DISCUSSION
A. Legal Standard
In order to determine whether a preliminary injunction
should issue, the Court must weigh (1) the likelihood of success
on the merits; (2) the potential for irreparable harm to the
plaintiff if the injunction is denied; (3) the balance of the
hardship to defendant if enjoined as contrasted with the
hardship to plaintiff if no injunction issues; and (4) the
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effect of the court's ruling on the public interest. See Wine &
Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 46 (1st
Cir. 2005).
B. Eighth Amendment Claim
The Eighth Amendment to the United States Constitution,
which prohibits the infliction of cruel and unusual punishments,
protects prisoners from “deliberate indifference to serious
medical needs.” Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158,
161–62 (1st Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97,
105–06 (1976)).
The Supreme Court has held that deliberate
indifference on the part of prison personnel to the “serious
medical needs” of an inmate constitutes cruel and unusual
punishment because it “offend[s] evolving standards of decency”
that mark the progress of a maturing society. Estelle, 429 U.S.
at 106 (internal quotation omitted).
In order to prove an Eighth Amendment violation based on
inadequate medical care, the plaintiff must satisfy both an
objective and a subjective inquiry. Perry v. Roy, 782 F.3d 73,
78 (1st Cir. 2015).
The objective prong requires proof of a
sufficiently serious medical need, as in “one that has been
diagnosed by a physician as mandating treatment, or one that is
so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” Kosilek v. Spencer, 774
F.3d 63, 82 (1st Cir. 2014) (en banc) (quoting Gaudreault v.
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Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990)), cert.
denied, Kosilek v. O’Brien, 135 S. Ct. 2059 (Mem.) (2015). The
subjective prong requires that the plaintiff show that prison
officials possessed a sufficiently culpable state of mind,
namely, deliberate indifference to the plaintiff’s health or
safety. See Perry, 782 F.3d at 78.
Negligent care or “even
malpractice does not give rise to a constitutional claim;
rather, the treatment provided must have been so inadequate as
‘to constitute “an unnecessary and wanton infliction of pain” or
to be “repugnant to the conscience of mankind.”’”
Leavitt v.
Corr. Med. Serv., Inc., 645 F.3d 484, 497 (1st Cir. 2011)
(citation omitted) (quoting Estelle, 429 U.S. at 105-06); see
also Kosilek, 774 F.3d at 87 n.9 (“[M]edical imprudence—without
more—is insufficient to establish an Eighth Amendment
violation.”).
For purposes of the subjective prong, “deliberate
indifference defines a narrow band of conduct and requires
evidence that the failure in treatment was purposeful.” Kosilek,
774 F.3d at 83 (internal quotation and citation omitted).
“The
obvious case would be a denial of needed medical treatment in
order to punish the inmate.” Feeney, 464 F.3d at 162 (quoting
Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993)).
Deliberate
indifference may also lie in “wanton” or “reckless” actions,
although recklessness is understood “not in the tort law sense
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but in the appreciably stricter criminal-law sense, requiring
actual knowledge of impending harm, easily preventable.” Id.
(quoting Watson, 984 F.2d at 540). Deliberate indifference is
not demonstrated “[w]here the dispute concerns not the absence
of help, but the choice of a certain course of treatment.”
Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991). A prison
official is not deliberately indifferent if he responds
“reasonably to the risk.” Burrell v. Hampshire County, 307 F.3d
1, 8 (1st Cir. 2002).
Based on the record and the assessment of the credibility
of the witnesses, the Court concludes that Plaintiff has shown a
likelihood of success on the merits of the Eighth Amendment
claim. Plaintiff has satisfied the objective prong by
demonstrating that he has a serious medical need (difficulty
properly inserting a catheter into his K-pouch) and the medical
care is not adequate (failure to consult a gastrointestinal
specialist).
The Court finds Dr. Freedman is fully credible
when he opines that the standard of medical care requires a
second opinion by a colorectal surgeon or gastrointestinal
specialist to assess both the K-pouch and the effect of the
nearby mass. To be fair, Doctors Yeh and Murray were acting
reasonably and within the medical standard of care when Kendall
first came to FMC Devens. They initially consulted with a
specialist, and when he developed a mass, they brought him to
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the emergency room at the University of Massachusetts. When the
hematoma persisted, they gave him a CAT scan in December 2017.
There is no evidence that the initial approach of conservative
management (rather than drainage of the hematoma) violated the
medical standard of care or was deliberately indifferent to his
medical needs.
However, Defendants have become deliberately indifferent to
his medical condition now that the mass has lasted for more than
a year. While it has decreased in size, it is still a
significant size and appears to be interfering with the
effective functioning of the K-pouch. Defendants have provided
evidence that Plaintiff has been an inaccurate reporter of his
medical issues and has lied about other matters (like an assault
by a fellow inmate). He also has not been cooperative with
health services after the litigation began in July 2018, when he
refused to let Dr. Murray assess his ability to access his Kpouch while lying down. The government also suggests that if
this Court ordered a second opinion, there might be a flood of
similar requests by other inmates.
Still, the weight of the evidence is that Plaintiff can
only empty a full K-pouch while lying down, in a semi-recumbent
position, which is not the way the K-pouch is supposed to be
used and which creates a serious medical risk to him. Moreover,
the objective evidence is that Plaintiff still has a mass near
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the stoma, although the exact location and nature of the mass is
disputed and may depend on whether Plaintiff is lying down or
sitting up. The creation of a K-pouch is a rare procedure and
there are no GI specialists on staff who have the expertise to
handle complications. Thus, there is a serious medical need
which has been diagnosed by a physician with the requisite
experience as mandating treatment.
With respect to the subjective prong, the court finds that
Plaintiff has met his burden of showing a likelihood of success
that Defendants are deliberately indifferent to his serious
medical need for addressing the ongoing problem with his K-pouch
possibly caused by the hematoma/mass. Further, FMC Devens has
been deliberately indifferent to his need to reevaluate the
mass, which has persisted. Defendants have not sent Plaintiff to
a specialist since the hematoma formed, and neither Dr. Murray
nor Dr. Yeh has any expertise in the area and there are no GI
specialists at FMC Devens. Dr. Murray also testified that he has
no current plan to send Plaintiff to a specialist.
The balance of the harms weighs in Plaintiff’s favor.
Plaintiff is suffering now from the irreparable harm of having
to drain the reservoir lying down rather than upright over a
toilet, and there is a serious risk of perforation of the Kpouch from that position. In addition, there is a risk that the
mass is not a hematoma because according to Dr. Freedman,
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hematomas resolve in 60 to 90 days. A specialist should resolve
whether the mass is a hematoma, seroma, or worse.
There are no countervailing government or public interests
because Beth Israel Deaconness, which has a contract with FMC
Devens, has specialists with knowledge of the K-pouch. There are
likely other specialists at UMass as well. Assessing these
factors, a preliminary injunction is proper at this point.
C. Handicap Accessible Toilet
Count IV alleges a violation of the Americans with
Disabilities Act (“ADA”). The ADA’s protections only extend to
state and local correctional facilities. See 42 U.S.C. §
12131(1)(B); see also Pa. Dep’t. of Corr. v. Yeskey, 524 U.S.
206, 209-10 (1998)(holding that Title II of the ADA covers state
prisoners). However, as alleged in Count VI, Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794(a), applies to
federal prisoners who are in the Bureau of Prisons’ care.5
5
The 1978 amendment to the Rehabilitation Act of 1973 added the phrase “under
any program or activity conducted by any Executive agency or by the United
States Postal Service” to Section 504(a) and required the head of each
Executive Agency to promulgate regulations “to carry out” the 1978 amendment.
See Pub. L. No. 95–602, tit. IV, § 119, 92 Stat. 2955, 2982 (1978).
In accordance with the 1978 amendment to section 504(a) . . . the
Department of Justice submitted the proposed regulations to the
appropriate authorizing congressional committees . . . [and] stated in
the supplementary information concerning the regulations that the
regulations apply “to all programs and activities conducted by the
Department of Justice.” Thus, the regulations governed “the activities
of over 30 separate subunits in the Department, including, for example
. . . the Bureau of Prisons.” The regulations are published at 28
C.F.R. §§ 39.101–.170 (2012).
Cooke v. U.S. Bureau of Prisons, 926 F. Supp. 2d 720, 728–29 (E.D.N.C. 2013)
(internal citations omitted).
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Parties did not sufficiently brief Plaintiff’s disability
claims; however, for purposes of a preliminary injunction,
Plaintiff has not sufficiently alleged irreparable harm. While
Defendants did not provide a handicap accessible toilet to
Plaintiff when he came out of the SHU, or while he was in the
SHU, Plaintiff now has access to a handicap facility across the
hall from his cell, and he has declined the offer of a cell with
a handicap toilet in the cell. While he does have trouble
ambulating, the weight of the evidence is that he moves well
enough to use the handicap accessible toilet across the hall.
Plaintiff has not shown any irreparable harm while he stays in
his current cell.
ORDER
The Court ALLOWS IN PART and DENIES IN PART Plaintiff’s
Motion for Preliminary Injunction (Docket No. 81). The Court
allows Plaintiff’s motion for relief based on the Eighth
Amendment claim. Defendant is ordered to, within 30 days, get a
second opinion evaluating Plaintiff’s Kock Pouch and the mass
from a colorectal surgeon or gastroenterologist who has
expertise in continent ileostomy. The Court denies the motion
with respect to the claim that Plaintiff has not been given a
cell with a handicap accessible toilet.
SO ORDERED.
/s/ Patti B. Saris
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PATTI B. SARIS
CHIEF UNITED STATES DISTRICT JUDGE
18
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