Barton v. City of Lincoln Park et al
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARYJUDGMENT 34 IN PART AND DENYING DEFENDANTS' MOTION FOR SUMMARYJUDGMENT IN PART. Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-cv-13362
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
CITY OF LINCOLN PARK, ET AL.
UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT  IN PART AND DENYING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT IN PART.
This is an excessive force action against four police officers and the City of
Lincoln Park. Plaintiff alleges both federal and state theories for relief. Pending
before the Court is Defendants’ Motion for Partial Summary Judgment . For the
reasons stated below, the Court will GRANT Defendants’ Motion IN PART and
DENY Defendants’ Motion IN PART.
II. Factual Allegations
On the night of November 21, 2013, James Barton (hereinafter “Plaintiff”)
and his friend Todd Daw went to the Best Damn Bar & Grill in Lincoln Park. Dkt.
No. 38, p. 9 (Pg. ID 364). The men got drunk, after consuming about seven to nine
beers each. Dkt. No. 38-8, pp. 10–11 (Pg. ID 404–05). At about 1:30AM on
November 22, 2013, the two men walked to the Plaintiff’s home. Id. The Plaintiff
rented a home in Lincoln Park with his girlfriend, Michelle Faulkner. Id., p. 6 (Pg.
ID 400). Once the two arrived at the Plaintiff’s home, Plaintiff asked his girlfriend
to drive Mr. Daw to his home. Id., p. 11 (Pg. ID 405). Ms. Faulkner refused. Id. An
argument ensued. Id. While the arguing continued, Susan Ferrante (Ms. Faulkner’s
daughter) called the police. Id. Four Lincoln Park Police Officers responded to the
call and arrived at the home. Dkt. No. 38, p. 10 (Pg. ID 365).
Officers Kerr and Lasinskas arrived first. Id. When the officers arrived, Mr.
Daw was outside of the home with Bradley Dorow (Ms. Ferrante’s boyfriend). Id.
The Plaintiff, Ms. Faulkner, and Ms. Ferrante were inside the home, yelling at each
other. Id.; Dkt. No. 38-3, p. 12 (Pg. ID 406). Officers Kerr and Lasinskas entered
Plaintiff’s home and told the Plaintiff to quiet down. Id. Dkt. No. 38-3, p. 12 (Pg. ID
406). After a few minutes, the Plaintiff complied. Id.
Sometime later, Officers Pierson and Behrik arrived. Dkt. No. 38, pp. 10–11
(Pg. ID 365–66). Officers Pierson and Behrik talked to Mr. Daw and Mr. Dorow
outside. Id. Eventually, Officer Pierson joined Officers Kerr and Lasinskas in the
home. Officer Behrik remained outside with Mr. Daw and Mr. Dorow. Id.
According to the Plaintiff, Officers Kerr and Lasinskas grabbed the Plaintiff’s
hand, twisted it, and then told the Plaintiff that he was under arrest. Id. Plaintiff
pulled his hand away because his hand was broken and he recently had surgery that
inserted a rod into his arm. Id. Ms. Faulkner and the Plaintiff explained the Plaintiff’s
injury to the officers, and warned them not to bend his arm because it was extremely
painful. Id. Nevertheless, Plaintiff claims that Officers Kerr and Lasinskas continued
to grab his hand, threw the Plaintiff to the floor, and handcuffed him. Id. While on
the floor, the Plaintiff believes he was punched in his side and his lower back. Id.
Next, officers stood the Plaintiff up and proceeded to escort him out of the
house. Id., p. 12 (Pg. ID 367). A screen door separated the home from outside. Id.
Plaintiff alleges that Officers Kerr and Pierson rammed the Plaintiff’s head into the
aluminum screen door, which caused a two-inch laceration on the Plaintiff’s
Moments later, Officers Kerr and Pierson escorted the Plaintiff to a police
vehicle. Id. Just as the Plaintiff began to get into the vehicle, he claims that he was
yanked out of the car and one of the officers choked him. Id. Throughout the entire
altercation, Plaintiff alleges that Officer Behrik – who remained outside with Mr.
Daw and Mr. Dorow – heard commotion, but did nothing. Id.
As a result of the force used against the Plaintiff during the arrest and
placement into the police vehicle, Plaintiff claims to have suffered physical and
mental injuries. Id. In addition to the laceration on his head, Plaintiff needed
additional medical treatment on his hand and arm and suffered back pain. Id. Plaintiff
now spends most of his days researching remedies to help alleviate his anxiety and
amplified nervousness. Id., p. 13 (Pg. ID 368). In his Complaint, Plaintiff alleges
three counts: (1) excessive force pursuant to 42 U.S.C. § 1983 against each officer;
(2) Fourth Amendment violations against the City of Lincoln Park; and (3) gross
negligence against all Defendants.
III. Legal Standard
Federal Rule of Civil Procedure 56(c) “directs that summary judgment shall
be granted if there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998) (quotations omitted). The court
must view the facts, and draw reasonable inferences from those facts, in the light
most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine dispute of material
fact exists where the record “taken as a whole could not lead a rational trier of fact
to find for the non-moving party.” Matsushita Elec. Indus., Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Ultimately, the
court evaluates “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, 477 U.S. at 251–52, 106 S.Ct. 2505.
IV. Plaintiff’s Section 1983 Claims against Officer Behrik
“[Sixth Circuit] cases teach that, in order to hold Officer [Behrik] liable for
the use of excessive force, [Plaintiff] must prove that [Officer Behrik] (1) actively
participated in the use of excessive force, (2) supervised the officer who used
excessive force, or (3) owed the victim a duty of protection against the use of
excessive force.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). In this case, the
first two possibilities are not relevant. Plaintiff proceeds on a “failure to intervene”
theory, alleging that Officer Behrik breached his duty of protection owed to the
“Generally speaking, a police officer who fails to act to prevent the use of
excessive force may be held liable when (1) the officer observed or had reason to
know that excessive force would be or was being used, and (2) the officer had both
the opportunity and the means to prevent the harm from occurring.” Id. (emphasis).
“No duty to intervene exists, however, where one officer’s act of excessive force
occurs so rapidly that a second officer on the scene lacks a realistic opportunity to
intervene and prevent harm.” Kent v. Oakland Cty., 810 F.3d 384, 402 (6th Cir.
2016) (internal citations omitted).
The Defendants argue that summary judgment is proper because: (1) Officer
Behrik never entered the home; (2) never participated in the arrest of the Plaintiff;
(3) never used any force against the Plaintiff; and (4) did not see any use of force by
the other officers. Dkt. No. 34, p. 17 (Pg. ID 177). The Defendants’ argument is
factually correct, but misses the point. It is undisputed that Officer Behrik did not
actively participate or supervise the application of force against the Plaintiff.
However, the proper focus in a “failure to intervene” case is not what the officer did,
but rather, what the officer did not do. See Smith v. Ross, 482 F.2d 33, 36–37 (6th
Cir. 1973) (“[A] law enforcement officer can be liable under § 1983 when by his
inaction he fails to perform a statutorily imposed duty to enforce the laws equally
and fairly . . . [a]cts of omission are actionable in this context to the same extent as
are acts of commission.”) (emphasis added). Therefore, facts and arguments which
demonstrate that an officer did not participate in the use of force are not dispositive.
Similarly, facts and arguments that an officer did not see any excessive force,
do not moot the issue of whether an officer breached his/her duty of protection. On
the contrary, the Sixth Circuit discourages police officers from escaping liability by
turning a blind eye to another officer’s excessive force. See Bruner v. Dunaway, 684
F.2d 422, 426 (6th Cir. 1982) (adopting and quoting the holding of Byrd v. Brishke,
466 F.2d 6 (7th Cir. 1972) (“We believe it is clear that one who is given the badge
of authority of a police officer may not ignore the duty imposed by his office and fail
to stop other officers who summarily punish a third person in his presence or
otherwise within his knowledge.”) (emphasis added). Therefore, a duty to intervene
can be triggered based on an officer’s mere presence during excessive force,
regardless of whether the officer averted his eyes. Id. (“[P]laintiff was entitled to
have his case against [the defendants] submitted to the jury upon his having offered
testimony that he was beaten by unknown officers in their presence”).
According to the Plaintiff, the application of excessive force occurred: (1)
during his arrest inside the home; (2) upon leaving the home; and (3) during his
placement into the police vehicle. Although Officer Behrik did not physically assist
in Plaintiff’s arrest, Behrik remained in close proximity to the home and police
vehicle. Officer Behrik admits that he was close enough to hear “commotion in the
house”. Officer Behrik also heard “upset yelling” when Mr. Barton was placed into
the police vehicle. Based on Bruner, Behrik’s mere presence at the scene of alleged
excessive force provides an avenue for the Plaintiff’s “failure to intervene” claim.
Additionally, Defendants argue that although Officer Behrik heard yelling, he
admitted the noise was “not unusual”. Nevertheless, this fact does not entitle the
Defendants to summary judgment. When the Court considers Officer Behrik’s
complete testimony alongside allegations that the Lincoln Park Police Department
employs an unconstitutional custom, it must consider the facts in the light most
favorable to the Plaintiff and draw reasonable inferences. See Anderson, 477 U.S. at
255. Although, yelling during an arrest might not be “unusual” to Officer Behrik, it
may still be unconstitutional to ignore it. A reasonable juror could infer that such
commotion was common because the police department employs an unconstitutional
custom or police. Subsequently, there is a genuine dispute of fact – whether Officer
Behrik’s observations rose to a level to put a reasonable officer on notice that
excessive force would be or was being used. See Turner, 119 F.3d at 429. Therefore,
because there is an issue of material fact, this Court cannot grant summary judgment
to the Defendants on the Section 1983 claim against Officer Behrik.
V. Plaintiff’s State Law Gross Negligence Claim
“Michigan’s governmental tort liability act, MICH. COMP. LAWS § §
691.1401 et seq., provides governmental employees with immunity from tort
liability for injuries they cause during the course of their employment so long as the
employee’s conduct ‘does not amount to gross negligence that is the proximate cause
of the injury or damage.’ ” Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 408
(6th Cir. 2007) (emphasis added) (citing MICH. COMP. LAWS §§ 691.1407(2)(c)),
691.1407(7)(a)). “[E]stablishing that a governmental official’s conduct amounted to
‘gross negligence’ is a prerequisite to avoiding that official’s statutory governmental
immunity”. Bletz v. Gribble, 641 F.3d 743, 756 (6th Cir. 2011). However, Michigan
courts have consistently “rejected attempts to transform claims involving elements
of intentional torts into claims of gross negligence.” Vanvorous v. Burmeister, 262
Mich.App. 467, 687 N.W.2d 132, 143 (2004) (overruled on other grounds by Grace
v. Johnson, No. 327468, 2016 WL 6269629 (Mich. Ct. App. Oct. 25, 2016)).
Put simply, Michigan courts reject artful pleading attempts to dress up an
intentional tort claim as a gross negligence claim for the purpose of sidestepping
governmental immunity. See Latits v. Phillips, 298 Mich. App. 109, 120, 826
N.W.2d 190, 197 (2012). To that end, gross negligence claims that are premised on
intentional tort theories are not cognizable under Michigan law. See Livermore, 476
F.3d at 408 (rejecting gross negligence claim against an officer-defendant because it
was “undoubtedly premised on the intentional tort of battery”).
In this case, the Plaintiff alleges gross negligence against Officers Kerr,
Lasinskas, Pierson, and Behrik, and also against the City of Lincoln Park. Plaintiff
claims that his “gross negligence claim is premised upon the breach of the
Defendants’ duty to ‘perform their employment activities so as not to endanger or
cause harm to the Plaintiff.’ ” See Dkt. No. 38, p. 23 (Pg. ID 378) (quoting the
Complaint, Dkt. No. 1, pp. 8–9 (Pg. ID 8–9)). However, despite couching his claim
in terms of breach of duty, Plaintiff is essentially alleging an intentional, offensive
touching – which is barred by VanVorous.
The Complaint serves as proof that the Plaintiff’s proper cause of action is for
intentional battery, and not negligence. The allegations alleged in the Complaint
describe harm caused by the Defendants “grabb[ing]”, “twist[ing]”, “forc[ing]”,
“kick[ing]”, “stomp[ing]”, and “beat[ing]” the Plaintiff. Each verb that the Plaintiff
uses to describe the Defendants’ actions is an intentional touching. Therefore,
Plaintiff’s gross negligence is actually premised on the intentional tort of battery,
and cannot succeed. See Smith v. Stolberg, 231 Mich. App. 256, 258–59, 586
N.W.2d 103, 104–05 (1998) (“While plaintiff couches his claim in terms of a breach
of defendant’s duty ‘not to engage in disruptive behavior, not to speak to opposing
parties in a case in which defendant is engaged as counsel, and not to touch or strike
members of the opposite parties’ family,’ plaintiff is essentially alleging an
intentional, offensive touching. Therefore, plaintiff’s proper cause of action is for
the intentional tort of battery, and not negligence. Accordingly, the trial court
properly granted summary disposition in favor of defendants with regard to
plaintiff’s negligence claim.”) (internal citations omitted).
Bell v. Porter
Plaintiff’s strongest case in support of his claim for gross negligence is Bell v.
Porter, 739 F. Supp. 2d 1005 (W.D. Mich. 2010) – which is not binding on this
Court. Nevertheless, Bell is distinguishable on both the facts and on the pleadings.
The Plaintiff in Bell was a female, double amputee with two prosthetic legs. Id. at
1009. Bell alleged that a police officer caused her to fall backwards off of a public
transportation bus. Id. at 1012. At issue in Bell was whether the cause of the fall was
intentional or reactive, and whether the officer knew the Plaintiff was handicapped.
Id. Based on the Plaintiff’s disability and the allegations in her Complaint, the Bell
Court held that Bell’s gross negligence claims were independent and distinct from
her claims of intentional, offensive touching. Id.
The facts in this case are simply not as unique as the facts in Bell. In this case,
the Plaintiff suffered from an injured right hand and arm. However, the Plaintiff’s
injury does not give rise to a separate cause of action, nor does his injury rise to the
level of a handicap or a disability. In Bell, the Plaintiff’s claim for relief relied on
her status as a double amputee. As a result, Bell brought an action under the
Michigan Persons With Disabilities Civil Rights Act in addition to her Section 1983
claim. Id. at 1016. Therefore, it was Bell’s status as a disabled person that gave rise
to her gross negligence claim. Because the Plaintiff is not disabled and because his
injury does not form the basis of any of his claims, the Plaintiff cannot use his injury
to separate his gross negligence claim from his excessive force claim.
Additionally, the pleadings in this case distinguish it from Bell. At the outset,
Bell’s complaint charged the Defendants with breaching their duty to “treat plaintiff
with respect and dignity as may be consistent with her security,” inter alia. Id. at
1015. At the time of filing, Bell plead allegations of gross negligence that were based
on her status as a disabled person and distinct from her allegations of excessive force.
Id. The Plaintiff’s pleadings are dissimilar.
In this case, the Plaintiff attempts to supplement his Complaint with portions
of Bell’s complaint. But Plaintiff’s attempt is futile. In his Response to the
Defendants’ Motion for Partial Summary Judgment, the Plaintiff quotes the
allegations that were plead in Bell and summarily asserts, “[t]hese duties were
certainly breached by the Defendant’s in the instant action.” See Dkt. No. 38, p. 23
(Pg. ID 378). Plaintiff hopes that referencing the language in Bell’s complaint will
somehow transform his own Complaint. However, Plaintiff’s post-hoc attempt to
dress up his complaint with Bell’s complaint is the type of “artful pleading” that
Michigan courts explicitly reject. See Latits v. Phillips, 298 Mich. App. 109, 120,
826 N.W.2d 190, 197 (2012) (“[P]laintiff cannot avoid the protections of immunity
by ‘artful pleading.’). Therefore, Bell is inapposite.
Wells v. City of Dearborn Heights
Additionally, at oral argument, the Plaintiff relied on Wells v. City of
Dearborn Heights, 538 F. App’x 631, 642 (6th Cir. 2013). Plaintiff’s reliance on
Wells is misplaced because the holding in Wells is narrow and not supported by the
facts in this case. Wells discusses but does not explicitly adopt the holding from
Philpott v. City of Portage, No. 4:05 CV 70, 2006 WL 2385316, at *1 (W.D. Mich.
Aug. 17, 2006) (“It is true that a federal district court in Michigan has recognized a
cause of action for gross negligence under Michigan law where an officer fails to
intervene on behalf of an arrestee being subjected to excessive force.”). Wells is
narrow because it only speaks to gross negligence claims that proceed on a failure
to intervene theory. In Philpott, the court denied summary judgment to police
officers who ignored an arrestee’s repeated and continuous complaints that her
handcuffs were too tight.
Because Plaintiff only alleges a failure to intervene claim against Officer
Behrik, Wells and Philpott can only speak to gross negligence as it applies to Officer
Behrik. Furthermore, Wells distinguished Philpott because the officers in Philpott
ignored “ongoing conduct”. Id. at 642 (emphasis in original); see also Philpott, 2006
WL 2385316, at *1 (“During the next hour or so, [the Plaintiff] complained
repeatedly and loudly to Defendants that the handcuffs were too tight and that her
left hand and fingers were going numb.”). Similarly, Philpott is distinguished on the
present facts because there was no “ongoing conduct”. In this case, Officer Behrik
heard two instances of commotion: shortly after arriving at Plaintiff’s home and
when Plaintiff was being placed in the police car. Two, separate instances of nonspecific commotion do not rise to the level of repeated complaints of pain for over
an hour – which Philpott describes. Therefore, Wells is distinguishable.
Neither Wells nor Bell offer refuge to the Plaintiff. Because the Plaintiff is
attempting to transform an intentional, offensive touching claim into a claim for
gross negligence, Michigan law bars the claim. Thus, Defendants are entitled to
summary judgement on Plaintiff’s gross negligence claim.
VI. Plaintiff’s Section 1983 Claim Against the City of Lincoln Park
Plaintiff’s § 1983 claim against the City of Lincoln Park “must demonstrate
that the alleged federal violation occurred because of a municipal policy or custom.”
Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978)); see also Miller v. Sanilac Cnty., 606 F.3d 240,
254–55 (6th Cir. 2010). Plaintiff must make this showing by demonstrating one of
(1) the existence of an illegal official policy or legislative enactment;
(2) that an official with final decision making authority ratified illegal
(3) the existence of a policy of inadequate training or supervision; or
(4) the existence of a custom of tolerance or acquiescence of federal
Burgess, 735 F.3d at 478 (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429
(6th Cir. 2005) (emphasis added)). “A municipality ‘may not be sued under § 1983
for an injury inflicted solely by its employees or agents.’ ” Id. (quoting Monell, 436
U.S. at 694).
To succeed on a failure to train or supervise claim in the Sixth Circuit, Plaintiff
must prove the following:
(1) the training or supervision was inadequate for the tasks performed;
(2) the inadequacy was the result of the municipality’s deliberate
(3) the inadequacy was closely related to or actually caused the injury.
Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir.
“ ‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence of his action.”
Regets v. City of Plymouth, 568 Fed. App’x. 380, 394 (6th Cir. 2014) (quoting Bd.
of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997)). There are two ways to
demonstrate deliberate indifference. Plaintiff could “show prior instances of
unconstitutional conduct demonstrating that the [City of Lincoln Park] has ignored
a history of abuse and was clearly on notice that the training in this particular area
was deficient and likely to cause injury.” Plinton v. Cnty. of Summit, 540 F.3d 459,
464 (6th Cir. 2008) (quoting Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)).
In the alternative, Plaintiff could show “a single violation of federal rights,
accompanied by a showing that a municipality has failed to train its employees to
handle recurring situations presenting an obvious potential for such a violation . . .”
Id. (quoting Bryan Cnty., 520 U.S. at 409).
In this case, the Plaintiff proceeds on a failure to train/supervise claim.
Subsequently, the Plaintiff must demonstrate: (1) failure to train or supervise, (2)
deliberate indifferentness, and (3) relatedness. See Ellis ex rel. Pendergrass, 455
F.3d at 700. Thus, if the evidence presents sufficient disagreement of the failure to
train/supervise factors, summary judgment is improper. See Anderson, 477 U.S. at
The Defendants argue that the Plaintiff cannot establish the prerequisite to
municipal liability under § 1983 because the Plaintiff “can only support his claim
with the allegations regarding his particular incident on November 22, 2013.” See
Dkt. No. 34, p. 22 (Pg. ID 182). The Defendants are incorrect. Additionally, there is
an issue of material fact with respect to each of the three prongs required for a failure
to train or supervise theory.
First, both officers Kerr and Lasinskas admit that they cannot recall the name
of their 2013 supervisor. Dkt. No. 38-5, p. 5 (Pg. ID 426); Dkt. No. 38-6, p. 5 (Pg.
ID 448). Plaintiff uses this fact to allege that the City of Lincoln Park fails to properly
supervise its officers. Second, Officer Lasinskas admits to having two citizen
complaints and one verbal reprimand against him. Dkt. No. 38-6, pp. 4–5 (Pg. ID
448–49). However, Officer Lasinskas could not recall if he suffered consequences
or what the final dispositions were for the complaints and the reprimand. Id.
Additionally, Officer Kerr admitted that he was unaware of the last time that he had
any training on the use of force. Dkt. No. 38-5, p. 5 (Pg. ID 426). On these facts, a
reasonable juror could infer that the City of Lincoln Park fails to punish wrongdoing
officers and fails to adequately train on the use of force. Those inferences give rise
to disagreement about whether the City of Lincoln Park failed to train its employees
to handle recurring situations. Therefore, there is an issue of material fact regarding
whether the City of Lincoln Park is deliberately indifferent to properly training and
supervision. Third, because force was used against the Plaintiff, a jury could find
that the inadequate training on the use of force was related to the Plaintiff’s injuries.
After drawing reasonable inferences from those facts, in the light most
favorable to the Plaintiff, there is an issue of material fact regarding whether the City
of Lincoln Park failed to properly supervise or train its officers. Subsequently, the
evidence is not so one-sided that the Plaintiff must prevail on this issue as a matter
of law. See Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505. Therefore, this Court
cannot grant summary judgment to the Defendants on this issue.
For the reasons discussed above, the Court will GRANT Defendants’ Motion
for Partial Summary Judgment  with respect to Plaintiff’s state-law gross
negligence claims. The Court will DENY Defendants’ Motion for Partial Summary
Judgment with respect to Plaintiff’s Section 1983 claims against Officer Behrik and
Plaintiff’s Section 1983 claims against the City of Lincoln Park.
Dated: December 20, 2016
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, December 20, 2016, by electronic and/or ordinary mail.
Case Manager, (313) 234-5213
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