Simmons v. Grandison, et al
Filing
20
OPINION AND ORDER granting in part and denying in part 13 Motion for Summary Judgment. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CATHERINE SIMMONS,
Plaintiff,
Case No. 10-13681
v.
Honorable Patrick J. Duggan
DARRIN GRANDISON and WILLIAM
DAWSON, individually and in their
capacities as Michigan State Police Officers,
Defendants.
/
OPINION AND ORDER
At a session of said Court, held in the U.S.
District Courthouse, Eastern District
of Michigan, on June 20, 2011.
PRESENT:
THE HONORABLE PATRICK J. DUGGAN
U.S. DISTRICT COURT JUDGE
On September 16, 2010, Catherine Simmons (“Plaintiff”) filed this civil rights action
pursuant to 42 U.S.C. § 1983, alleging that Michigan State Police Detective Specialists
Darrin Grandison and William Dawson (“Defendants”) violated her constitutional rights
during an investigation of suspected money laundering. Before the Court is Defendants’
Motion for Summary Judgment, filed on March 8, 2011 pursuant to Federal Rule of Civil
Procedure 56. The matter has been fully briefed, and the Court heard oral argument on
June 9, 2011. For the reasons stated below, the Court grants Defendants’ Motion in part
and denies it in part.
I. Factual and Procedural Background
Detective Specialists Grandison and Dawson are assigned to Gaming Unit of the
Michigan State Police, which is tasked with the enforcement of Michigan’s gambling
laws. On June 7, 2009, Grandison was asked by his Sergeant to investigate a report of
suspicious play at the Greektown Casino in Detroit. The casino’s surveillance team had
advised the Michigan State Police that a patron was “force feeding” slot machines.1
Grandison drove to the casino and called the surveillance staff to learn more about the
specific conduct observed. A surveillance officer explained that Plaintiff had recently
redeemed a “large sum” of TITO tickets2 and had returned to the slot machines, where she
was acquiring more TITO tickets. Upon arriving at the casino, Grandison asked the
surveillance officer for Plaintiff’s description and current location. He then observed
Plaintiff from a distance of approximately forty to fifty feet. Plaintiff inserted a bill into
the slot machine, pushed the “play” button eight to ten times, and cashed out her remaining
credits for a TITO ticket. After watching Plaintiff repeat these steps a number of times,
Grandison contacted casino surveillance. He asked what denomination of bills Plaintiff
was using, and was told that they were $100 bills. Grandison explained to the surveillance
officer that he was going to initiate contact with Plaintiff. Grandison requested uniformed
1
“Force feeding” refers to a patron’s repeated insertion of money into a slot machine
either without gambling or gambling on a very limited basis. According to Grandison,
this tactic is used by those laundering money. The perpetrator feeds currency into the slot
machine to purchase play credits, obtains a ticket for those credits, and redeems the ticket
elsewhere in the casino for new currency.
2
“TITO” is an abbreviation for “ticket in / ticket out,” and refers to the tickets issued and
accepted by the casino’s slot machines.
2
casino security officers to accompany him in order to validate his claim of being a police
officer, as he was dressed in plain clothes at the time.
Grandison and two casino security officers approached Plaintiff. Grandison stated
that he was a state trooper with the Michigan State Police Gaming Section and asked
Plaintiff to cash out and follow him. Plaintiff refused to do so. Grandison asked Plaintiff
a second time, and she again refused. Grandison then pressed the button on the machine to
cash out the remaining credits and instructed Plaintiff to take the ticket and follow him.
Plaintiff took the ticket and accompanied Grandison and the casino security officers to an
interview room.
In the interview room, Grandison searched Plaintiff’s purse for weapons. He then
advised Plaintiff that he was going to take the money and TITO tickets she was holding in
her hand. Plaintiff pulled back at first, but after Grandison explained that the room was
subject to video and audio surveillance, she turned over the money and tickets. Plaintiff
asked to leave, and Grandison replied that she could not leave until after he completed an
accounting of the money and tickets. Grandison asked Plaintiff if she knew what the total
of the money and tickets was, and she responded that she came to the casino with five
thousand dollars. Grandison counted eleven $100 bills and twenty-three TITO tickets. He
totaled these and explained to Plaintiff that his total was $3,543. Grandison then told
Plaintiff that she was free to leave, and she exited the interview room. According to
Grandison, the entire encounter with Plaintiff lasted less than thirty minutes. Grandison
Dep. 49:19-23, Aug. 27, 2010. Plaintiff claims that she was detained for approximately
forty-five minutes. Pl.’s Resp. Br. 2.
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Later that night, Grandison spoke with Detective Specialist William Dawson of the
Michigan State Police Gaming Unit, who had already opened an investigation relating to
possible money laundering by Plaintiff. Grandison therefore turned his materials over to
Dawson. Dawson continued his investigation for the next fifteen months, during which
Plaintiff or her attorney inquired several times about the return of the money. The money
has since been returned to Plaintiff.
Plaintiff filed this suit on September 16, 2010, alleging that her constitutional rights
were violated by Grandison’s search and seizure of her person (Count I); Grandison’s
search and seizure of her property (Count II); and Dawson’s “illegal retention” of her
property during the investigation (Count III).
II. Standard of Review
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The central inquiry is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as
a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505,
2512 (1986). After adequate time for discovery and upon motion, Rule 56 mandates
summary judgment against a party who fails to establish the existence of an element
essential to that party’s case and on which that party bears the burden of proof at trial. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). The movant
has an initial burden of showing “the absence of a genuine issue of material fact.” Id. at
323, 106 S. Ct. at 2553.
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Once the movant meets this burden, the non-movant must come forward with
specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986). To demonstrate a
genuine issue, the non-movant must present sufficient evidence upon which a jury could
reasonably find for the non-movant; a “scintilla of evidence” is insufficient. Liberty
Lobby, 477 U.S. at 252, 106 S. Ct. at 2512. The court must accept as true the
non-movant’s evidence and draw “all justifiable inferences” in the non-movant’s favor.
Id. at 255, 106 S. Ct. at 2513. The inquiry is whether the evidence presented is such that a
jury applying the relevant evidentiary standard could “reasonably find for either the
plaintiff or the defendant.” Id., 106 S. Ct. at 2514.
III. Discussion
A. Governing Law
Although Plaintiff raises her claims under the Due Process Clauses of the Fifth and
Fourteenth Amendments to the United States Constitution, her search and seizure claims
are properly analyzed under the Fourth Amendment. See Graham v. Connor, 490 U.S.
386, 395, 109 S. Ct. 1865, 1871. The Fourth Amendment safeguards “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV.
Police officers may conduct investigatory stops that fall short of traditional arrest
where the officer’s action is supported by reasonable suspicion to believe that criminal
activity may be afoot. United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750
(2002) (citing Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 1874 (1968)). The reasonable
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suspicion inquiry requires the Court, considering the totality of the circumstances, to
determine whether the officer has a “particularized and objective basis” for suspecting
wrongdoing. Id. at 273, 122 S. Ct. at 750 (quoting United States v. Cortez, 449 U.S. 411,
417, 101 S. Ct. 690, 695 (1981)). Police officers may “draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
information available to them that ‘might well elude an untrained person.’” Id. at 273, 122
S. Ct. at 750-51 (quoting Cortez, 449 U.S. at 418, 101 S. Ct. at 695). “Although an
officer’s reliance on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of
criminal activity need not rise to the level required for probable cause, and it falls
considerably short of satisfying a preponderance of the evidence standard.” Id. at 274, 122
S. Ct. at 751 (citations omitted).
B. Plaintiff’s Detention by Grandison
1. Reasonable Suspicion
Grandison had reasonable suspicion to believe that Plaintiff was committing criminal
activity. Casino surveillance had explained to him that Plaintiff’s play was inconsistent
with that of normal gamblers. Grandison also observed Plaintiff in person, concluding that
her gambling activity was minimal and she was attempting to change bills. Grandison’s
training and experience in the enforcement of gaming laws enabled him to recognize the
signs of possible money laundering in Plaintiff’s actions. While Grandison could not yet
establish that Plaintiff had engaged in money laundering, his decision to detain her was
based on more than a hunch. Upon observing specific and unusual behavior that was
consistent with criminal activity, Grandison reasonably chose to investigate further.
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Plaintiff argues that Grandison had no reason to suspect that she was engaged in
illegal activity. She contends that it is not illegal to gamble against a $100 bill eight to ten
times, cash out the remaining balance, and begin the process again with another $100 bill.
Pl.’s Resp. Br. 8. Such conduct is only legal, however, where it is not used to conceal the
proceeds of criminal activity. Plaintiff’s unusual play gave Grandison reason to conclude
that she was merely attempting to change bills. Grandison’s training and experience
indicated that a frequent motive for changing bills is to conceal the proceeds of criminal
activity. This sort of concealment is illegal under Michigan law. See Michigan Compiled
Laws § 750.411k. Grandison could articulate a particularized basis for suspecting
wrongdoing, and the reasonable suspicion standard requires nothing more.3
2. Intrusiveness of the Search and Seizure
The degree of suspicion is only the first part of the reasonableness inquiry relating to
a Terry stop. The Court also considers the manner in which the search and seizure were
conducted. Terry, 392 U.S. at 28, 88 S. Ct. at 1883. “The scope of activities during an
investigatory detention must reasonably be related to the circumstances that initially
justified the stop.” United States v. Richardson, 949 F.2d 851, 856 (6th Cir. 1991).
“When actions by police exceed the bounds permitted by reasonable suspicion, the seizure
becomes an arrest and must be supported by probable cause.” Id. “The Supreme Court
3
Plaintiff asserts that Grandison seized her because he believed that the $100 bills “might
have drug residue on them or might be marked money.” Pl.’s Resp. Br. 9. This assertion
finds no support in the evidentiary record before this Court, as Grandison testified that
Plaintiff appeared to be changing the bills for an “unknown” reason. Grandison Dep.
52:6-53:9.
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has declined to establish a litmus test to determine when a Terry stop becomes an arrest,
leaving the lower courts to decide the issue on a case-by-case basis.” Id. To make this
determination, the Court looks to the scope and nature of the restraints placed on a
person’s liberty. Id. (citing United States v. Place, 462 U.S. 696, 705-08, 103 S. Ct. 2637,
2644-45 (1983)). In distinguishing a Terry stop from an arrest, the Court should consider
the conduct of the police, the characteristics of the particular defendant, and the physical
surroundings of the encounter. Id. at 857.
Plaintiff argues that the duration of her detention exceeded that permitted in an
investigatory stop, turning it into an arrest. In assessing whether a detention is too long in
duration to be justified as an investigative stop, courts examine whether the police
diligently pursued a means of investigation that was likely to confirm or dispel their
suspicions quickly, during which time it was necessary to detain the defendant. United
States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575 (1985). The Court must also
consider the law enforcement purposes served by the stop and the time reasonably needed
to effectuate those purposes. Id. at 685, 105 S. Ct. at 1575. Although Plaintiff was
detained in a private interview room rather than in a public area of the casino, Grandison
told her that she could leave once he completed an accounting of the money and TITO
tickets. Grandison did not detain Plaintiff longer than was necessary to seize the suspected
evidence of money laundering. The activity occurring during the stop was limited to the
collection of evidence of suspected money laundering, and thus, did not exceed the
circumstances justifying the stop. Under these facts, the Court cannot conclude that
Plaintiff’s detention constituted an arrest.
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Plaintiff concludes that because she was seized by Grandison, the encounter cannot
be a Terry stop. Pl.’s Resp. Br. 7. A Terry stop, however, is a limited form of seizure
under the Fourth Amendment. Smoak v. Hall, 460 F.3d 768, 778 (6th Cir. 2006). The
issue is whether the seizure is so limited as to be justified by reasonable suspicion, rather
than the more stringent test of probable cause. Because Grandison’s detention of Plaintiff
was limited to the circumstances justifying the initial stop, it was reasonable under the
Fourth Amendment.
C. Grandison’s Seizure of Plaintiff’s Property
“Determining whether a seizure of personal property based upon less than probable
cause is reasonable for the purposes of the Fourth Amendment involves a two-step
inquiry.” Farm Labor Org. Comm. v. Ohio State Hwy. Patrol, 308 F.3d 532, 544 (6th Cir.
2002). “First, the Court must determine whether the detaining officer has a reasonable and
articulable suspicion that the property he wishes to seize is connected with criminal
activity.” Id. (quoting United States v. Sanders, 719 F.2d 882, 887 (6th Cir. 1983)).
“Second, the scope of the seizure must be reasonable, both in duration and in
intrusiveness.” Id. (citing United States v. Place, 462 U.S. 696, 708, 103 S. Ct. 2637,
2645 (1983)). The Court cannot conclude that the fifteen-month duration of the seizure
here falls within the realm of a Terry analysis, which authorizes a brief investigatory stop.
Thus, the seizure was permissible only if supported by probable cause. “‘Probable cause
is defined as reasonable grounds for belief, supported by less than prima facie proof but
more than mere suspicion.’” Sykes v. Anderson, 625 F.3d 294, 306 (6th Cir. 2010)
(quoting United States v. McClain, 444 F.3d 556, 562 (6th Cir. 2005)). It is based on facts
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and circumstances within the officer’s knowledge that are sufficient to warrant a prudent
person in believing that the suspect has committed, is committing, or is about to commit a
criminal offense. Hinchman v. Moore, 312 F.3d 198, 204 (6th Cir. 2002).
Although Grandison had observed Plaintiff gambling in such a manner as to indicate
that she was merely changing bills, that activity in and of itself is not criminal. An offense
is committed only if the money being changed is the proceeds of criminal activity. At the
time Grandison seized Plaintiff’s money, there were no facts known to him indicating that
Plaintiff’s money had been obtained through criminal activity. Absent such facts, a
prudent person could not conclude that Plaintiff had committed, was committing, or was
about to commit a criminal offense. All that was known was that Plaintiff’s gambling was
consistent with the behavior of money launderers. The Court cannot conclude as a matter
of law that Grandison had probable cause to seize Plaintiff’s property for more than a brief
period of time. With respect to this claim, Defendants’ motion for summary judgment
must therefore be denied.
At the hearing, Defendants suggested that the seizure of Plaintiff’s money and tickets
was permissible under the exigent circumstances exception to the Fourth Amendment’s
warrant requirement. A warrantless seizure may be justified by “‘the exigencies of the
situation.’” Mincey v. Arizona, 437 U.S. 385, 394, 98 S. Ct. 2408, 2414 (1978) (quoting
McDonald v. United States, 335 U.S. 451, 456, 69 S. Ct. 191, 193 (1948)). The need to
preserve easily disposable evidence may justify a warrantless search or seizure. Georgia
v. Randolph, 547 U.S. 103, 117 n.6, 126 S. Ct. 1515, 1525 n.6 (2006). The police,
however, bear a “heavy burden” when attempting to demonstrate exigent circumstances.
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Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S. Ct. 2091, 2097 (1984). Exigent
circumstances exist where “police action literally must be ‘now or never’ to preserve the
evidence of the crime.” Roaden v. Kentucky, 413 U.S. 496, 505, 93 S. Ct. 2796, 2802
(1973). The Court is unaware of any authority allowing a prolonged seizure of money
based on mere suspicion that it is the proceeds of criminal activity. As Defendants have
failed to identify any such authority, the Court cannot conclude as a matter of law that the
exigent circumstances exception applies to the seizure of Plaintiff’s money.
D. Dawson’s Retention of Plaintiff’s Property
Plaintiff alleges that Dawson’s retention of her property during the fifteen-month
investigation violated her due process rights. Compl. ¶ 34. The Fourteenth Amendment to
the United States Constitution provides, in pertinent part:
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV § 1. “Nothing in that Amendment protects against all
deprivations of life, liberty, or property by the State.” Parratt v. Taylor, 451 U.S. 527,
537, 101 S. Ct. 1908, 1914 (1981). The Amendment protects only against deprivations
“without due process of law,” and “postdeprivation remedies made available by the State
can satisfy the Due Process Clause.” Id. at 537-38, 101 S. Ct. at 1914. “Although the
state remedies may not provide the respondent with all the relief which may have been
available if he could have proceeded under § 1983, that does not mean that the state
remedies are not adequate to satisfy the requirements of due process.” Id. at 544, 101 S.
11
Ct. at 1917.
Defendants argue that Plaintiff has the state law remedies of conversion and claim
and delivery to recover her property. The Court cannot see how these remedies are
inadequate, as they would ensure the return of Plaintiff’s money. Furthermore, Plaintiff
has specifically sought these remedies in a lawsuit filed in Wayne County Circuit Court on
October 20, 2009. See Defs.’ Br. Supp. Mot. Summ. J. Ex. 4. Because the state remedies
provided are adequate to address the deprivation alleged by Plaintiff, the Court concludes
that Defendants must be granted summary judgment with respect to Plaintiff’s due process
claim.
Plaintiff alleges that Dawson’s retention of her property deprived her of equal
protection of the laws. Compl. ¶ 34. A person asserting an equal protection claim,
however, must show discrimination because of membership in a particular class, not
merely that she was treated unfairly as an individual. Bass v. Robinson, 167 F.3d 1041,
1050 (6th Cir. 1999). Plaintiff has not alleged that she was deprived of her property
because of membership in a particular class. Absent such allegations, Defendants must be
granted summary judgment on Plaintiff’s equal protection claim.
E. Sovereign Immunity
Plaintiff has sued Defendants in both their individual capacities and their official
capacities as officers of the Michigan State Police Department. Defendants argue that
Plaintiff’s official capacity claims against them are barred by the doctrine of sovereign
immunity, and the Court agrees. “Suits against state officials in their official capacity . . .
should be treated as suits against the State.” Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct.
12
358, 361 (1991). Thus, Plaintiff’s claims against Defendants Grandison and Dawson in
their official capacities as Michigan State Police Detective Specialists are actually claims
against the State of Michigan. A nonconsenting State cannot be sued in federal court
unless Congress has abrogated the States’ sovereign immunity through the valid exercise
of its powers. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 116 S. Ct. 1114, 1123
(1996). Congress did not waive the States’ sovereign immunity through 42 U.S.C. § 1983.
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67, 109 S. Ct. 2304, 2310 (1989).
Accordingly, the Court concludes that the doctrine of sovereign immunity bars Plaintiff’s
official capacity claims.
F. Qualified Immunity
“The doctrine of qualified immunity protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v.
Callahan, --- U.S. ----, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S. Ct. 2727, 2738 (1982)). “Qualified immunity balances two important
interests - the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability
when they perform their duties reasonably.” Id. Where a defendant asserts the defense of
qualified immunity, the Court must determine whether the defendant violated a
constitutional right, and whether that right was “clearly established.” Saucier v. Katz, 533
U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001). “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a
13
reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at
202, 121 S. Ct. at 2156. “If the law did not put the officer on notice that his conduct
would be clearly unlawful, summary judgment based on qualified immunity is
appropriate.” Id. at 202, 121 S. Ct. at 2156-57.
Plaintiff has at least raised a genuine dispute of fact as to whether her constitutional
right to be free from unreasonable search and seizure was violated. Grandison seized
Plaintiff’s money and tickets, and Defendants have failed to establish that the probable
cause requirement for such a seizure was satisfied. As for whether a “clearly established”
right was violated, it is certain that a police officer’s reasonable suspicion of criminal
activity only permits a brief seizure of a person or property. The law gives police officers
ample notice that reasonable suspicion does not justify an indefinite seizure. See Sharpe,
470 U.S. at 685, 105 S. Ct. at 1575 (“Obviously, if an investigative stop continues
indefinitely, at some point it can no longer be justified as an investigative stop.”). Because
Defendants have not shown that any mistake as to the law’s requirements was reasonable,
the Court cannot conclude that the defense of qualified immunity bars Plaintiff’s search
and seizure claim against Grandison.
IV. State Court Ruling
At the hearing, Defendants informed the Court that Plaintiff’s state-court action was
recently dismissed. Defendants seek to supplement the record in the event that the state
court concludes that their actions were reasonable, asserting that such a ruling may have
preclusive effect in this suit. Section 1983 does not override the law governing the
preclusive effect of state-court judgments. Migra v. Warren City Sch. Dist. Bd. of Educ.,
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465 U.S. 75, 85, 104 S. Ct. 892, 898 (1984). State-court judgments are entitled to the
same preclusive effect in federal court as the judgment would have in the courts of that
state. Id. at 85, 104 S. Ct. at 898. At the hearing, Defendants were unable to specify when
the judgment might be available. Because speculation concerning the judgment would be
improper, the Court declines to address its preclusive effect at this time. If, once the state
court judgment becomes available, the parties seek to introduce it in support of a renewed
request for summary judgment, the Court will permit them to do so.
V. Conclusion
For the reasons stated above, the Court has concluded that Defendants must be
granted summary judgment with respect to Count I, “Illegal Search and Seizure of
Plaintiff’s Person” and Count III, “Illegal Retention of Property.” Because Plaintiff’s
remaining claim, Count II, “Illegal Search and Seizure of Plaintiff’s Property,” makes no
allegations concerning Defendant Dawson, the Court concludes that Dawson should be
dismissed from this action.
Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment is GRANTED
with respect to Count I, “Illegal Search and Seizure of Plaintiff’s Person” and Count III,
“Illegal Retention of Property.” Defendants’ Motion is DENIED with respect to Count II,
“Illegal Search and Seizure of Plaintiff’s Property.”
IT IS FURTHER ORDERED that Defendant Dawson is DISMISSED FROM
THIS ACTION.
s/PATRICK J. DUGGAN
15
UNITED STATES DISTRICT JUDGE
Copies to:
James C. Cobb, Jr., Esq.
Joseph T. Froehlich, A.A.G.
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