Jackson v. Williams et al
Filing
59
MEMORANDUM-DECISION AND ORDERED, that Defendants Motion for Summary Judgment (Dkt. No. 52) is GRANTED; and it is further ORDERED, that Plaintiffs attorney, Michael P. Kushner, show cause in writing within twenty days of the date of this Memorandum-Decision and Order as to why he has not violated Local Rule 7.1(b)(3) and should not be sanctioned for any violation of that Rule. Signed by Senior Judge Lawrence E. Kahn on February 26, 2020. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ERIC JACKSON,
Plaintiff,
-against-
8:16-CV-1137 (LEK/CFH)
MARK WILLIAMS, et al.,
Defendants.
MEMORANDUM-DECISION AND ORDER
I.
INTRODUCTION
Plaintiff Eric Jackson brought this action under 42 U.S.C. § 1983 and New York State
law against several employees of the Utica Police Department: Chief of Police Mark Williams,
Officer Donald Cinque, Officer Joseph Amerosa, and Officer Paul Paladino. Dkt. No. 1
(“Complaint”). Plaintiff’s claims arise out of an incident involving the execution of a search
warrant on May 21, 2015 at the home of Plaintiff’s aunt (where Plaintiff was staying at the time).
Id. The only defendants remaining in the case, Amerosa and Paladino (collectively,
“Defendants”), have moved for summary judgment on the two claims that remain in this action:
(1) Fourth Amendment claim against Amerosa for unlawfully seizing a dog, King, when
Amerosa killed King during the May 21, 2015 police raid; and (2) Fourth Amendment claims
against Defendants for using excessive force on Plaintiff during the raid. Dkt. Nos. 52 (“Motion
for Summary Judgment”); 52-18 (“Defendants’ Statement of Material Facts”); 52-19
(“Defendants’ Memorandum”); 56 (“Defendants’ Reply”). Plaintiff has failed to oppose the
Motion for Summary Judgment. Docket.
For the reasons that follow, Defendants’ Motion for Summary Judgment is granted and
Plaintiff’s attorney, Michael P. Kushner, is ordered to show cause why he did not notify the
Court and Defendants of Plaintiff’s intention to not oppose Defendants’ Motion for Summary
Judgment.
II.
BACKGROUND
The facts and allegations in this case were detailed in an Order and Report-
Recommendation filed on November 16, 2016 by the Honorable Christian F. Hummel, United
States Magistrate Judge, familiarity with which is assumed. Dkt. No. 8 (“ReportRecommendation” and “Order”). Below the Court describes the facts relevant to the instant
motion.
On May 21, 2015, several officers of the Utica Police Department executed a no-knock
search warrant at the home of Plaintiff’s aunt as part of a drug investigation. Mot. for Summ. J.,
Ex. 13 (“Incident Report”) at 20. Prior to entering the home, the officers knew they might
encounter a pit-bull named, King. Incident Report at 14. King was known by one resident of the
home, Nathaniel Jackson, to be “a guard dog” and so used by his guardians to “bite,” “attack,”
and “protect.” Mot. for Summ. J., Ex. 3 (“Nathaniel Jackson 2019 Deposition”) at 39; see also
Mot. for Summ. J., Ex. 6 (“Amerosa Deposition”) at 1 (noting King “was known to have bitten
people in the past”). Upon entering the house, the officers found King, Plaintiff, and Nathaniel
Jackson. Incident Report at 21–22. Paladino noted that King was “a large and aggressive canine.”
Mot. for Summ. J., Ex. 4 (“Paladino Deposition”) at 1. King also “snapped its teeth” at Paladino,
id. at 2, and “growl[ed]” at Amerosa, Mot. for Summ. J., Ex. 5 (“Nathaniel Jackson 2015
Deposition”) at 1. As the raid proceeded, the officers commanded Plaintiff to lay face down on
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the floor of the home, and Plaintiff obeyed. Amerosa Dep. at 1. Once Plaintiff was lying on the
ground, Paladino pressed his feet into Plaintiff’s neck and stated, “Don’t move or I’ll blow your
f***ing head off.” Compl. at 6.1 At this point King became agitated and began to cry. Id. The dog
then positioned himself on top of Plaintiff. Amerosa Dep. at 1. Amerosa attempted to stop King
from further interfering with the officers’ efforts to secure Plaintiff by “back[ing] [the dog] up
against a wall.” Id. However, this caused Amerosa to “fe[el] threatened” since King had “no
where [sic] to go.” Id. Amerosa asked Paladino whether he should shoot the dog. Compl. at 6.
King then “leap[t] in the air” at Amerosa, which prompted Amerosa to shoot and kill the dog.
Nathaniel Jackson 2015 Dep. at 1. One of Amerosa’s bullets passed through one of King’s legs
and ricocheted off the floor into Plaintiff’s foot. Mot. for Summ. J., Ex. 11 (“Krivosta Expert
Report”) at 11.
III.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if
all the submissions taken together “show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
The moving party bears the initial burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the outcome of
the suit under the governing law” and is genuinely in dispute “if the evidence is such that a
1
“A verified complaint,” like the Complaint in this case, “is to be treated as an affidavit
for summary judgment purposes, and therefore will be considered in determining whether
material issues of fact exist . . . .” See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (citing
Fed. R. Civ. P. 56(e)).
3
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see
also Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (noting summary
judgment is appropriate where the non-moving party fails to “come forth with evidence sufficient
to permit a reasonable juror to return a verdict in his or her favor on an essential element of a
claim” (internal quotation marks omitted)). If the moving party meets this burden, the nonmoving
party must “set forth specific facts showing a genuine issue for trial.” Anderson, 477 U.S. at 250;
see also Celotex, 477 U.S. at 323–24.
As noted by another court in this district:
What this burden-shifting standard means when a plaintiff has failed
to respond to a defendant’s motion for summary judgment is that the
fact that there has been no such response does not by itself mean that
the motion is to be granted automatically. Rather, practically
speaking, the Court must (1) determine what material facts, if any, are
disputed in the record presented on the defendants’ motion, and (2)
assure itself that, based on the undisputed material facts, the law
indeed warrants judgment for the defendants. However, the plaintiff’s
failure to respond to the defendant’s motion for summary judgment
lightens the burden on the motion to one that is merely modest.
More specifically, where a plaintiff has failed to properly respond to
a defendant’s statement of material facts, contained in its Statement
of Material Facts (a/k/a its “Rule 7.1 Statement”), the facts as set
forth in that Rule 7.1 Statement will be accepted as true to the extent
that those facts are supported by the evidence in the record. Similarly,
where a plaintiff has failed to respond to a defendant’s properly filed
and facially meritorious memorandum of law (submitted in support
of its motion for summary judgment), the plaintiff is deemed to have
consented to the legal arguments contained in that memorandum of
law under Local Rule 7.1(b)(3) of the Local Rules of Practice for this
Court. Stated another way, where a defendant has properly filed a
memorandum of law (in support of a properly filed motion for
summary judgment), and the plaintiff has failed to respond to that
memorandum of law, the only remaining issue is whether the legal
arguments advanced in the defendant’s memorandum of law are
facially meritorious.
4
Finally, implied in the above-stated burden-shifting standard is the
fact that, where a nonmovant fails to respond to a motion for
summary judgment, a district court has no duty to perform an
independent review of the record to find proof of a factual dispute.
White v. Verizon Commc’ns, Inc., No. 06-CV-1536, 2008 WL 5382329, at *3 (N.D.N.Y. Dec.
17, 2008) (citations, internal quotation marks, and alterations omitted).
IV.
DISCUSSION
The Court has reviewed Defendants’ Statement of Material Facts and finds those facts
supported by the evidence in the record. The Court has also reviewed Defendants’ Memorandum
and concludes the legal arguments included within are facially meritorious. Therefore, as
elaborated below, the Court grants summary judgment in favor of Defendants.
A. Claims Under 42 U.S.C. § 1983
“42 U.S.C. § 1983 provides a civil claim for damages against any person who, acting
under color of state law, deprives another of the right, privilege or immunity secured by the
Constitution or the laws of the United States.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.
1999). Section 1983 does not create any substantive rights; it provides civil litigants a procedure
to redress the deprivation of rights established elsewhere. Id. (citing City of Oklahoma City v.
Tuttle, 471 U.S. 808 (1985)). “To prevail on a § 1983 claim, a plaintiff must establish that a
person acting under the color of state law deprived him of a federal right.” Id.
1. Unlawful Seizure of King
Amerosa argues that it was not unreasonable for the purposes of the Fourth Amendment
for him to kill King. Defs.’ Mem. at 3–8. The Court agrees.
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The Fourth Amendment provides a “right of the people to be secure in their persons
. . . against unreasonable . . . seizures.” U.S. Const. amend. IV. For Plaintiff to succeed on his
claim, he “bears the burden of proving that [the] seizure—the killing of a companion
animal—was unreasonable under the circumstances.” Sanders v. City of Rochester, New York,
360 F. Supp. 3d 152, 166 (W.D.N.Y. 2019) (citing Carroll v. Cty. of Monroe, 712 F.3d 649, 651
(2d Cir. 2013)). As another court in this circuit has observed:
The Fourth Amendment’s reasonableness inquiry requires a balancing
of the nature and quality of the intrusion on the plaintiff’s Fourth
Amendment rights against the countervailing government interest at
stake. [Graham v. Connor, 490 U.S. 386, 396 (1989)]. As Graham
elaborates, the reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight. “The calculus of
reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about
the amount of force that is necessary in a particular situation.” Id. at
395 [].
The government retains a strong interest in allowing law enforcement
officers to protect themselves and the citizenry from animal attacks.
[Altman v. City of High Point, N.C., 330 F.3d 194, 205 (4th Cir.
2003)]. Thus, courts have generally held that no unreasonable seizure
may be found where an officer has killed a dog that posed an
imminent threat. See Altman, 330 F.3d at 206 (officers reasonably
shot and killed dogs that posed danger, including Rottweiller known
to have previously attacked individuals in neighborhood, aggressive
pack of dogs that attacked an officer, and Pitbull mix that displayed
aggressive behavior toward a meter reader); [Hatch v. Grosinger, No.
01-CV-1906, 2003 WL 1610778, at *5 (D. Minn. Mar. 3, 2003)] (no
unreasonable seizure where dog had exhibited threatening behavior).
Similarly, in Warboys v. Officer Proulx, this Court held that “[a]n
officer who encounters a 90– to 100–pound pit bull dog—a dog
which is demonstrably not able to be restrained by its owner or
guardian and which is approaching the officer at a rate of 6 feet per
second and is at a distance of no more than ten feet—does not act
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unreasonably in shooting the dog to protect himself and his canine
companion.” 303 F. Supp. 2d 111, 118 (D. Conn. 2004).
Dziekan v. Gaynor, 376 F. Supp. 2d 267, 270–71 (D. Conn. 2005).
As an initial matter, the Court recognizes the importance of properly training police
officers on how to handle canines that they encounter while on duty. See National Sheriffs’
Association, Law Enforcement Dog Encounters Training (LEDET),
https://www.sheriffs.org/ledet. However, regardless of the training Amerosa may have received
from the Utica Police Department,2 there is no genuine dispute over whether Amerosa’s killing
of King “was reasonable in light of the imminent danger posed by the canine.” See id. at 271.
King “growl[ed]” at Amerosa at the start of the raid. Nathaniel Jackson 2015 Dep. at 1. As the
raid continued, Amerosa attempted to stop King from further interfering with the officers’ efforts
to secure Plaintiff by “back[ing] [the dog] up against a wall.” However, this caused Amerosa to
“fe[el] threatened” since King had “no where [sic] to go.” Amerosa Dep. at 1. King then “leap[t]
in the air” at Amerosa, which prompted Amerosa to shoot and kill the dog. Nathaniel Jackson
2015 Dep. at 1. In sum, Amerosa acted reasonably when he killed King since Amerosa was
compelled with no time to spare to prevent an animal from attacking him. See Cabisca v. City of
Rochester, No. 14-CV-6485, 2019 WL 5691897, at *11 (W.D.N.Y. Nov. 4, 2019) (“[I]t was
reasonable for Officer Wengert to believe that a large unrestrained dog, barking and quickly
approaching him at night by ascending stairs leading onto a small porch that provided no way to
retreat safely, presented a threat to his safety. Accordingly, it was unfortunate, but not
2
Plaintiff did initially plead Williams and the Utica Police Department improperly
trained Amerosa and other officers on how to handle dogs they encounter while on the job. See
Compl. at 9–10. The Court, however, dismissed those claims without prejudice, Dkt. No. 11
(“2017 Decision and Order”) at 9–10, and Plaintiff never repled the claims.
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unreasonable for Wengert to draw his weapon and shoot Bailey.” (internal citation omitted.));
Bailey v. Schmidt, 239 F. App’x 306, 308 (8th Cir. 2007) (affirming summary judgment on a
plaintiff’s claim for unlawful seizure of his pet when there was “uncontested evidence that all of
the dogs either advanced on or acted aggressively toward the officers”); Esterson v. Broward Cty.
Sheriff’s Dep’t, No. 09-CV-60280, 2010 WL 4614725, at *4 (S.D. Fla. Nov. 4, 2010) (shooting
of dog not unreasonable where dog “charged” at officer and officer “was unable to retreat”);
Hatch , 2003 WL 1610778, at *5 (“Here, the undisputed facts indicate that the dog, without
restraint or owners in sight, made an aggressive charge . . . . While one could question Deputy
Grosinger’s choice to use the maximum level of force several seconds after [the dog] appeared,
‘the Fourth Amendment does not allow this type of ‘Monday morning quarterback’ approach
because it only requires that the seizure fall within a range of objective reasonableness.’”).
Because Amerosa acted reasonably, Plaintiff’s claim against Amerosa for unlawfully seizing
King is dismissed.3
2. Excessive Force Against Plaintiff
Plaintiff claims that Defendants utilized excessive force against him when Paladino
placed his feet on Plaintiff’s neck and when Amerosa shot Plaintiff in the process of repelling
King. Compl. at 6–7.
As an initial matter, Defendants argue that they did not violate Plaintiff’s substantive due
process rights under the Fourteenth Amendment and do not address whether their actions against
Plaintiff violated his Fourth Amendment rights. Defs.’ Mem. at 8–13. The Court reminds
3
The Court need not reach Amerosa’s alternative arguments for dismissal, namely that
Plaintiff does not possess standing under the Fourth Amendment to pursue his claim or that
Amerosa is entitled to qualified immunity. Defs.’ Mem. at 2–3, 14–19.
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Defendants that the Court has construed Plaintiff’s excessive force claim as one “most properly
[] brought [under the] Fourth Amendment.” Jackson, 2016 WL 11265990, at *8; see also Corbitt
v. Vickers, 929 F.3d 1304, 1314 n.11 (11th Cir. 2019) (citing Graham, 490 U.S. at 388)
(concluding that the Fourth Amendment, not the Fourteenth Amendment, applied to a claim of
excessive force in which police officer accidentally shot the plaintiff instead of a dog since the
plaintiff “was already seized—thus implicating the Fourth Amendment—when [the officer] shot
at the dog”). Therefore, Defendants briefed the wrong claims. Nevertheless, the Court finds there
is no genuine dispute over whether Defendants used excessive force on Plaintiff.
The Supreme Court has held that “all claims that law enforcement officers have used
excessive force—deadly or not—in the course of an arrest, investigatory stop or other ‘seizure’ of
a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard.” Graham, 490 U.S. at 395 (1989) (emphasis in original). An excessive force claim “is
subject to an objective test of reasonableness under the totality of the circumstances, which
requires consideration of the specific facts in each case, including the severity of the crime at
issue, whether the suspect posed an immediate threat to the safety of others and whether he is
actively resisting arrest.” Sullivan v. Gagnier, 225 F.3d 161, 165 (2d. Cir. 2000) (citing Graham,
490 U.S. at 395–396). Furthermore, “the forced used by the law enforcement officer must
generally be more than de minimis for a claim to be actionable. De minimis injury can serve as
conclusive evidence that de minimis force was used.” Humbach v. Canon, No. 13-CV-2512,
2019 WL 1369464, at *7 (S.D.N.Y. Mar. 25, 2019) (citations omitted). “Accordingly, ‘numerous
courts have held that where plaintiff’s injuries are de minimis, the claim of excessive force
cannot rise to the level of a constitutional violation as a matter of law.’” Morales v. City of New
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York, No. 13-CV-7667, 2016 WL 4718189, at *4 (S.D.N.Y. Sept. 7, 2016) (quoting
Cunningham v. New York City, No. 04-CV-10232, 2007 WL 2743580, at *6 (S.D.N.Y. Sept. 18,
2007) (collecting cases)).
Plaintiff provides no evidence regarding any injuries he may have received when
Paladino placed his feet on Plaintiff’s neck. Consequently, the Court finds that Plaintiff only
suffered de minimis injury, “defeating his claim as a matter of law.” Scott v. City of New York,
No. 16-CV-834, 2020 WL 208915, at *8 (E.D.N.Y. Jan. 14, 2020) (citing Greene v. City of New
York, No. 15-CV-6436, 2019 WL 3606739, at *12–13 (E.D.N.Y. Aug. 6, 2019); Romano v.
Howarth, 998 F.2d 101, 105 (2d Cir. 1993)) (granting summary judgment on the plaintiff’s
excessive force claim since the plaintiff only suffered de minimis injury when an officer threw
the plaintiff to the floor, handcuffed the plaintiff, placed his foot on the plaintiff’s neck, and then
pointed a taser at the plaintiff while saying, “[Y]ou see this right here motherfucker? This is for
you.”). Accordingly, the Court dismisses Plaintiff’s excessive force claim against Paladino.
Moreover, the Court finds Amerosa is entitled to qualified immunity on Plaintiff’s claim
stemming from Plaintiff’s bullet wound to the foot. As the Second Circuit has observed:
Qualified immunity shields government officials from civil damages
liability unless the official violated a statutory or constitutional right
that was clearly established at the time of the challenged conduct. To
be clearly established, a right must be sufficiently clear that every
reasonable official would have understood that what he is doing
violates that right. Controlling authority serves to put officials on
notice of what is unlawful; however, existing precedent must have
placed the statutory or constitutional question beyond debate.
Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017) (internal citations, quotation
marks, and alteration omitted).
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The qualified immunity inquiry proceeds in two parts: first, whether a statutory or
constitutional right was violated when the evidence is “viewed in the light most favorable to the
plaintiff,” and, second, whether that statutory or constitutional right “was clearly established at
the time of the alleged violation.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). 4 A
constitutional right is “clearly established” when “the contours of the right [are] sufficiently clear
that a reasonable official would understand that what he is doing violates that right.” Mollica v.
Volker, 229 F.3d 366, 370 (2d Cir. 2000) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). The Second Circuit has found three factors relevant to this inquiry: (1) the right in
question should be defined with “reasonable specificity,” (2) Supreme Court and Second Circuit
decisions support the existence of the right in question, and (3) a reasonable defendant would
understand that their conduct is unlawful under existing law. Id. at 371 (quoting Shechter v.
Comptroller of the City of New York, 79 F.3d 265, 271 (2d Cir. 1996)).
Here, the question is whether the Fourth Amendment is violated when an officer shoots at
a target and accidentally hits another person. Second Circuit and Supreme Court precedent
suggest there is no such violation. See Medeiros v. O’Connell, 150 F.3d 164, 167–69 (finding no
Fourth Amendment violation when an officer’s bullet accidentally hit the hostage instead of the
hostage’s captor); see also Dodd v. City of Norwich, 827 F.2d 1, 7 (2d Cir. 1987) (“It makes little
sense to apply a standard of reasonableness to an accident.”); Brower v. Cty. of Inyo, 489 U.S.
593, 596 (1989) (“[T]he Fourth Amendment addresses misuse of power, not the accidental
effects of otherwise lawful government conduct.” (internal citation and quotation marks
4
District courts have discretion to consider either element of the qualified immunity
claim first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
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omitted)). Hence, since there was no right clearly established at the time of the alleged use of
excessive force against Plaintiff, Amerosa is entitled to qualified immunity. And because
Amerosa is entitled to qualified immunity, the Court must dismiss Plaintiff’s claim against him
for excessive force.
B. Plaintiff’s Failure to Respond to the Motion for Summary Judgment
As noted above, Plaintiff failed to respond to Defendants’ Motion for Summary
Judgment.
According to Local Rule 7.1(b)(3):
Any party who does not intend to oppose a motion, or a movant who
does not intend to pursue a motion, shall promptly notify the Court
and the other parties of such intention. They should provide such
notice at the earliest practicable date, but in any event no less than
FOURTEEN DAYS prior to the scheduled return date of the motion,
except for good cause shown. Failure to comply with this Rule may
result in the Court imposing sanctions, and may be deemed
sufficient cause for the denial of a motion or the granting of a
motion by default.
L.R. 7.1(b)(3) (emphasis in original).
On June 27, 2019, Defendants filed their Motion for Summary Judgment. Docket. The
Docket clearly indicates that a response was due on July 16, 2019. Id. Yet Plaintiff neither
responded to the Motion for Summary Judgment nor notified the Court or Defendants of his
intention to not oppose it. Thus, Plaintiff’s attorney, Michael P. Kushner, is ordered to show
cause on “why he has not violated Local Rule 7.1(b)(3) and why he should not be sanctioned for
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a violation thereof.” See Shorette v. Harrington, No. 04-CV-538, 2005 WL 8171293, at *4
(N.D.N.Y. Nov. 16, 2005), aff’d, 234 F. App’x 3 (2d Cir. 2007).5
V.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion for Summary Judgment (Dkt. No. 52) is
GRANTED; and it is further
ORDERED, that Plaintiff’s attorney, Michael P. Kushner, show cause in writing within
twenty days of the date of this Memorandum-Decision and Order as to why he has not violated
Local Rule 7.1(b)(3) and should not be sanctioned for any violation of that Rule; and it is further
ORDERED, that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:
February 26, 2020
Albany, New York
5
The Court acknowledges this is not the first instance in which Plaintiff may have been
potentially harmed by his attorney’s actions. On January 26, 2018, Magistrate Judge Hummel
ordered that Plaintiff’s amended complaint be stricken from the docket because counsel had
missed the deadline to file an amended complaint by over four months. Dkt. No. 25.
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