Curry v. Kim et al
OPINION & ORDER re: 29 MOTION. filed by Jerome Curry, 24 MOTION to Dismiss Amended Complaint filed by Kyoung S. Kim. For the foregoing reasons, the motion to dismiss is GRANTED with prejudice as to Defendants Kim and Simpson. Although "[d]istrict courts should frequently provide leave to amend before dismissing a pro se complaint," it is "not necessary when it would be futile." Reed v. Friedman Mgmt. Corp., 541 F. App'x 40, 41 (2d Cir. 2013) (c iting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). This action is dismissed with prejudice to the extent outlined above. Here, having already amended his complaint once, any further amendment would be futile. Accordingly, and although Pla intiff has not sought permission to do so, leave to file a Second Amended Complaint is denied. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Opinion and Order would not be taken in good faith, and therefore in form a pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of the Court is respectf ully directed to terminate the motion pending at Docs. 24 and 29, close this case, and mail a copy of this Opinion and Order to Plaintiff. SO ORDERED. (Signed by Judge Philip M. Halpern on 11/14/2023) (vfr) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION & ORDER
KYOUNG S. KIM and A. SIMPSON,
PHILIP M. HALPERN, United States District Judge:
Jerome Curry (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action
under 42 U.S.C. § 1983 against Clinical Physician Kyoung S. Kim (“Kim”) and Registered Nurse
A. Simpson (“Simpson” and together, “Defendants”) for violating his constitutional rights while
he was incarcerated at Green Haven Correctional Facility (“Green Haven”) in Stormville, New
York. (See generally Doc. 8, “FAC”). Specifically, Plaintiff alleges that Defendants violated his
Eighth Amendment rights by delaying the ordering of an x-ray on his finger for approximately 30
days. (See generally, id.).
On July 11, 2022, Chief Judge Laura Taylor Swain—before whom this case proceeded
prior to being assigned to this Court—granted Plaintiff leave to file an amended complaint within
sixty days of her Order, and denied Plaintiff’s application for the Court to request pro bono counsel.
(Doc. 7, “Order to Amend”). 1 Plaintiff timely filed his amended complaint on September 7, 2022.
(See FAC). The action was assigned to me on September 8, 2022, and an order of service was
issued thereafter. (Doc. 10).
The Order to Amend is available on commercial databases. See Curry v. Kim, No. 22-CV-04127, 2022
WL 2702744, at *1 (S.D.N.Y. July 11, 2022). For ease of reference, the Court cites herein the copy of the
Order to Amend filed on the docket.
Pending before the Court is Kim’s motion to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). 2 (Doc. 24). Pursuant to the briefing schedule set by the Court,
Kim filed his memorandum of law in support of the motion to dismiss on March 14, 2023 (Doc.
25, “Mot.”). Plaintiff timely opposed the motion on May 24, 2023, in accordance with the
extension of time granted by the Court. (Doc. 29; Doc. 30, “Opp.”). 3 After receiving an extension
of time from the Court, Kim timely filed his reply on June 23, 2023. (Doc. 35, “Reply”). 4
For the reasons set forth below, the motion to dismiss is GRANTED.
Plaintiff alleges that he was attacked with a cane by another inmate while incarcerated at
Green Haven on or about May 24, 2019. (FAC ¶ 8). That same day, Plaintiff was physically
examined by Simpson at the facility’s clinic. (Id. ¶ 10). Simpson prepared an Inmate Injury Report
which “reported that plaintiff suffered a 5 centimeter lump to the left forehead near the eye, with
an open area of 3 centimeter superficial scrape to the left forearm, with a swollen right thumb and
right pointer finger.” (Id.). Despite the report noting swelling of Plaintiff’s right thumb and right
pointer finger and Plaintiff stating that he believed his right pointer finger to be broken, and that
he was in pain and could not bend it, neither Simpson nor Kim ordered x-rays to be taken of
Plaintiff’s fingers. (Id. ¶¶ 11, 15). X-rays were ordered of the left side of Plaintiff’s head and face.
Simpson was named in Plaintiff’s FAC but has not been served with process in this case (Doc. 13), and
did not, therefore, join Kim’s motion to dismiss. Nevertheless, Kim asserts that “[t]he reasoning in this
motion applies equally to Nurse Simpson.” (Mot. at 2). Accordingly, the Court considers the motion in the
context of both Defendants.
Plaintiff’s opposition is titled as “Motion for An Order Granting Plaintiff’s Amended Complaint.” (Doc.
29). The Court will, however, construe Plaintiff’s motion and its accompanying memorandum of law as his
opposition to the pending motion to dismiss.
Citations to the parties’ filings correspond to the pagination generated by ECF.
Plaintiff alleges that due to Defendants’ failure to order x-rays of his right pointer finger, a
severe infection developed. (Id. ¶ 12). Plaintiff underwent a surgical procedure on May 31, 2019,
which drained accumulated fluids from his right pointer finger. (Id.). Plaintiff maintains that this
procedure was “due to the severe infection and substantial swelling” in his right pointer finger.
After writing eight letters to Simpson and Kim and several visits to sick call, x-rays were
taken of Plaintiff’s right pointer finger “nearly a month after the injury.” (Id. ¶ 13). Plaintiff
clarifies in opposition that the x-rays were taken of his finger on June 17, 2019—totaling 24 days
after the injury. (Opp. at 3). The x-rays showed that Plaintiff’s right pointer finger was fractured.
(FAC ¶ 13). Plaintiff maintains that these x-rays “explained why plaintiff developed such an
aggressive and painful infection.” (Id.).
Plaintiff argues that Defendants failed to provide adequate medical treatment by ignoring
his obvious injuries and complaints about his finger. (Id. ¶ 14). Defendants “delayed the provision
of treatment which could have prevented severe infection, swelling, and a surgical procedure
performed without anesthesia.” (Id.). The fracture and infection in Plaintiff’s finger “caused [him]
difficulties to brush his teeth, write letters, get dressed, and the performance of other necessary
activities.” (Id. ¶ 17). Plaintiff also alleges that he suffered permanent numbness. (Id.). Plaintiff
seeks money damages in an amount no less than $550,000. (Id. ¶ 18).
STANDARD OF REVIEW
Rule 12(b)(1) Standard
“Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of
an action when the district court lacks the statutory or constitutional power to adjudicate it.”
Schwartz v. Hitrons Sols., Inc., 397 F. Supp. 3d 357, 364 (S.D.N.Y. 2019). 5 “Where, as here, the
defendant moves for dismissal under Rule 12(b)(1), as well as on other grounds, the court should
consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject
matter jurisdiction, the accompanying defenses and objections become moot and do not need to be
determined.” Saint-Amour v. Richmond Org., Inc., 388 F. Supp. 3d 277, 286 (S.D.N.Y. 2019)
(quoting United States v. New York City Dep’t of Hous., Pres. & Dev., No. 09-CV-06547, 2012
WL 4017338, at *3 (S.D.N.Y. Sept. 10, 2012)).
Rule 12(b)(6) Standard
On a Rule 12(b)(6) motion, a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the ple[d] factual
content allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant acted
unlawfully.” Id. The factual allegations pled “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
“When there are well-ple[d] factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
Thus, the Court must “consider the legal sufficiency of the complaint, taking its factual allegations
Unless otherwise indicated, case quotations omit all internal citations, quotation marks, footnotes, and
to be true and drawing all reasonable inferences in the plaintiff's favor.” Harris v. Mills, 572 F.3d
66, 71 (2d Cir. 2009). The presumption of truth, however, “is inapplicable to legal conclusions,
and threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 72. A plaintiff must provide “more than labels and conclusions”
to show entitlement to relief. Twombly, 550 U.S. at 555.
A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to
less stringent standards than formal pleadings drafted by lawyers . . . .” Estelle v. Gamble, 429
U.S. 97, 106 (1976) (internal quotation marks omitted). Because pro se plaintiffs “‘are often
unfamiliar with the formalities of pleading requirements,’ courts must ‘apply a more flexible
standard in determining the sufficiency of a pro se [complaint] than they would in reviewing a
pleading submitted by counsel.’” Smith v. U.S. Dep’t of Just., 218 F. Supp. 2d 357, 361 (W.D.N.Y.
2002) (quoting Platsky v. Cent. Intell. Agency, 953 F.2d 26, 28 (2d Cir. 1991)). However, while
“[p]ro se complaints are held to less stringent standards than those drafted by lawyers, even
following Twombly and Iqbal,” dismissal is “appropriate where a plaintiff has clearly failed to
meet minimum pleading requirements.” Thomas v. Westchester Cty., No. 12-CV-06718, 2013 WL
3357171, at *2 (S.D.N.Y. July 3, 2013) (internal citations omitted); see also Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case . . . although a court must accept as true
all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” (internal quotation marks omitted)). Therefore, while the Court must “draw the
most favorable inferences that [a plaintiff’s] complaint supports, [it] cannot invent factual
allegations that [a plaintiff] has not pled.” Chappius, 618 F.3d at 170. The Court does, however,
have a duty to interpret “the pleadings of a pro se plaintiff liberally and interpret them ‘to raise the
strongest arguments that they suggest.’” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)
(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Fed. R. Civ. P. 12(b)(1): Lack of Subject-Matter Jurisdiction
This Court, as guided by precedent, turns first to Defendants’ arguments regarding the lack
of subject-matter jurisdiction and dismissal mandated under Rule 12(b)(1).
A. New York Correction Law § 24
Plaintiff does not identify specifically any state law claims for relief. Nevertheless,
Defendants, in reading the FAC broadly, argue that “[t]o the extent state law claims can be read
into the pleadings, they are barred by New York Corrections Law § 24 . . . .” (Mot. at 6). The Court
agrees. New York Correction Law § 24 provides, in pertinent part, as follows:
No civil action shall be brought in any court of the state,
except by the attorney general on behalf of the state, against any
officer or employee of the department, which for purposes of this
section shall include members of the state board of parole, in his or
her personal capacity, for damages arising out of any act done or the
failure to perform any act within the scope of the employment and
in the discharge of the duties by such officer or employee.
Any claim for damages arising out of any act done or the
failure to perform any act within the scope of the employment and
in the discharge of the duties of any officer or employee of the
department shall be brought and maintained in the court of claims
as a claim against the state.
N.Y. Corr. Law §§ 24(1)-(2).
“The Second Circuit has held that this provision prevents federal courts from exercising
pendent jurisdiction over state law claims appended to federal claims brought pursuant to 42
U.S.C. § 1983.” Sughrim v. New York, No. 19-CV-07977, 2020 WL 7047697, at *21 (S.D.N.Y.
Nov. 30, 2020) (quoting Hassell v. Fischer, 96 F. Supp. 3d 370, 385 (S.D.N.Y. 2015)); see also
Brown v. Griffin, No. 18-CV-05439, 2019 WL 4688641, at *8 (S.D.N.Y. Sept. 25, 2019)
(dismissing claims for alleged violations of the New York State Constitution); Davis v. McCready,
283 F. Supp. 3d 108, 124 (S.D.N.Y. 2017) (“[U]nder Section 24, any tort claim arising under New
York law . . . must be dismissed for lack of subject matter jurisdiction.”); Cruz v. New York, 24 F.
Supp. 3d 299, 309 (W.D.N.Y. 2014) (“Plaintiff’s state law claims against Defendants . . . are barred
because New York Correction Law § 24 shields them from liability for state law claims in both
state and federal court.”).
Here, Plaintiff does not suggest that either Defendant acted outside the scope of their
employment. (See generally FAC); see also Cruz, 24 F. Supp. 3d at 310 (explaining that “[t]he test
to determine whether the defendants’ actions fall within the scope of their employment is whether
the act was done while the servant was doing the master’s work no matter how irregularly, or with
what disregard of instructions” (internal quotation marks omitted)). Therefore, because any state
law claims against Defendants “would be barred in New York state courts, this Court equally lacks
jurisdiction over the claims.” Hassell, 96 F. Supp. 3d at 385. Plaintiff’s claims under New York
State law are, accordingly, dismissed.
B. Eleventh Amendment Immunity
Insofar as Plaintiff intends to press claims against Defendants in their official capacities
under 42 U.S.C. § 1983, those claims must be dismissed by operation of the Eleventh Amendment.
(Mot. at 6).
The Eleventh Amendment directs 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.” U.S.
Const. amend. XI. This language bars suits, even those arising under federal law, against a state,
or against a state employee acting in his or her official capacity, by one of its own citizens. Woods
v. Rondout Valley Centr. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing Hans v.
Louisiana, 134 U.S. 1, 15 (1890)); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989) (“A suit against a state official in his or her official capacity is not a suit against the official,
but rather is a suit against the official's office . . . . As such, it is no different from a suit against the
“[A]s a general rule, state governments may not be sued in federal court unless they have
waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’
Eleventh Amendment immunity when acting pursuant to its authority under Section 5 of the
Fourteenth Amendment.” Nelkenbaum v. Jordy, No. 19-CV-07953, 2020 WL 7630354, at *2
(S.D.N.Y. Dec. 22, 2020) (quoting Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (alteration
in original)). To that point, it is well-settled that “New York has not waived its sovereign immunity
in § 1983 lawsuits, nor has Congress abrogated the State’s immunity.” Phillips v. New York, No.
13-CV-00927, 2013 WL 5703629, at *3 (N.D.N.Y. Oct. 17, 2013) (citing Vincent v. Yelich, 718
F.3d 157, 177 (2d Cir. 2013)); see also Keitt v. New York City, 882 F. Supp. 2d 412, 424 (S.D.N.Y.
2011) (“Magistrate Judge Freeman properly concluded that Keitt’s Section 1983, 1985, and 1986
claims against the State of New York and its agencies are barred by the [Eleventh] Amendment.”).
Consequently, because the Eleventh Amendment deprives this Court of subject-matter
jurisdiction and neither exception applies, the claims for relief under 42 U.S.C. § 1983 are
dismissed under Rule 12(b)(1) to the extent they seek relief against Defendants in their official
capacities. This result does not affect the 42 U.S.C. § 1983 claims against Defendants in their
individual capacities. The Court therefore considers Defendants’ arguments for dismissal of those
claims for relief under Rule 12(b)(6).
Fed. R. Civ. P. 12(b)(6): Failure to State a Claim Upon Which Relief Can Be Granted
The Court construes Plaintiff’s claim against Defendants as seeking relief under 42 U.S.C.
§ 1983. That statute provides, in pertinent part, that “[e]very person who, under color of any statute
. . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured . . . .” 42 U.S.C. § 1983. “[T]his language . . . creates a mechanism by which
individuals can vindicate the violation of rights secured elsewhere.” Linares, 2021 WL 2689736,
at *6 (quoting Santucci v. Levine, No. 17-CV-10204, 2021 WL 76337, at *3 (S.D.N.Y. Jan. 8,
2021) (first alteration in original)). The allegations here concern the Eighth Amendment. (See
Plaintiff presses a Section 1983 claim against Defendants for inadequate medical care
under the Eighth Amendment with respect to their delayed x-ray of his right pointer finger. (Id.).
On July 11, 2022, Chief Judge Swain addressed the merits of Plaintiff’s deliberate indifference
claim in an Order to Amend. (See generally Order to Amend). This Order incorporates by reference
Chief Judge Swain’s analysis and findings regarding Plaintiff’s deliberate indifference claim as
set forth in the Order to Amend. (Id.) Chief Judge Swain ultimately found that “[b]ecause Plaintiff
does not allege facts suggesting that Defendants acted with deliberate indifference to his medical
needs, he fails to state an Eighth Amendment claim under Section 1983.” (Id. at 8). Plaintiff was
permitted sixty days to amend his complaint to further detail his claims. (Id. at 9).
As explained in detail in the Order to Amend, Plaintiff must satisfy both the objective
component and a subjective component to state a claim for deliberate indifference under the Eighth
Amendment. (Id. at 4 (citing Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). The Court turns
first to the subjective component. Chief Judge Swain determined that Defendants’ alleged failure
to order x-rays of Plaintiff’s finger injury “amount[s] to a challenge to Defendants’ medical
judgment or, at most, suggest negligence or perhaps medical malpractice.” (Id. at 7). This medical
decision, even if it amounts to negligence or malpractice, is insufficient to establish a claim of
deliberate indifference. (Id. at 7). Accordingly, “Plaintiff’s allegations fail to satisfy the standard’s
subjective component because they do not suggest that Defendants acted with a state of mind akin
to criminal recklessness.” (Order to Amend at 8). Chief Judge Swain directed Plaintiff to amend
the complaint to allege facts “suggesting that Defendants were aware of a substantial risk of serious
harm and ignored that risk. Allegations of mere negligence or medical malpractice will not
suffice.” (Id. at 9).
In the FAC, Plaintiff adds allegations detailing his complaints to Defendants regarding the
finger injury. (FAC ¶¶ 10-16). Specifically, Plaintiff alleges that he complained to Defendants
about the pain, swelling, and inability to bend his finger, as well as his belief that the finger was
broken, in-person on the day of the incident, in eight written letters, and during visits to “sick call.”
(Id.). The FAC also alleges Defendants “delayed the provision of treatment which could have
prevented the severe infection, swelling, and a surgical procedure performed without anesthesia.”
(Id. ¶ 14).
Even viewing these newly added allegations in the light most favorable to Plaintiff, they
do not allege awareness of a “substantial risk of serious harm” that Defendants ignored. The new
allegations merely expand on the fact that, at the time Defendants decided not to order an x-ray,
they were aware of the pain, swelling, and Plaintiff’s belief that his finger was broken. That
Defendants had this information about Plaintiff’s medical condition and chose not to order an xray for 24 days amounts to a challenge to Defendants’ medical judgment. (Order to Amend at 78); see Vento v. Lord, No. 96-CV-06169, 1997 WL 431140, at *5 (S.D.N.Y. July 31, 1997)
(holding that “[p]laintiff’s allegation regarding defendants’ failure to order new x-rays, taken in
its most favorable light, merely constitutes a challenge to defendants’ medical judgment” and
therefore fails to state a claim). At most, the FAC suggests that Defendants, having heard Plaintiffs’
complaints and seen his injured finger, might be accused of negligence by failing to order an xray. (Id.); see Torres v. Alers, No. 04-CV-01127, 2005 WL 2372741, at *3 (S.D.N.Y. Sept. 26,
2005) (“At most, Defendant might be accused of negligence in failing to order an x-ray of
Plaintiff’s ankle, but . . . simple negligence, even if it amounts to medical malpractice, does not
establish deliberate indifference.”). The FAC therefore fails to plausibly allege that Defendants
acted with a “sufficiently culpable state of mind” to support a claim for deliberate indifference in
violation of the Eighth Amendment. See i.e., Williams v. Williams, No. 13-CV-03154, 2015 WL
568842, at *7 (S.D.N.Y. Feb. 11, 2015) (“At their strongest, Plaintiff’s allegations suggest that Dr.
Williams negligently misdiagnosed his broken finger during his May 24 visit and that Plaintiff
disagreed with the course of treatment that he received from Dr. Williams. Without more, as
already noted, allegations of a negligent misdiagnosis do not satisfy the subjective requirement of
the deliberate indifference analysis because they do not suggest that the defendant acted with a
conscious disregard to inmate health or safety.”).
The FAC does not provide any basis to disturb Chief Judge Swain’s holding that Plaintiff
failed to allege facts suggesting that Defendants acted with deliberate indifference. Accordingly,
Plaintiff’s claim for deliberate indifference in violation of the Eighth Amendment is dismissed.6
With respect to the objective prong, the Order to Amend directs the following: “[Plaintiff] must allege
facts showing that had a medical condition that posed an unreasonable risk of serious damage to his health.
Plaintiff should reallege the facts included here regarding his injuries, as well as any other facts suggesting
that his condition was one that may produce death, degeneration, or extreme pain.” (Id. at 9). Given this
Court’s conclusion as to the subjective prong of the deliberate indifference standard, discussed supra, it
need not and does not reach the issue of whether the FAC alleges a medical condition which rises to the
level of an objectively serious medical need.
For the foregoing reasons, the motion to dismiss is GRANTED 7 with prejudice as to
Defendants Kim and Simpson. 8
Although “[d]istrict courts should frequently provide leave to amend before dismissing a
pro se complaint,” it is “not necessary when it would be futile.” Reed v. Friedman Mgmt. Corp.,
541 F. App’x 40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
This action is dismissed with prejudice to the extent outlined above. Here, having already amended
his complaint once, any further amendment would be futile. Accordingly, and although Plaintiff
has not sought permission to do so, leave to file a Second Amended Complaint is denied.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Opinion and
Order would not be taken in good faith, and therefore in forma pauperis status is denied for the
purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that
an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
The Clerk of the Court is respectfully directed to terminate the motion pending at Docs. 24
and 29, close this case, and mail a copy of this Opinion and Order to Plaintiff.
In light of the conclusions reached herein, the Court need not and does not address Defendants’ arguments
regarding qualified immunity or the availability of declaratory relief. (See Mot. at 6-7).
Dismissal with prejudice is warranted as to Simpson, the unserved Defendant, for the same reasons
applicable to Kim, the served Defendant. See Cartwright v. D’Alleva, No. 17-CV-05953, 2018 WL
9343524, at *9 (S.D.N.Y. Aug. 27, 2018), aff’d, 782 F. App’x 77 (2d Cir. 2019).
White Plains, New York
November 14, 2023
PHILIP M. HALPERN
United States District Judge
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