Threlkel v. Byrd et al
Filing
39
MEMORANDUM OPINION: the Court finds that the Defendants' 33 Motion for Summary Judgment should be granted as to all of the Plaintiff's claims and that all claims against all Defendants should be dismissed with prejudice. Signed by Magistrate Judge John M. Roper on 8/7/2012. (avm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ROY DEAN THRELKEL
VERSUS
PLAINTIFF
CIVIL ACTION NO. 1:11cv39-HSO-JMR
MIKE BYRD, SHERIFF OF JACKSON
COUNTY; and KEN BROADUS, DIRECTOR
OF THE JACKSON COUNTY ADULT
DETENTION CENTER
MEMORANDUM OPINION
DEFENDANTS
This matter is before the Court pursuant to Defendants’ Motion for Summary Judgment
[33] filed in this case. The Court, being fully advised in the premises, and after carefully
considering the pleadings filed as a matter of record, along with the applicable law, and pursuant
to the authority granted by the order of reference in this case [32], finds as follows.
STATEMENT OF THE CASE
The Plaintiff, Roy Dean Threlkel [Threlkel], filed this pro se Complaint on February 3,
2011, alleging violations of his civil rights, pursuant to 42 U.S.C. § 1983, while lawfully
incarcerated for a probation violation in the Jackson County Adult Detention Center [JCADC]
during January 2011. Specifically, Plaintiff alleges that he was subjected to excessive force in
violation of his rights under the Eighth Amendment’s Cruel and Unusual Punishment Clause,
and deliberate indifference to a serious medical need. [10.] Threlkel asserts that Defendants
Mike Byrd [Byrd] and Ken Broadus [Broadus] are liable for failing to properly train the
employees at the JCADC and for refusing medical treatment as requested by Threlkel. (Id., p. 2.)
Threlkel was booked into the JCADC on December 23, 2010, for a probation violation.
[33-1.] An order of revocation was entered on February 9, 2011, in which Threlkel’s probation
was revoked and he was sentenced to serve the remainder of the five (5) year prison term
following violation of the conditions of his post release supervision. [33-3.] Threlkel was
released from the JCADC into the custody of the Harrison County Sheriff’s Department on
February 25, 2011. [33-5.]
On January 7, 2011, Threlkel was housed in cell block O-E of the JCADC when Byrd
and Broadus determined that a shakedown of the O-E cell block was necessary to check for
weapons and other contraband. [33-7, p. 1.] The Defendants assert that the shakedown was
required because of gang related behavior, disruptive behavior and “a change in attitudes in said
cell block.” (Id.) The Emergency Services Unit [ESU] utilized a “flash bang”, a pyrotechnic
distraction device, to “make entry into the cell block as a surprise tactic in an effort to keep both
officers and inmates safe.” (Id.) Razor blades and medications were confiscated during the raid.
(Id.)
Threlkel claims that his ear drum was damaged and that his ears bled and rang for more
than a month following the January 2011 incident. [Doc. 10, p. 2] He asserts that he was not
taken for medical treatment after the incident although he alleges that he asked several times for
treatment. (Id.) The Defendants present a grievance form dated January 8, 2011, filled out by
Threlkel in which he provides that he was standing about 5 feet from the explosion of the
grenade and his right ear drum was damaged as a result. [38-1.] The response, dated January 10,
2011, provides that the ear was examined and the ear drum was not found to be ruptured. (Id.)
Following a request dated January 10, 2011, in which Threlkel seeks medical treatment for his
ear, the responses indicate that a doctor appointment was set for Threlkel. [38-2, 38-3.] On
January 25, 2011, Threlkel seeks information on the date of his doctor appointment, and the
response provides “see nurse on rounds.” [ 38-4.] According to Jona Crowley, a nurse employed
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by the Jackson County Sheriff’s Department at the JCADC, Threlkel was treated on January 5,
2011, for an ear infection. [38-5.] She avers that he received medication for the ear infection
through January 14, 2011. (Id.) She states that she completed the grievance response dated
January 10 and following examination of Threlkel’s ear, did not find a ruptured ear drum. [38-1.]
Threlkel asserts that his Eighth Amendment right to be free from cruel and unusual
punishment was violated when he was allegedly assaulted in the use of the flash grenade. [1, 10.]
He also contends that his Eighth Amendment right to reasonable medical care was violated when
the Defendants were indifferent to his medical needs. [10.]
The Defendants assert that there is no custom, policy or practice in place which resulted
in the alleged violation of Threlkel’s constitutional rights. [34, pp. 9, 11.] In addition, the
Defendants maintain that Threlkel was not refused medical treatment. [34, p. 1.] The Defendants
argue that Threlkel was examined by the nurse and nothing medically serious was found in the
examination. (Id.) He was transferred out of the facility before he could see a doctor. (Id., p. 11.)
The Defendants state that unsuccessful medial treatment, negligence, neglect and disagreement
with medical treatment do not rise to the level of a constitutional violation. (Id., p. 12.) Finally,
the Defendants argue that if they are sued in their individual capacities that they are entitled to
qualified immunity. (Id.) The Defendants also assert that they are exempt from liability for any
state law claims which may be asserted in the complaint. (Id., p. 14.)
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
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matter of law. Fed. R. Civ. P. 56(c). “The mere existence of a factual dispute does not by itself
preclude the granting of summary judgment.” St. Amant v. Benoit, 806 F.2d 1294, 1296-7 (5th
Cir. 1987). “The requirement is that there be no genuine issue of material fact.” Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986). In other words, “[o]nly disputes over the facts that
might effect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248. Furthermore, it is well settled in this circuit that bare allegations are
insufficient to withstand summary judgment because the opposing party must counter factual
allegations by the moving party with specific, factual disputes. Stafford v. True Temper Sports,
123 F.3d 291, 295 -6 (5th Cir. 1997).
In considering a motion for summary judgment, the trial court views the evidence in the
light most favorable to the party resisting the motion. Prison Legal News v. Livingston, 683 F.3d
201, 211 (5th Cir. 2012). To survive summary judgment, the non-movant must demonstrate the
existence of a disputed issue of material fact. See Anderson, 477 U.S. at 247-48. To avoid the
entry of summary judgment, the non-moving party must bring forth significant probative
evidence demonstrating the existence of a triable issue of fact. Whitt v. Stephens County, 529
F.3d 278, 283 n.8 (5th Cir. 2008).
42 U.S.C. § 1983 imposes liability upon any person who, acting under the color of state
law, deprives another of federally protected rights. Therefore, section 1983 affords a remedy to
those who suffer, as a result of state action, deprivation of rights, privileges, or immunities
secured by the Constitution and the Laws of the United States. White v. Thomas, 660 F. 2d 680,
693 (5th Cir. 1981), cert. denied 455 U.S. 1027 (1982).
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ANALYSIS
Under 42 U.S.C. § 1983, liability may be imposed upon any person who, acting under the
color of state law, deprives another of federally protected rights. It neither provides a general
remedy for the alleged tort of state officials, nor opens the federal courthouse doors to relieve
complaints of all who suffer injury at the hands of the state or its officers. A suit against a
governmental agent or officer in his official capacity is a suit against the office that the employee
holds and not against the actual employee. See Kentucky v. Graham, 473 U.S. 159, 165 (1985).
Liability under section 1983 against a governmental agency requires proof of three elements: a
policymaker; an official policy; and a violation of constitutional rights whose “moving force” is
the policy or custom. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002) citing
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001); Monell v. Dep’t of Soc.
Services, 436 U.S. 658, 694 (1978). Monell and later decisions reject supervisors liability
predicated on respondeat superior, because the text of section 1983 will not bear such reading.
Bustos v. Martini Club, Inc., 599 F.3d 458, 468 (5th Cir. 2010). "Congress did not intend
municipalities to be held liable unless action pursuant to official municipal policy of some nature
caused a constitutional tort." Monell, 436 U.S. at 691. An official policy is necessary as a
predicate to recovery under a theory of municipal liability:
Instead, it is when execution of a government's policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is responsible
under § 1983.
Monell, 436 U.S. at 695. Therefore, municipalities may not be held liable for acts of lower level
employees, but may be held liable for constitutional violations committed pursuant to an official
policy or custom. Kohler v. Englade, 470 F.3d 1104, 1115 (5th Cir. 2006).
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In addition, not only must the plaintiff establish that a policy or custom of the
municipality was the “moving force” behind the alleged violation of a constitutional right; he
must also establish that the municipality was “deliberately indifferent” to the known
consequences of the policy. See Lawson v. Dallas County, 286 F.3d 257, 264 (5th Cir. 2002)
(“[T]he municipality must maintain its official policy with deliberate indifference to a
constitutionally protected right.”). Deliberate indifference is an objective standard which
encompasses “not only what the policymaker actually knew but what he should have known,
given the facts and circumstances surrounding the official policy and its impact on the plaintiff’s
rights.” Lawson, 286 F.3d at 264.
The Fifth Circuit has noted that the plaintiff bears an “extremely heavy burden” in
establishing both the municipality’s deliberate indifference and a causal link between the alleged
custom and the alleged constitutional violation. Peters v. City of Biloxi, 57 F. Supp. 2d 366, 376
(S.D. Miss. 1999); see Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998); Piotrowski, 237
F.3d at 580 (Stating that these two requirements “must not be diluted”).
I.
Excessive Force and Inadequate Training
A. Inadequate Training Claim
A municipality's failure to properly train or supervise its employees can be a policy or
custom giving rise to § 1983 liability. World Wide Street Preachers Fellowship v. Town of
Columbia, 591 F.3d 747, 756 (5th Cir. 2009); see City of Canton, Ohio v. Harris, 489 U.S. 387,
387 (1988). Therefore, Threlkel must prove that: (1) the training procedures of the municipality's
policymaker were inadequate; (2) the municipality's policymaker was deliberately indifferent in
adopting the training policy, and (3) the inadequate training policy directly caused the
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constitutional deprivation. Zarnow v. City of Wichita Falls, 614 F.3d 161, 170 (5th Cir. 2010),
cert. denied ___U.S.___, 131 S.Ct. 3059 (2011). For liability to attach based on an “inadequate
training” claim, Threlkel must specifically allege how a particular training program is defective
or inadequate. Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005).
According to Threlkel, Byrd “is responsible for his employees” and allows these
employees to “assault prisoners at will.” [8, p. 1.] He also asserts that Broadus and Byrd were
present at the time the flash grenade was used in the cell block. [10, p. 2.] Threlkel maintains that
his ear drum was damaged in the raid. (Id.) Threlkel has not filed a response to the summary
judgment motion. (Ct. R.)
Threlkel has not provided any evidence of a policy of inadequate training, use of flash
grenade, denial of medical treatment or supervisory practices followed or implemented by the
Defendants at the JCADC. (Ct. R.) He merely asserts that because the flash bomb was detonated
in the day room, his eardrum burst and the hiring, training, and supervising of jail employees
must have been deficient and deliberately indifferent to his constitutional protections. For a
claim to survive summary judgment, specific facts concerning the adequacy of the training
program must be presented, mere inferences are not enough. Further, there is no pattern of past
incidents involving the misuse of flash-bang devices necessary to support a finding of deliberate
indifference on behalf of the Defendants. These elements must be proven with specific, concrete
facts, for a supervisor cannot be held liable under a theory of respondeat superior for any
negligent acts of his employees in a § 1983 claim. See Fraire v. City of Arlington, 957 F.2d
1268, 1278 (5th Cir. 1992), cert. denied 506 U.S. 973. Accordingly, the Court finds that the
Defendants are entitled to summary judgment on any claim of inadequate training.
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B. Excessive Force
To prevail on an Eighth Amendment excessive force claim, Threlkel must prove not only
that the assault actually occurred but also that it was carried out “maliciously and sadistically”
rather than as part of “a good-faith effort to maintain or restore discipline.” Wilkins v. Gaddy,
___ U.S. ___, 130 S.Ct. 1175, 1180 (2010). “The amount of force that is constitutionally
permissible . .. must be judged by the context in which that force is deployed.” Ikerd v. Blair,
101 F.3d 430, 434 (5th Cir. 1996).
Several factors are relevant in the inquiry whether unnecessary and wanton infliction of
pain was used in violation of a prisoner's eighth amendment right to be free from cruel and
unusual punishment. These include the following factors:
1. the extent of the injury suffered;
2. the need for the application of force;
3. the relationship between the need and the amount of force used;
4. the threat reasonably perceived by the responsible officials; and
5. any efforts made to temper the severity of a forceful response.
Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998).
The finder of fact must keep in mind that prison officials “may have had to act quickly
and decisively.” Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th Cir. 1993), cert denied 509 U.S.
905. To determine whether the force used to effect a particular seizure is reasonable, we balance
the nature and quality of the intrusion on the individual's rights against the “countervailing
governmental interests at stake.” See Graham, 490 U.S. at 395. “Whenever prison officials stand
accused of using excessive physical force in violation of the Cruel and Unusual Punishments
Clause, the core judicial inquiry is ... whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v.
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McMillian, 503 U.S. 1, 7 (1992) (emphasis added).
In this case, Broadus submitted an incident report in which he states that he spoke with
Byrd regarding concerns about gang related violent behavior and the need to search for weapons
in the O-E dayroom. [33-6.] Captain Craig Douglas [Douglas], with the ESU, was contacted to
search the area. (Id.) Broadus indicates the following occurred:
The standard procedure was followed. The main door was opened, a flash bang
grenade utilized, and the entry team performed a dynamic entry and secured the
dayroom without incident.
(Id.)
Broadus also submitted an affidavit in which he states that the shakedown resulted in the
seizure of several razor blades and that the grenade was used to make entry into the cell block a
surprise, and to keep the officers and inmates safe. [33-7, p. 1.] In a report prepared by Douglas,
he stated that Byrd and Broadus ordered that he assist in a “correctional tactical operation” at the
JCADC. [33-8.] Broadus said that the dayroom in the O-E unit was becoming increasingly
violent toward staff and other inmates who did not share a common gang affiliation with several
of the inmates housed in that unit. (Id.) Broadus also indicated that the B-E dayroom was full of
“increasingly violent offenders.” (Id.) Broadus wanted both dayrooms searched for contraband
and weapons, and the ESU was needed to help due to the numbers of inmates involved and the
need for tactical expertise. (Id.)
Douglas stated that after assessing the situation in the O-E unit, he decided to use a
pyrotechnic distraction device because of the overwhelming odds against the ESU staff. (Id.)
Douglas states he threw the device into an open area on the floor of the dayroom, and that the
ESU entered the area and cleared each cell of inmates. (Id., p. 2.) The use of the device allowed
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the officers to enter the unit with no resistance from the inmates. (Id.)
A good faith effort to maintain or restore discipline in a prison setting which was
assessed as a highly volatile and potentially dangerous situation, and the use of the device was
not intended to maliciously and sadistically cause harm. The evidence before the court reflects
that Douglas reasonably perceived a serious threat from the inmates given the size of the groups,
their demeanor, and the fact that they were armed with makeshift weapons. The wide-ranging
deference afforded to prison officials in adopting and executing policies and procedures
necessary to preserve internal order and discipline “extends to a prison security measure taken in
response to an actual confrontation with riotous inmates, just as it does to prophylactic or
preventive measures intended to reduce the incidence of these or any other breaches of prison
discipline.” Whitley v. Albers, 475 U.S. 312, 321–2 (1986).
Other than Plaintiff's allegations, there is no evidence that the Defendants maliciously
and sadistically fired the grenade to cause Threlkel harm. There is no evidence that Defendant
intended to single out any particular inmate at all; rather, the device was shot at the center of the
group of inmates. The Court concludes that a reasonable person in Douglas' situation would
have believed that his conduct conformed to the constitutional standard set forth above. See
Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000).
Whether Byrd or Broadus may be held liable under § 1983 depends on whether these
Defendants (1) affirmatively participated in acts that caused the constitutional deprivation, or (2)
implemented unconstitutional policies that causally resulted in Threlkel's injury. See Bd. of the
County Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Gates v. Tex. Dep't of Protective &
Regulatory Servs., 537 F.3d 404, 435 (5th Cir. 2008). Douglas stated that he determined that the
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use of the grenade was appropriate under the circumstances, and Threlkel presents no evidence
to refute this information or to establish that either Byrd or Broadus participated in the entry of
the dayroom or enacted policies which would result in constitutional deprivations. Accordingly,
the Court finds that the Defendants’ motion for summary judgment on Threlkel's excessive force
claim should be granted. See Black v. Warren, 134 F.3d 732, 733–4 (5th Cir. 1998).
II.
Deliberate Indifference to Serious Medical Need
“A prison official violates the Eighth Amendment's prohibition against cruel and unusual
punishment when his conduct demonstrates deliberate indifference to a prisoner's serious
medical needs, constituting an ‘unnecessary and wanton infliction of pain.’ ” Farmer, 511 U.S.
at 847; see also Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994). A prison official acts
with deliberate indifference “only if he knows that inmates face a substantial risk of serious
bodily harm and he disregards that risk by failing to take reasonable measures to abate it.” Easter
v. Powell, 467 F.3d 459, 463 (5th Cir. 2006). Unsuccessful medical or negligent medical
treatment and medical malpractice, if any, do not constitute deliberate indifference, nor does a
prisoner's disagreement with their medical treatment, absent exceptional circumstances. Gobert
v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Rather, a prison inmate can demonstrate an
Eighth Amendment violation by showing that “prison officials ‘refused to treat him, ignored his
complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would
clearly evince a wanton disregard for any serious medical needs.’ ” Sama v. Hannigan, 669 F.3d
585, 590 (5th Cir. 2012).
Threlkel contends that Broadus was the “jail supervisor” in charge when the assaults took
place, and he allegedly refused medical treatment to Threlkel and ignored requests for medical
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treatment. [8, p. 1.] The facts before the Court establish that a doctor’s appointment was set for
Threlkel, and that the nurse examined him shortly after the incident and following his complaints
about his ear, and no rupture was discovered at the time of the examination. Although Threlkel
was transferred to another facility before he could be seen by a doctor, this is not sufficient to
establish a viable section 1983 claim against these Defendants. Threlkel must produce evidence
that prison officials “refused to treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would clearly evince a wonton disregard for
any serious medical needs.” Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th
Cir. 2001). The evidence does not show that his complaints were ignored or disregarded.
Threlkel failed to establish: (I) deliberate indifference on the part of either of the
defendants; and (ii) any resulting substantial harm occasioned by the delay. Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir.1993). The Court concludes that the Defendants’ motion
for summary judgment on Threlkel’s claim of deliberate indifference to a serious medical need
brought pursuant to section 1983.
III.
State Law Claims
The Defendants, in their official capacity, argue that MISS. CODE ANN. § 11-46-9 (1972)
bars any recovery Threlkel may seek under Mississippi law. Under that act, a governmental
entity is not liable to any claimant who, at the time the claim arises, is an inmate of any detention
center, jail, workhouse, penal farm, penitentiary or other such institution regardless of whether
the claimant is or is not an inmate when the actual claim is filed. The Court agrees with the
Defendants and finds that any claims Threlkel raises under Mississippi State law against the
Defendants in their official capacity are barred by provisions of the Mississippi Tort Claims Act.
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IV.
Qualified Immunity
Based on the foregoing analysis, the Court finds that Threlkel’s Complaint fails to
establish that a policy or custom on the part of the JCADC was the moving force behind any
alleged constitutional violations. Furthermore, this Court finds that Threlkel’s allegations do
not indicate that he faced a substantial risk of serious harm to which Defendants responded with
deliberate indifference. Thus, there exists no basis for Threlkel’s claims against the Defendants
in their official capacities.
The Court will construe Threlkel’s Complaint as asserting claims against Defendants in
their individual capacities. However, because Defendants are law enforcement officials, they are
entitled to the defense of qualified immunity. See Gagne v. City of Galveston, 805 F.2d 558, 559
(5th Cir. 1986), cert denied 483 U.S. 1021 (1987). In assessing a claim of qualified immunity,
the determination must first be made as to whether the plaintiff has alleged a violation of a
clearly established constitutional right. Siegert v. Gilly, 500 U.S. 226, 231 (1991). If a violation
of a right has been alleged, then it must be determined whether the defendant’s conduct was
objectively reasonable. Even if the conduct violates a constitutional right, qualified immunity is
applicable if the conduct was objectively reasonable. Hare v. City of Corinth, Miss, 135 F.3d
320, 327 (5th Cir. 1998).
As discussed above, the Court finds that Threlkel has not alleged sufficient facts to create
a genuine issue as to whether he was subjected to excessive force at the hands of HCADC
employees. Therefore, the Court must determine whether Defendants’ conduct was objectively
reasonable in light of clearly established law at that time. Salas v. Carpenter, 980 F.2d 299, 3056 (5th Cir. 1992). Objective reasonableness analysis focuses on whether a reasonable person
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would have believed his conduct was constitutional in light of the information available to him
and the clearly established law. See Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001).
Under this standard, even officials who reasonably but mistakenly violate the Constitution are
entitled to immunity. Id.
Accordingly, the Court finds that the Defendants acted with objective reasonableness
under the circumstances the officers faced at the JCADC on the date in question. The Court,
therefore, concludes that Byrd and Broadus are entitled to qualified immunity in this case and
that the Defendants’ motion for summary judgment on any claims advanced against them in their
individual capacities should be granted.
CONCLUSION
Pursuant to the foregoing analysis, this Court finds that the Plaintiff has not presented
any facts that create a genuine issue of material fact with regard to the Defendants’ official or
individual liability for a violation of the Plaintiff’s constitutional or state law rights.
Accordingly, the Court finds that the Defendants’ Motion [33] for Summary Judgment should be
granted as to all of the Plaintiff’s claims and that all claims against all Defendants should be
dismissed with prejudice.
SO ORDERED, this the 7th day of August, 2012.
CHIEF UNITED STATES MAGISTRATE JUDGE
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