Mays #218101 v. Gill et al
OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 2:11-cv-222
Honorable R. Allan Edgar
DOUG GILL et al.,
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO . 104-134, 110 STAT . 1321 (1996), the Court is required to dismiss any
prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such
relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro
se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s
allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504
U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure
to state a claim against Defendants Lt. Perry, Captain Perry, Smith, Tribley, Jondreau, Capello,
Mackie, Green, Burke, Marshall, Sweeney and CMS. The Court will serve the complaint against
Defendants Gill, Charles, Redinger, Carpenter, Hoover, Haatava, Wise, and Hill.
Plaintiff Marcus D. Mays presently is incarcerated with the Michigan Department of
Corrections (MDOC) and housed at the Marquette Branch prison, though the actions about which
he complains occurred while he was housed at the Baraga Maximum Correctional Facility (AMF).
Plaintiff sues Correctional Medical Services, Inc. (CMS) and the following AMF officials: Resident
Unit Officers (RUOs) Doug Gill, (unknown) Charles, M. Redinger, and (unknown) Carpenter;
Sergeant Brian Hoover; Inspector C. Smith; Nurses Janet Haatava and Zeda Wise; Medical
Supervisor Gloria Hill; Warden Gary Capello; Assistant Deputy Wardens (ADWs) Linda Tribley
and William Jondreau; Hearing Investigator Julie Green; Resident Unit Manager (RUM) (unknown)
Marshall; Assistant RUMs (ARUMs) B. Sweeney and (unknown) Mackie; second-shift Captain
(unknown) Perry; second-shift lieutenants (unknown) Perry and another unknown party.
According to the complaint, Plaintiff was transferred to AMF on November 11, 2008.
He alleges that, on December 1, 2008, Defendant Gill intentionally placed Plaintiff’s wrists in
handcuffs that were too tight. When Plaintiff complained, Gill began twisting Plaintiff’s arms,
causing pain. Defendant Redinger allegedly conspired with Gill by assisting Gill with the handcuffs
and telling Plaintiff to “shut the fuck up.” As Plaintiff was being removed for a routine cell
shakedown, Defendant Charles came to the cell and slammed Plaintiff head-first into the floor.
Charles then kneed Plaintiff in the chest. Defendant Redinger thereafter called Plaintiff a “Nigger”
and slammed Plaintiff to the floor, punching and kicking him. Plaintiff alleges that both Defendant
Carpenter and Defendant Hoover witnessed the assault by Gill, Redinger, and Charles, but never
stopped it or reported it. Plaintiff contends that the assault was motivated by racial discrimination.
Plaintiff immediately requested medical attention for his injuries. Defendant Nurse
Haatava allegedly laughed at Plaintiff, saying, “I see you got beat-up pretty bad but you look OK.”
(Compl., docket #1, Page ID#9.) Plaintiff asked to see a doctor six times, but he was never treated
for the assault-related injuries. The following day, while Defendant Nurse Wise was conducting
medical rounds, Plaintiff again asked for medical treatment and showed her his head, wrist, stomach
and ankle injuries. Wise did not offer treatment. That same date, Plaintiff showed his injuries to
Defendant Healthcare Unit Manager Gloria Hill, but she allegedly failed to provide medical
treatment. Plaintiff alleges that Defendant CMS was responsible for the actions of the AMF medical
Defendant Hoover filed a major misconduct ticket against Plaintiff on December 1,
2008, the date of the alleged assault. The ticket alleged that Hoover had given Plaintiff a direct order
to allow staff to remove his restraints. According to the ticket, Plaintiff responded, “Fuck you bitch
get the gas.” (Ex B. to Compl., Page ID#30.) Plaintiff contends that Hoover’s ticket was issued in
retaliation for Plaintiff’s exercise of his First and Fourteenth Amendment rights to resist the assault
by Defendants Redinger and Charles.
Also on the date of the assault, Defendant Charles issued Plaintiff a major misconduct
ticket for assault on staff. Charles alleged that, when he was escorting Plaintiff out of his cell for a
routine cell shake down, Plaintiff became disruptive. When Charles attempted to control Plaintiff
by a goose neck wrist lock, Plaintiff allegedly jerked away and said, “[F]uck you.” (Id., Page
ID#33.) Plaintiff alleges that Charles’ misconduct ticket, which was corroborated by Gill,1 was
Plaintiff alleges in his complaint that the misconduct was filed by Gill, but his supporting exhibits indicate that
Charles issued the ticket, for which Gill gave a supporting statement.
fabricated in retaliation for Plaintiff’s exercise of “his First and Fourteenth Amenmdent rights not
to destroy his cell, and that the handcuffs were to tight and applied.” (Compl., Page ID#12.)
Similarly, he alleges that Hoover’s ticket was written in retaliation for Plaintiff’s “exercising
protected conduct against RUO M. Redinger and RUO Charles repeated beating and excessive force
and subjecting Plaintiff to cruel and unusual punishment and failure to act.” (Id., Page ID#12.)
Defendant Julie Green was the hearing investigator on the misconduct tickets.
Plaintiff alleges that Defendant Green viewed the video evidence that incriminated Redinger and
Charges, but she participated in the conspiracy by showing deliberate indifference to the use of
excessive force. According to the attachments to the complaint, Defendant Green issued three
memoranda to the hearings officer, Susan Burke.2 In the first memo, Green advised the hearings
officer that she had taken statements from Plaintiff and his two witnesses, all of which were attached
to the memo. In the second memo, Green advised that she had reviewed the relevant three-minute
portion of the surveillance videotape, and she listed the actions that occurred at various points in that
tape. In the third memo, Green forwarded a copy of the video to the hearing officer, together with
a verification that it was a true copy. (Ex. B to Compl., Page ID##27-29.) In his statement to the
hearings officer, Plaintiff stated, “All I told him was to tell the red tag not to tear my room up when
they shook it down. They told me to shut the fuck up and threw me on the ground. This is all in
retaliation for the shower incident.”
Plaintiff alleges in the body of his complaint that Susan Burke is a Defendant in the action. However, in the
initial section of the form complaint provided for the listing of the names, titles and addresses of Defendants, Plaintiff
does not list Susan Burke. (See Compl., Page ID##2-3.)
Plaintiff contends that Defendant Lieutenant Perry and second-shift Captain Perry3
condoned the excessive use of force and failed to properly train and supervise their subordinates.
Plaintiff also asserts that, on February 24, 2009, Defendant Inspector C. Smith denied his grievance
in violation of MDOC policy and failed to report the assault. He alleges that Defendant Tribley
participated in the conspiracy when, on February 24, 2009, she issued an untimely response to
Plaintiff’s Step I grievance, violating MICH . DEP ’T OF CORR., Policy Directive 01.04.110, MICH .
COMP . LAWS §§ 791.3315 and 791.3310. Plaintiff contends that Defendant Capello violated MDOC
policy by not responding to Plaintiff’s Step II grievance in a timely fashion and participated in the
unlawful conduct by denying Plaintiff’s Step II grievance on March 19, 2009. In addition, Plaintiff
alleges that Defendant ARUM Mackie acquiesced or condoned the unconstitutional conduct and
participated in the conspiracy because he was on duty the day of the incident and had full knowledge
that Plaintiff had been assaulted and denied medical care. Plaintiff alleges that Defendant ADW
Jondreau failed adequately to train and supervise his subordinates. In addition, Plaintiff alleges that
Defendant RUM Marshall failed to act to eliminate the unsafe prison conditions and discrimination
and retaliation by his subordinates. Plaintiff alleges that former MDOC Director Patricia Caruso is
responsible for failing to train and supervise her employees. Plaintiff also contends that ADW Jeff
Plaintiff names “Unknown 2nd Shift Capt. Perry” in his list of Defendants, immediately before “Unknown 2nd
Shift Lt. Perry.” (Compl., Page ID##2-3.) However, the body of the complaint mentions only one Defendant by the
name of Perry, who he describes as a second-shift Lieutenant. Plaintiff does, however, discuss in the body of his
complaint an unknown second-shift Captain who allegedly had supervisory liability for the actions of his subordinates.
The Court assumes that the unknown second-shift Captain and second-shift Captain Perry are one and the same person
and that Plaintiff inadvertently repeated the name “Perry” in his list of Defendants. For the sake of consistency within
this opinion and with the docket sheet, the Court will continue to refer to the second-shift Captain as “second-shift
Larson knew or should have known that Defendant Charles had a history of unconstitutional
For relief, Plaintiff seeks declaratory and injunctive relief, together with
compensatory, punitive and nominal damages.
Failure to state a claim
A complaint may be dismissed for failure to state a claim if “‘it fails to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include
more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). The court must determine whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at
1949. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949
(quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’
– that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (quoting FED . R. CIV . P. 8(a)(2));
Plaintiff refers to Patricia Caruso and Jeff Larson as Defendants in the body of his complaint. However, in the
initial section of the form provided for the listing of the names, titles and addresses of Defendants, Plaintiff does not list
Patricia Caruso or Jeff Larson.
see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal
plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C.
§§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
Plaintiff alleges that Defendants Gill, Charles, and Redinger conspired to attack him,
and Defendants Carpenter and Hoover joined in that conspiracy when they observed the assault but
failed to intervene or report the assaulting officers.. He also alleges that Hearing Investigator Green
joined the conspiracy when, after observing the videotape, she failed to take corrective action.
Further, Plaintiff alleges that Defendants Mackie, Marshall, Tribley, Smith, and Jondreau joined the
conspiracy when they took no action to sanction the assaulting officers, despite learning of the
injuries to Plaintiff. In addition, Plaintiff alleges that Nurses Haatava and Wise conspired to cover
up the attack by denying medical care, and that CMS joined that conspiracy as the supervisory
authority that failed adequately to train.
To state a claim for conspiracy, a plaintiff must plead with particularity, as vague and
conclusory allegations unsupported by material facts are insufficient. Twombly, 550 U.S. at 565
(recognizing that allegations of conspiracy must be supported by allegations of fact that support a
“plausible suggestion of conspiracy,” not merely a “possible” one); Fieger v. Cox, 524 F.3d 770, 776
(6th Cir. 2008); Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003); Gutierrez v. Lynch, 826
F.2d 1534, 1538 (6th Cir. 1987); Smith v. Rose, 760 F.2d 102,106 (6th Cir. 1985); Pukyrys v. Olson,
No. 95-1778, 1996 WL 636140, at *1 (6th Cir. Oct. 30, 1996). A plaintiff’s allegations must show
(1) the existence or execution of the claimed conspiracy, (2) overt acts relating to the promotion of
the conspiracy, (3) a link between the alleged conspirators, and (4) an agreement by the conspirators
to commit an act depriving plaintiff of a federal right. Lepley v. Dresser, 681 F.Supp. 418, 422
(W.D. Mich. 1988). “[V]ague allegations of a wide-ranging conspiracy are wholly conclusory and
are, therefore, insufficient to state a claim.” Hartsfield v. Mayer, No. 95-1411, 1996 WL 43541, at
*3 (6th Cir. Feb. 1, 1996). A simple allegation that defendants conspired to cover up wrongful
actions is too conclusory and too speculative to state a claim of conspiracy. Birrell v. State of Mich.,
No. 94-2456, 1995 WL 355662, at *2 (6th Cir. June 13, 1995).
Plaintiff’s claims of conspiracy against Defendants Green, Mackie, Marshall, Tribley,
Smith, Jondreau, Haatava, Wise, and CMS are wholly conclusory. Plaintiff makes no allegation
against any of these Defendants that demonstrates a link or agreement between them and the
assaulting officers. Conclusory allegations of parallel conduct, while hinting at a “possibility” of
conspiracy, do not contain “enough factual matter (taken as true) to suggest that an agreement was
made.” Twombly, 550 U.S. at 556. Instead, the Court has recognized that although parallel conduct
may be consistent with an unlawful agreement, it is insufficient to state a claim where that conduct
“was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed
. . . behavior.” Iqbal, 129 S. Ct. at 1250. Plaintiff therefore fails to state a plausible claim of
conspiracy against Defendants Green, Mackie, Marshall, Tribley, Smith, Jondreau, Haatava, Wise,
Because the Court concludes that Plaintiff adequately has stated an Eighth
Amendment claim against the assaulting officers and observers (Gill, Charles, Redinger, Carpenter
and Hoover), it declines to decide at this juncture whether Plaintiff states a conspiracy claim against
Other than his vague conspiracy allegations, Plaintiff fails to make factual allegations
against Defendants Lieutenant Perry and the unknown second-shift Lieutenant, second-shift Captain
Perry, Inspector C. Smith, ADW Tribley, ADW Jondreau, Warden Capello, ARUM Mackie, RUM
Marshall, and CMS, other than his claim that they failed to adequately supervise their subordinates
or failed to adequately investigate or respond to his grievances. Government officials may not be
held liable for the unconstitutional conduct of their subordinates under a theory of respondeat
superior or vicarious liability. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009); Monell v. New York
City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir.
2009). A claimed constitutional violation must be based upon active unconstitutional behavior.
Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir.
2002). The acts of one’s subordinates are not enough, nor can supervisory liability be based upon
the mere failure to act. Grinter, 532 F.3d at 575; Greene, 310 F.3d at 899; Summers v. Leis, 368
F.3d 881, 888 (6th Cir. 2004). Moreover, § 1983 liability may not be imposed simply because a
supervisor denied an administrative grievance or failed to act based upon information contained in
a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Iqbal, 129 S. Ct. at 1948. Plaintiff has failed to allege that Defendants Lieutenant
Perry and the unknown second-shift Lieutenant, second-shift Captain Perry, Inspector Smith, ADW
Tribley, Warden Capello, ARUM Mackie, and CMS engaged in any active unconstitutional
behavior.5 Accordingly, he fails to state a claim against them.
Absence of Allegations
Plaintiff names ARUM B. Sweeney as a Defendant in the action. Defendant
Sweeney, however, is not mentioned in the body of the complaint. It is a basic pleading essential
that a plaintiff attribute factual allegations to particular defendants. See Twombly, 550 U.S. at 544
(holding that, in order to state a claim, Plaintiff must make sufficient allegations to give a defendant
fair notice of the claim). Where a person is named as a defendant without an allegation of specific
conduct, the complaint is subject to dismissal, even under the liberal construction afforded to pro
se complaints. See Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004) (dismissing
complaint where plaintiff failed to allege how any named defendant was involved in the violation
of his rights); Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (dismissing plaintiff’s
claims where complaint did not allege with any degree of specificity which of the named defendants
were personally involved in or responsible for each alleged violation of rights); Griffin v.
Montgomery, No. 00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000) (requiring allegations
of personal involvement against each defendant); Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722,
As the Court previously noted, Plaintiff also claims that Patricia Caruso and Jeff Larson are responsible for
failing to adequately supervise or train their subordinates. Although Caruso and Larson are not listed as Defendants in
the appropriate section of the complaint, even had they been properly named, Plaintiff’s allegations against them based
on their supervisory liability also would fail because Plaintiff has not alleged that they engaged in active unconstitutional
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at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims against those individuals are without a basis in law
as the complaint is totally devoid of allegations as to them which would suggest their involvement
in the events leading to his injuries.”). Because Plaintiff’s claims fall far short of the minimal
pleading standards under FED . R. CIV . P. 8 (requiring “a short and plain statement of the claim
showing that the pleader is entitled to relief”), his complaint against Defendant Sweeney must be
Plaintiff alleges that the misconduct charges filed by Defendants Charles and Hoover
were false, as were the false statements submitted by Defendants Gill and Redinger to support those
charges. He also complains that Defendant Green, as hearing investigator on the misconduct tickets,
participated in the unconstitutional conduct of the assaulting officers by failing to take action against
them, despite having viewed the videotape of the incident. Plaintiff further alleges that Susan Burke,
as the hearing officer, received the false statements of the officers. Plaintiff implies without actually
stating that Defendant Green inadequately investigated his misconduct charges and that Susan Burke
wrongly found him guilty of those charges.
A prisoner’s ability to challenge a prison misconduct conviction depends on whether
the convictions implicated any liberty interest. In the seminal case in this area, Wolff v. McDonnell,
418 U.S. 539 (1974), the Court prescribed certain minimal procedural safeguards that prison officials
must follow before depriving a prisoner of good-time credits on account of alleged misbehavior. The
Wolff Court did not create a free-floating right to process that attaches to all prison disciplinary
proceedings; rather the right to process arises only when the prisoner faces a loss of liberty, in the
form of a longer prison sentence caused by forfeiture of good-time credits:
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It is true that the Constitution itself does not guarantee good-time credit for
satisfactory behavior while in prison. But here the State itself has not only provided
a statutory right to good time but also specifies that it is to be forfeited only for
serious misbehavior. Nebraska may have the authority to create, or not, a right to a
shortened prison sentence through the accumulation of credits for good behavior, and
it is true that the Due Process Clause does not require a hearing “in every conceivable
case of government impairment of private interest.” But the State having created the
right to good time and itself recognizing that its deprivation is a sanction authorized
for major misconduct, the prisoner’s interest has real substance and is sufficiently
embraced within Fourteenth Amendment “liberty” to entitle him to those minimum
procedures appropriate under the circumstances and required by the Due Process
Clause to insure that the state-created right is not arbitrarily abrogated.
Wolff, 418 U.S. at 557 (citations omitted).
Plaintiff does not allege that his major misconduct convictions resulted in any loss
of good-time credits, nor could he. The Sixth Circuit has examined Michigan statutory law, as it
relates to the creation and forfeiture of disciplinary credits6 for prisoners convicted for crimes
occurring after April 1, 1987. In Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007), the court determined
that loss of disciplinary credits does not necessarily affect the duration of a prisoner’s sentence.
Rather, it merely affects parole eligibility, which remains discretionary with the parole board. 481
F.3d at 440. Building on this ruling, in Nali v. Ekman, 355 F. App’x 909 (6th Cir. 2009), the court
held that a misconduct citation in the Michigan prison system does not affect a prisoner’s
constitutionally protected liberty interests, because it does not necessarily affect the length of
confinement. 355 F. App’x at 912; accord, Wilson v. Rapelje, No. 09-13030, 2010 WL 5491196,
at * 4 (E.D. Mich. Nov. 24, 2010) (Report & Recommendation) (“plaintiff’s disciplinary hearing and
major misconduct sanction does not implicate the Fourteenth Amendment Due Process Clause”),
For crimes committed after April 1, 1987, M ichigan prisoners earn “disciplinary credits” under a statute that
abolished the former good-time system. M ICH . C O M P . L AW S § 800.33(5).
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adopted as judgment of court, Order of Jan. 4, 2011. Plaintiff therefore has no liberty interest in his
disciplinary credits. See Bell v. Anderson, 301 F. App’x 459, 461-62 (6th Cir. 2008).
Even in the absence of a protectible liberty interest in disciplinary credits, a prisoner
may be able to raise a due-process challenge to prison misconduct convictions that result in a
significant, atypical deprivation. See Sandin v. Connor, 515 U.S. 472 (1995). Plaintiff has not
identified any significant deprivation arising from his convictions. Unless a prison misconduct
conviction results in an extension of the duration of a prisoner’s sentence or some other atypical
hardship, a due-process claim fails. Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004). As a
consequence, Plaintiff fails to state a due process claim against Defendants Charles, Hoover, and
Green, or against Hearing Officer Sarah Burke.
Upon review, the Court concludes that Plaintiff’s remaining allegations against
Defendants Gill, Charles, Redinger, Carpenter, Hoover, Haatava, Wise, and Hill are sufficient to
warrant service of the complaint.
Having conducted the review now required by the Prison Litigation Reform Act, the
Court determines that Defendants Lt. Perry, Captain Perry, C. Smith, Tribley, Jondreau, Capello,
Mackie, Green, Burke, Marshall, Sweeney and CMS will be dismissed for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court will serve
the complaint against Defendants Gill, Charles, Redinger, Carpenter, Hoover, Haatava, Wise, and
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An Order consistent with this Opinion will be entered.
/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge
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