KELLY v. N.J. DEPT., OF CORRECTIONS et al
Filing
11
OPINION filed. Signed by Judge Peter G. Sheridan on 12/10/2012. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HAKIM KELLY,
Plaintiff,
v.
N.J. DEPT. OF CORRECTIONS,
et al.,
Defendants.
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Civil Action No. 11-7256 (PGS)
OPINION
APPEARANCES:
Plaintiff pro se
Hakim Kelly
12 Rutgers Street
Irvington, NJ 071111
SHERIDAN, District Judge
Plaintiff Hakim Kelly, a prisoner confined at Northern State
Prison in Newark, New Jersey, seeks to bring this action pursuant
to 42 U.S.C. § 1983, alleging violations of his constitutional
rights.
At this time, the Court must review the Complaint to
determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be
1
Although Plaintiff has advised the Court to use this
street address, he has contemporaneously stated that he remains
confined, and the New Jersey Department of Corrections Inmate
Locator reflects that Plaintiff remains confined at Northern
State Prison in Newark, New Jersey.
granted, or because it seeks monetary relief from a defendant who
is immune from such relief.
I.
BACKGROUND
The following factual allegations are taken from Plaintiff’s
Complaint.
Plaintiff alleges that on January 4, 2011, he was confined
at a halfway house known as “Harbor House.”
that he is a practicing Muslim.
Plaintiff alleges
On January 4, 2011, he was
instructed to submit to urine testing under the monitoring of a
counselor Defendant Mr. Beaman, who Plaintiff alleges is an
openly gay man.
Plaintiff alleges that he refused the test and
explained to the Director of Harbor House, Mr. Fielder, that it
would be a violation under the standards of his religion to
submit to monitoring by a gay man.
Plaintiff alleges that Mr.
Fielder agreed and then instructed him to submit to urine
monitoring under another counselor.
Plaintiff alleges that the next day he was returned to the
Central Reception and Assignment Facility because his urine test
was positive for controlled dangerous substances.
Plaintiff
asserts that it was later learned that somebody had tampered with
the urine specimen and that the test result was a false positive.
Accordingly, on January 20, 2011, it was determined that
Plaintiff would face no disciplinary charges and would be
2
returned to a halfway house or to the Bo Robinson Assessment
Center.
Plaintiff alleges that on February 22, 2011, during a final
assessment case conference, Defendant Ms. Stone, alleged to be an
employee of the Bo Robinson Assessment Center, stated that she
hates it when “you guys use your religion when it is convenient
for you.”
(Complaint, ¶ 17.)
Plaintiff alleges that after the
meeting he was placed on a “baseless and erroneous behavior
contract” because he practices Islam.
(Complaint, ¶ 17.)
Plaintiff alleges that at a second classification hearing
the next day, February 23, 2011, Defendant Ms. Klenke, an
assessment counselor at the Bo Robinson Assessment Center, stated
that Plaintiff better start programming, “or else.”
¶ 18.)
(Complaint,
Plaintiff alleges that he was already active in
programming.
Plaintiff also asserts that Defendant Mr. George
Robinson, an employee of the New Jersey Department of
Corrections, made “several intimidating and isolated threats”
toward the Plaintiff.
(Complaint, ¶ 18.)
Plaintiff alleges that
Mr. Robinson also told Plaintiff that, if he didn’t comply with
the orders of the facility, he would be sent back to prison and
his parole would be revoked until Mr. Robinson felt Plaintiff was
ready to be released.
Plaintiff alleges that on February 24, 2011, he filed
internal grievances against the aforementioned staff members, for
3
their attempts to derail his progression at the assessment center
and to hinder him from practicing Islam.
Plaintiff alleges that
on March 4, 2011, Defendant Deputy Director Ms. Newborn refused
to fax his grievance information to his attorney.
Plaintiff
alleges that, as a tactic to silence him for composing the
grievance, he was given a .257 disciplinary charge for “Violating
a Condition of any Community Release Program.”
Apparently as a
result of this disciplinary charge, he was returned to the
Central Reception and Assignment Facility (“CRAF”).
Plaintiff alleges that at CRAF he was placed under the watch
of an NJDOC employee, with respect to whom he has a “keep
separate” order.
Plaintiff alleges that this housing assignment
was “orchestrated solely by Mr. George Robinson, in retaliation
and intimidation” toward the Plaintiff.
(Complaint, ¶ 23.)
Plaintiff alleges that the defendants could never produce any
“legal, standing documents and/or proof” that he had broken the
conditions of his program contract.
Plaintiff asserts that the aforementioned facts amount to
violations of his First Amendment right to practice his religion,
his Eighth Amendment right to be free from cruel and unusual
punishment, and of his Fourteenth Amendment rights to due process
and equal protection.
In addition to the individuals described
above, Plaintiff names as defendants the New Jersey Department of
4
Corrections and the Community Education Center.2
Plaintiff seeks
monetary, declaratory, and injunctive relief.
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
This Court must dismiss, at the earliest practicable time,
certain in forma pauperis and prisoner actions that are
frivolous, malicious, fail to state a claim, or seek monetary
relief from a defendant who is immune from such relief.
See 28
U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.
§ 1915A (actions in which prisoner seeks redress from a
governmental defendant); 42 U.S.C. § 1997e (prisoner actions
brought with respect to prison conditions).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United
States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
The Court must
“accept as true all of the allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them
in the light most favorable to the plaintiff.”
Morse v. Lower
Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).
In addition, any complaint must comply with the pleading
requirements of the Federal Rules of Civil Procedure.
2
Plaintiff alleges that the Community Education Center is
the parent company that oversees the operation of facilities such
as Harbor House and the Bo Robinson Center.
5
Rule 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”
A complaint must plead facts sufficient at least to
“suggest” a basis for liability.
218, 236 n.12 (3d Cir. 2004).
Spruill v. Gillis, 372 F.3d
“Specific facts are not necessary;
the statement need only ‘give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
While a complaint ... does not need detailed factual
allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will
not do, see Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a
legal conclusion couched as a factual allegation”).
Factual allegations must be enough to raise a right to
relief above the speculative level ... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
The Court of Appeals for the Third Circuit has applied the
Twombly pleading standard to civil rights complaints.
Context matters in notice pleading. ... Put another
way, in light of Twombly, Rule 8(a)(2) requires a
“showing” rather than a blanket assertion of an
entitlement to relief. We caution that without some
factual allegation in the complaint, a claimant cannot
satisfy the requirement that he or she provide not only
“fair notice,” but also the “grounds” on which the
claim rests.
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008)
(citations omitted).
6
More recently, the Supreme Court has emphasized that, when
assessing the sufficiency of any civil complaint, a court must
distinguish factual contentions -- which allege behavior on the
part of the defendant that, if true, would satisfy one or more
elements of the claim asserted -- and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.
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. The plausibility standard
is not akin to a probability requirement, but it asks
for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that
are merely consistent with a defendant’s liability, it
stops short of the line between possibility and
plausibility of entitlement to relief.
Ashcroft, 556 U.S. at 678 (citations and quotation marks omitted)
(quoted in Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
Taking this guidance into account, the Court of Appeals
instructs that the analysis, to determine whether a complaint
meets the pleading standard, unfolds in three steps.
First, we outline the elements a plaintiff must plead
to state a claim for relief. Next, we peel away those
allegations that are no more than conclusions and thus
not entitled to the assumption of truth. Finally, we
look for well-pled factual allegations, assume their
veracity, and then “determine whether they plausibly
give rise to an entitlement to relief.” This last step
is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.”
7
Bistrian, 696 F.3d at 365 (citations omitted).
Where a complaint can be remedied by an amendment, a
district court may not dismiss the complaint with prejudice, but
must permit the amendment.
Denton v. Hernandez, 504 U.S. 25, 34
(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane
v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal
pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg
County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
III.
SECTION 1983 ACTIONS
A plaintiff may have a cause of action under 42 U.S.C.
§ 1983 for certain violations of his constitutional rights.
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... subjects, or causes to be subjected,
any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress ... .
Thus, to state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law.
West v. Atkins, 487 U.S. 42, 48
8
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994).
IV.
A.
ANALYSIS
Claims Against the New Jersey Department of Corrections
The Eleventh Amendment to the United States Constitution
provides that, “[t]he Judicial power of the United States shall
not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any
Foreign State.”
As a general proposition, a suit by private parties seeking
to impose a liability which must be paid from public funds in a
state treasury is barred from federal court by the Eleventh
Amendment, unless Eleventh Amendment immunity is waived by the
state itself or by federal statute.
Jordan, 415 U.S. 651, 663 (1974).
See, e.g., Edelman v.
Section 1983 does not override
a state’s Eleventh Amendment immunity.
Quern v. Jordan, 440 U.S.
332 (1979).
The Eleventh Amendment protects states and their agencies
and departments from suit in federal court regardless of the type
of relief sought.
Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89, 100 (1984).
In addition, neither states, nor governmental entities that
are considered arms of the state for Eleventh Amendment purposes
9
are persons within the meaning of § 1983.
Will v. Michigan Dept.
of State Police, 491 U.S. 58, 64, 70-71 and n.10 (1989); Grabow
v. Southern State Correctional Facility, 726 F.Supp. 537, 538-39
(D.N.J. 1989) (the New Jersey Department of Corrections is not a
person under § 1983).
For all the foregoing reasons, the claims against the New
Jersey Department of Corrections will be dismissed.
B.
Claims Against Community Education Center and Its Employees
The only allegation made against the Community Education
Center is that it is the “parent company” that oversees the
operation and structuring of community release programs such as
Bo Robinson and Harbor House.
government agency.
It is a private enterprise, not a
Allegations of wrongdoing are also made
against employees of certain Community Education Center
facilities, specifically, (a) Ms. Stone, Ms. Klenke, and Ms.
Newborn, employees of the Bo Robinson Assessment Center, and
(b) Mr. Beaman, an employee of Harbor House.
Private action is not converted into action “under color of
state law,” as required by § 1983, merely by “some tenuous
connection to state action.”
Groman v. Township of Manalapan, 47
F.3d 628, 638 (3d Cir. 1995).
Thus, the mere fact that a private
actor is performing a public contract at the time of the alleged
wrongdoing does not automatically mean that the private
contractor’s conduct is “state action.”
10
See Rendell-Baker v.
Kohn, 457 U.S. 830, 841 (1982).
Instead, a private actor may be
deemed to be acting “under color of state law” only when “the
conduct allegedly causing the deprivation of a federal right” is
“fairly attributable to the state.”
Lugar v. Edmondson Oil Co.,
Inc., 457 U.S. 922, 937 (1982).
A private entity’s conduct is “fairly attributable to the
state,” and it can be sued under § 1983 only where (1) it “has
exercised powers that are traditionally the exclusive prerogative
of the State,” Mark v. Borough of Hatboro, 51 F.3d 1137, 1141-42
(3d Cir.), cert. denied, 516 U.S. 858 (1995) (the “public
function” test); (2) the State and the private party act in
concert or jointly to deprive a plaintiff of his rights, Adickes
v. S.H. Kress & Co., 398 U.S. 144, 170-171 (1970); (3) the State
has permitted a private party to substitute his judgment for that
of the State, Cruz v. Donnelly, 727 F.2d 79, 81-82 (3d Cir.
1984); or (4) the private party and the State have a symbiotic
relationship as joint participants in the unconstitutional
activity, Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614,
620 (1991).
In addition, municipal corporations and supervisors are not
liable under § 1983 solely on a theory of respondeat superior.
See City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8
(1985); Monell v. New York City Department of Social Services,
436 U.S. 658, 690-91, 694 (1978) (municipal liability attaches
11
only “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”
complained of); Natale v. Camden County Correctional Facility,
318 F.3d 575, 583-84 (3d Cir. 2003).
“A defendant in a civil
rights action must have personal involvement in the alleged
wrongs, liability cannot be predicated solely on the operation of
respondeat superior.
Personal involvement can be shown through
allegations of personal direction or of actual knowledge and
acquiescence.”
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988) (citations omitted).
Accord Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir. 1997); Baker v.
Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
To establish municipal liability under § 1983, “a plaintiff
must show that an official who has the power to make policy is
responsible for either the affirmative proclamation of a policy
or acquiescence in a well-settled custom.”
Bielevicz v. Dubinon,
915 F.2d 845, 850 (3d Cir. 1990), quoted in Blanche Rd. Corp. v.
Bensalem Twp., 57 F.3d 253, 269 n.16 (3d Cir.), cert. denied, 516
U.S. 915 (1995), and quoted in Woodwind Estates, Ltd. v.
Gretkowski, 205 F.3d 118, 126 (3d Cir. 2000).
A plaintiff must
demonstrate that, through its deliberate conduct, the
municipality was the moving force behind the plaintiff’s injury.
Monell, 436 U.S. at 689.
12
A policy is made “when a decisionmaker possess[ing]
final authority to establish municipal policy with
respect to the action issues a final proclamation,
policy or edict.” Kneipp v. Tedder, 95 F.3d 1199, 1212
(3d Cir. 1996) (quoting Pembaur v. City of Cincinnati,
475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452
(1986) (plurality opinion)). A custom is an act “that
has not been formally approved by an appropriate
decisionmaker,” but that is “so widespread as to have
the force of law.” [Bd. of County Comm’rs of Bryan
County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997).]
There are three situations where acts of a
government employee may be deemed to be the result of a
policy or custom of the governmental entity for whom
the employee works, thereby rendering the entity liable
under § 1983. The first is where “the appropriate
officer or entity promulgates a generally applicable
statement of policy and the subsequent act complained
of is simply an implementation of that policy.” The
second occurs where “no rule has been announced as
policy but federal law has been violated by an act of
the policymaker itself.” Finally, a policy or custom
may also exist where “the policymaker has failed to act
affirmatively at all, [though] the need to take some
action to control the agents of the government ‘is so
obvious, and the inadequacy of existing practice so
likely to result in the violation of constitutional
rights, that the policymaker can reasonably be said to
have been deliberately indifferent to the need.’”
Natale, 318 F.3d at 584 (footnote and citations omitted).
The same standard applies to claims against a private
corporation that is functioning as a “state actor.”
See Weigher
v. Prison Health Services, 402 Fed.Appx. 668, 669-70, 2010 WL
4739701 (3d Cir. Nov. 23, 2010).
Here, Plaintiff has failed to allege facts that would permit
this Court to find that Community Education Centers, or its
13
employees, functioned as a state actor.3
Federal courts are
split on the question whether organizations that operate halfway
houses, and their employees, are state actors for purposes of
§ 1983.
Compare, e.g., Graves v. Narcotics Service Counsel,
Inc., 605 F.Supp. 1285 (1985) (insufficient nexus to find state
action, where halfway house provides drug detoxification
treatment as a condition of plaintiff’s probation); McWhirt v.
Putnam, Civil No. 06-4182, 2008 WL 695384 (W.D. Mo. March 12,
2008) (same, with respect to community agency which houses both
current and former inmates, parolees, and non-inmates); Phillips
v. Goord, Civil No. 08-0957, 2009 WL 909593 (W.D.N.Y. Apr. 1,
2009) (same, where no factual allegations regarding non-profit
halfway house providing services to a parolee); to Aladimi v.
Alvis House/Cope Center, Civil No. 10-0121, 2012 WL 726852 (S.D.
Ohio March 6, 2012) (operation of a halfway house that houses
prisoners for pre-release programming is “somewhat analogous” to
the operation of a prison, a “historically governmental
function”).
In this action, in any event, Plaintiff has failed
to allege any facts that would suggest that Community Education
Centers functioned as a state actor.
For example, Plaintiff does
not describe the nature of the contractual relationship, if any,
3
Its website reflects that Community Education Centers,
Inc., is a provider of re-entry treatment and education services
for adult correctional populations throughout the United States.
See http://www.cecintl.com/about_overview.html .
14
with the New Jersey Department of Corrections.
He does not
describe the nature of the services provided, or the nature of
the population to whom those services are provided.4
Moreover, Plaintiff has failed to allege any facts that
would suggest that Community Education Centers promulgated any
policy or practice that encouraged the conduct he challenges
here.
Accordingly, Plaintiff has failed to state a claim against
Community Education Centers.
As the allegations made by Plaintiff are insufficient to
establish that Community Education Center functioned as a “state
actor,” they similarly are insufficient to establish that
counselors employed by Community Education Centers or its
facilities functioned as state actors.
Accordingly, all claims
against Defendants Stone, Klenke, Newborn, and Beaman will be
dismissed.
C.
Retaliation Claim Against George Robinson
Plaintiff alleges that Defendant George Robinson, who
allegedly sits on the Classification Board at the Central
Reception and Assignment Facility, told Plaintiff (prior to his
return to the halfway house) that if he didn’t comply with the
4
As Plaintiff alleges that he was warned that violation of
the rules of the halfway house would result in revocation of his
parole, it appears that he was assigned to the halfway house as a
condition of parole, not as a pre-release prisoner; thus, based
upon the allegations of the Complaint, the halfway house does not
appear to have been functioning as a correctional facility.
15
orders of the halfway house his parole would be revoked and he
would be returned to prison.5
Plaintiff further alleges that
when he was returned to prison from the halfway house, George
Robinson assigned him to a housing assignment under a particular
correctional officer, with respect to whom he had a “keep
separate” order, “in retaliation and intimidation toward the
plaintiff.”
(Complaint, ¶¶ 19, 23.)
In retaliation for what,
specifically, Plaintiff does not state.
“Retaliation for the exercise of constitutionally protected
rights is itself a violation of rights secured by the
Constitution ... .”
Cir. 1990).
White v. Napoleon, 897 F.2d 103, 111-12 (3d
To prevail on a retaliation claim, a plaintiff must
demonstrate that (1) he engaged in constitutionally-protected
activity; (2) he suffered, at the hands of a state actor, adverse
action “sufficient to deter a person of ordinary firmness from
exercising his [constitutional] rights;” and (3) the protected
activity was a substantial or motivating factor in the state
actor’s decision to take adverse action.
Rauser v. Horn, 2001 WL
185120 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225).
See also
Anderson v. Davila, 125 F.3d 148, 160 (3d Cir. 1997) (citing Mt.
5
In light of this allegation, as noted above, the Court
understands Plaintiff to be asserting that he was assigned to a
halfway house as a condition of parole. Certainly, it is not a
violation of any constitutional right for a prison official to
advise a parolee that his parole will be revoked if he violates a
condition of parole.
16
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977)); Thaddeus-X v. Blatter, 175 F.3d 378, 386-99 (6th Cir.
1999), cited with approval in Allah, 229 F.3d at 225.
To the
extent Plaintiff asserts that Defendant Robinson acted “in
retaliation” for Plaintiff’s violation of parole and return to
prison, Plaintiff has failed to assert that he had engaged in any
constitutionally-protected activity.
To the extent Plaintiff
seeks to base the claim of retaliation on any other purported
protected activity, the allegations of the Complaint are too
vague and conclusory to raise his right to relief “above the
speculative level.”
Finally, in the absence of any factual
allegations regarding Defendant Robinson’s knowledge of the
purported constitutionally-protected activity, Plaintiff has
failed to allege facts demonstrating that the protected activity
was a substantial or motivating factor in the housing assignment.
Accordingly, Plaintiff has failed to state a claim for
retaliation against Defendant Robinson.
V.
CONCLUSION
For the reasons set forth above, the claims against the New
Jersey Department of Corrections will be dismissed with
prejudice.
All remaining claims will be dismissed without
prejudice, pursuant to 28 U.S.C. § 1915A(b)(1) and 42 U.S.C.
§ 1997e(c)(1), for failure to state a claim.
However, because it
is conceivable that Plaintiff may be able to supplement his
17
pleading with facts sufficient to overcome the deficiencies noted
herein with respect to those claims dismissed without prejudice,
the Court will grant Plaintiff leave to file an application to
re-open accompanied by a proposed amended complaint.6
An appropriate order follows.
s/Peter G. Sheridan
Peter G. Sheridan
United States District Judge
Dated: December 10, 2012
6
Plaintiff should note that when an amended complaint is
filed, the original complaint no longer performs any function in
the case and “cannot be utilized to cure defects in the amended
[complaint], unless the relevant portion is specifically
incorporated in the new [complaint].” 6 Wright, Miller & Kane,
Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes
omitted). An amended complaint may adopt some or all of the
allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
explicit. Id. To avoid confusion, the safer course is to file
an amended complaint that is complete in itself. Id.
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