Rocheleau v. Hearn
Filing
116
Opinion and Order: The Court DENIES Defendant's Motion 100 for Summary Judgment. The Court DIRECTS Plaintiff to advise the Court no later than 07/29/2013, whether he would like the Court to seek appointment of pro bono counsel for Plaintiff. Signed on 07/11/2013 by Judge Anna J. Brown. See attached 18 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BRIAN JOSEPH ROCHELEAU,
OPINION AND ORDER
Plaintiff ,
v.
CORPORAL K. HEARN,
Defendant .
BRIAN JOSEPH ROCHELEAU
#14937686
Snake River Correctio nal Institutio n
777 Stanton Boulevard
Ontario, OR 97914-8335
Plaintiff,
Pro Se
ELLEN ROSENBLUM
Attorney General
KRISTIN A. WINGES-YANEZ
Assistant Attorney General
State of Oregon Departmen t of Justice
1162 Court Street, N.E.
Salem, OR 97301
(503) 947-4700
Attorneys for Defendant
1 - OPINION AND ORDER
3:12-CV-00 541-BR
BROWN, Judge.
This matter comes before the Court on Defendant 's Motion
(#100) for Summary Judgment.
For the reasons that follow, the
Court DENIES Defendant 's Motion.
BACKGROUND
On March 25, 2011, Plaintiff Brian Rocheleau ' was involved
in an altercatio n with another inmate while both were housed at
Two Rivers Correctio nal Institutio n (TRCI).
Plaintiff alleges
during the altercatio n with the other inmate, Defendant Corporal
Ken Hearn intention ally and malicious ly struck Plaintiff in the
left eye, which caused Plaintiff to suffer painful headaches ,
blurred vision, and anxiety.
Also on March 25, 2011, Defendant filed a Misconduc t Report
in which he described his interactio n with Plaintiff:
I observed Inmate Rocheleau go to cell 15 and then I
was giving directives to another inmate who was
I heard a loud noise
standing at the control point.
the dayroom and when I turned around I observed
from
Inmate Rocheleau running after Inmate [REDACTED) moved
to the area and called a fight on unit 6 and then gave
I observed the
several directive s to stop fighting.
fact that Inmate [REDACTED) was not engaged in the
fight and was only trying to keep from being hit by
Inmate [REDACTED) was knocked to the
Inmate Rocheleau .
floor and Inmate Rocheleau jumped on his back and threw
closed hand punches to the back, front and both sides
Inmate [REDACTED] covered up and did not
of head.
I grabbed Inmate Rocheleau on the
return any blows.
Plaintiff is currently an inmate at Snake River
Correctio nal Institutio n (SRCI).
1
2 - OPINION AND ORDER
shoulders from behind in an attempt to stop him
throwing blows. When I was unable to stop the assault,
I reached for my spray but C/O D. West arrived at that
time and told Inmate Rocheleau to stop fighting or he
Inmate Rocheleau finally disengaged
would spray him.
and I was able to restrain him and C/O West restrained
Inmate [REDACTED] . All the time, I was attempting to
stop Inmate Rocheleau from hitting Inmate [REDACTED] I
Inmate
was giving directives to stop fighting.
Rocheleau was in an unauthorized area because he was
told to put his property away and he instead he went to
the dayroom and started his assault. All of this took
place in the presence of at least 60 or more inmates.
This caused a direct threat to the safety and security
of the institution.
Decl. of Ken Hearn, Ex. 2 at 1.
Defendant submitted a DVD recording of the altercation and
Defendant's intervention that reflects the altercation lasted
approximately 25-30 seconds and Plaintiff did not stop fighting
with the other inmate for approximately 20 seconds after
Defendant intervened.
It is clear from the recording that
Defendant grabbed Plaintiff from behind.
Defendant's back,
however, is to the camera and blocks the view of Defendant's
hands and Plaintiff's head for the majority of the incident.
The
recording, therefore, does not establish whether Defendant struck
Plaintiff in the left eye.
After the altercation Plaintiff reported to TRCI Medical
Services.
Plaintiff's chart notes reflect he had ''a L eye bruise
& swelling & very small laceration o active bleeding when
assessed.
Small scrape on L elbow noted.
are redened [sic].
Knuckles on both hands
Instructed to use ice for swelling & Tylenol
3 - OPINION AND ORDER
for pain.
Decl. of Bridgett
Pt denies any pain at this time."
Whelan, Ex. 1 at 1.
On May 3, 2011,
Plaintiff reported to TRCI Medical Services
that "since [he] was in a fight and got hit
@
temple area,
[his]
vision has been blurry and [he] get[s] headaches 'really bad.'"
Whelan Decl., Ex. 1 at 1.
On May 6, 2011, Plaintiff submitted an Inmate Communicatio n
Form in which he noted:
Due to an extensive blow to my left eye on 3-25-11 I
have been experiencing severe migraines and at time my
vision becomes blurry. , . . On a scale of 1-10 my
I cannot sleep, eat, or
migraines are a solid 8-9.
generally function normally when this type of pain
comes, which is nearly every single day.
Decl. of Plaintiff, Ex. 4 at 1.
On November 3, 2011, Plaintiff submitted a second Inmate
Communicatio n Form complaining of continued migraines and loss of
vision in his left eye and requesting diagnostic imaging tests to
determine the extent and the cause of his injury sustained
March 25, 2011.
On March 23, 2012, Plaintiff filed a pro se § 1983 Complaint
in this Court alleging Defendant violated Plaintiff's right to be
free from cruel and unusual punishment under the Eighth Amendment
when Defendant intentionally struck Plaintiff in the left eye
during the altercation on March 25, 2011.
Plaintiff seeks
damages and a declaration that Defendant violated Plaintiff's
rights under the Eighth Amendment.
4 - OPINION AND ORDER
On April 1, 2013, Defendant filed a Motion for Summary
Judgment. 2
The Court took this matter under advisement on
May 13, 2013.
STANDARDS
Summary judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law."
Washington Mut. Ins. v. United
States, 636 F. 3d 1207, 1216 (9'° Cir. 2011).
Civ. P. 56(a).
See also Fed. R.
The moving party must show the absence of a
dispute as to a material fact.
Rivera v. Philip Morris, Inc.,
395 F. 3d 1142, 1146 (9'" Cir. 2005).
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
Id.
''This burden is not a light one
The non-moving party must do more than show there is
some 'metaphysica l doubt' as to the material facts at issue."
In
re Oracle Corp. Sec. Litig., 627 F. 3d 376, 387 (9'° Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."
Villiarimo v. Aloha Island Air, Inc., 281 F. 3d
The Court issued a summary judgment advice notice to
Plaintiff on April 3, 2013.
2
5 - OPINION AND ORDER
1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby,
Inc.,
477 U.S. 242, 248
(1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
Sluimer
"Summary
v. Verity, Inc., 606 F. 3d 584, 587 (9th Cir. 2010).
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
381 F. 3d 948, 957
Easter v.
(9th Cir. 2004) (citation omitted).
Am. W. Fin.,
A "mere
disagreement or bald assertion" that a genuine dispute as to a
material fact exists "will not preclude the grant of summary
judgment."
Deering v. Lassen Cmty.
Coll. Dist., No.
2:07-CV-
1521-JAM-DAD , 2011 WL 202797, at *2 (E.D. Cal., Jan. 20,
2011) (citing Harper v. Wallingford,
1989)).
877 F.2d 728, 731 (9th Cir.
When the nonmoving party's claims are factually
implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
LVRC Holdings LLC
v. Brekka, 581 F. 3d 1127, 1137 (9th Cir. 2009) (citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.
Prod., Inc.,
454 F.3d 975, 987
Miller
v.
(9th Cir. 2006).
Glenn Miller
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
Id.
DISCUSSION
Defendant moves for summary judgment on the grounds that
6 - OPINION AND ORDER
(1) Plaintiff 's claim is barred by the Eleventh Amendment ,
(2) Defendant did not violate Plaintiff 's rights under the Eighth
Amendment , and (3) Defendant is entitled to qualified immunity.
I.
Eleventh Amendment
Defendant asserts Plaintiff 's claim is barred by the
Eleventh Amendment because Plaintiff "appears to have brought
suit against Defendant Hearn in his official capacity" and
official-c apacity actions against state actors are barred in this
Court under the Eleventh Amendment .
Plaintiff does not allege in his Complaint whether he brings
this action against Defendant in his official or individua l
capacity.
In Plaintiff 's Response to Defendant 's Motion for
Summary Judgment, however, Plaintiff asserts he brings this
action against Defendant in his individua l capacity.
In
addition, the nature of Plaintiff 's allegation s and the relief he
seeks support Plaintiff 's assertion that he brings this action
against Defendant in his individua l capacity.
Specifica lly,
Plaintiff has not alleged that a policy or procedure of TRCI
allegedly violated his rights.
Instead Plaintiff alleges
Defendant himself violated Plaintiff 's rights when he hit
Plaintiff.
Moreover, Plaintiff seeks damages as well as
declarato ry relief.
Even if Plaintiff had not clarified the capacity in which he
brings this action against Defendant, the Ninth Circuit has held
7 - OPINION AND ORDER
the court should presume an official is being sued in his
individual capacity when a complaint seeking damages under § 1983
does not allege whether the official is sued in his individual or
personal capacity.
See Shoshone-Ban nock Tribes v. Fish & Game
Com'n, Idaho, 42 F. 3d 1278, 1284 (9th Cir. 1984).
See also
Blaylock v. Schwinden, 863 F. 3d 1352, 1354 (9th Cir. 1988).
The Court concludes Plaintiff has established that he brings
his claim against Defendant in Defendant's individual capacity.
Accordingly, the Court concludes Plaintiff's claim is not barred
by the Eleventh Amendment.
II. Violation of Defendant's Eighth Amendment rights
Defendant also seeks summary judgment on the grounds that
(1) he did not strike Plaintiff in the eye,
(2) his use of force
was necessary to maintain order and to defend another inmate from
immediate physical harm by Plaintiff,
(3) the amount of force
Defendant used was appropriate, and (4) Plaintiff's injury was de
minimus.
A.
Standards
"'[T)he unnecessary and wanton infliction of pain
constitutes cruel and unusual punishment forbidden by the Eighth
Amendment.'"
Hudson v. McMillian,
503 U.S. 1, 5 (1992) (quoting
Whitley v. Albers, 475 U.S. 312 (1986)).
When prison officials
are accused of using excessive physical force to quell a prison
disturbance in violation of the Eighth Amendment, "the core
8 - OPINION AND ORDER
judicial inquiry'' is '''whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm. '"
(2010) (quoting Hudson,
Wilkins v. Gaddy, 559 U.S. 34, 37
503 U.S. at 7).
When prison officials maliciously and sadistically use
force to cause harm, "'contemporary standards of decency always
are violated .
. whether or not significant injury is evident.
Otherwise, the Eighth Amendment would permit any physical
punishment, no matter how diabolic or inhuman, inflicting less
than some arbitrary quantity of injury.'"
503 U.S. at 9).
Id.
(quoting Hudson,
Nevertheless, the Supreme Court has made clear
that the absence of serious injury is not irrelevant and that
''t]he extent of injury suffered by an inmate is one factor that
may suggest whether the use of force could plausibly have been
thought necessary in a particular situation."
Id. at 38
(quotation omitted).
As we stated in Hudson, not "every malevolent
touch by a prison guard gives rise to a federal
cause of action." 503 U.S. at 9, 112 S. Ct. 995.
"The Eighth Amendment's prohibition of 'cruel and
unusual' punishments necessarily excludes from
constitutional recognition de minimis uses of
physical force, provided that the use of force is
not of a sort repugnant to the conscience of
mankind." Ibid. (some internal quotation marks
omitted). An inmate who complains of a "push or
shove" that causes no discernible injury almost
certainly fails to state a valid excessive force
Ibid. (quoting Johnson v. Glick, 481 F.2d
claim.
1028, 1033 (2d Cir.1973)).
Injury and force, however, are only imperfectly
9 - OPINION AND ORDER
correlated , and it is the latter that ultimately
counts. An inmate who is gratuitou sly beaten by
guards does not lose his ability to pursue an
excessive force claim merely because he has the
good fortune to escape without serious injury.
According ly, the Court concluded in Hudson that
the supposedly "minor" nature of the injuries
"provide[d ] no basis for dismissal of [Hudson's]
§ 1983 claim."
I d.
The Ninth Circuit has held courts should consider five
factors when determinin g whether the use of force was wanton and
unnecessa ry:
(1) the extent of injury suffered by an inmate; (2) the
need for applicatio n of force; (3) the relationsh ip
between that need and the amount of force used; (4) the
threat reasonably perceived by the responsib le
officials ; and (5) any efforts made to temper the
severity of a forceful response.
Martinez v.
Stanford,
Hudson, 503 U.S.
B.
323 F. 3d 1178, 1184 (9th Cir. 2003) (citing
at 7).
Need for applicatio n of force and the threat perceived
by Defendant
Plaintiff does not dispute Defendant needed to use some
degree of force under the circumstan ces because Defendant
reasonably perceived Plaintiff was a threat to the other inmate.
Plaintiff does not dispute he was involved in an altercatio n with
another inmate and that the other inmate did not fight back and
sought only to protect himself against Plaintiff 's attack.
The
DVD recording of the incident reflects Plaintiff did not stop his
assault on the other inmate when Defendant sought to intervene .
10 - OPINION AND ORDER
ODOC regulations specifically authorize the use of
force in a good-faith effort "to maintain legitimate correctional
objectives:
for self defense or [to] defend another person
against an inmate by using reasonable force."
013-0065(1).
Or. Admin. R. 291-
On this record the Court concludes Defendant was
entitled to use some degree of force to stop the altercation.
C.
Degree of force used
As noted, Defendant maintains he did not hit Plaintiff
in the eye (intentionally or not).
Defendant testifies in his
Declaration that he grabbed Plaintiff by the shoulders and
attempted to pull him off of the other inmate, but Plaintiff did
not stop hitting the other inmate until additional prison staff
arrived.
Defendant also relies on the DVD recording of the
altercation to support his assertion that he did not hit
Plaintiff in he eye.
The recording clearly reflects Plaintiff
did not stop hitting the other inmate when Defendant intervened,
and, in fact,
Plaintiff continued with his assault for
approximately 20 seconds until another guard arrived.
As noted,
however, the recording does not provide a clear view of
Defendant's hands or Plaintiff's left eye for much of their
interaction.
Plaintiff, in turn, relies on the Affidavit of Kevin
Stanford, an inmate who witnessed the altercation in question, to
support his allegation that Defendant intentionally hit him in
11 - OPINION AND ORDER
the eye.
Stanford testifies he was in the unit on March 25,
When Stanford heard "stop fighting,
2011.
stop fighting,'' he
looked to his right and saw Defendant "coming out of the office
shaking a can of chemical spray.''
(Stanford Aff.)
at~
3.
Rocheleau Decl., Ex. 1
Stanford testifies he saw Defendant come
up behind Plaintiff while Plaintiff was on top of the other
inmate and ''hit [Plaintiff] in the side of the face with the can
of chemical spray itself.''
Id. a t ! 4.
Plaintiff also relies on Defendant's report of the
attack in which Defendant noted the other inmate did not fight
back, and, therefore, according to Plaintiff, Defendant must have
caused the injuries to Plaintiff's eye and/or head.
Viewing the evidence in the light most favorable to
Plaintiff, the Court concludes on this record that Plaintiff has
established a genuine dispute of material fact exists as to the
extent of force used by Defendant.
D.
Relationship between the amount of force used and the
need for force
Defendant asserts he used force in an good-faith effort
to restore discipline, not maliciously or sadistically to cause
harm.
Defendant relies on three cases from other districts to
support his assertion.
In Meza v. Director of California
Department of Corrections, the court held the plaintiff did not
state a claim for violation of the Eighth Amendment when he
alleged the defendant corrections officer slammed his head to the
12 - OPINION AND ORDER
wall, causing the plaintiff to develop a bruise.
No. 1:05-
CV-01180-0 WW-LJO-P, 2006 WL 1328220, at *3 (E.D. Cal. May 15,
2006).
The court in Meza, however, did not analyze whether the
defendant applied the force in a good-faith effort to maintain
and to restore discipline or malicious ly and sadistica lly to
The court based its holding on a conclusion that the
cause harm.
injury suffered by the plaintiff was de minimis, but the Supreme
Court recently has found that type of analysis to be
insufficie nt.
See Wilkins,
559 U.S. at 38 ("To conclude, as the
District Court did here, that the absence of 'some arbitrary
quantity of injury' requires automatic dismissal of an [Eight
Amendment ] claim improperly bypasses th[e] core inquiry" as to
whether the force ''was applied .
to cause harm.").
malicious ly and sadistica lly
According ly, Meza does not establish the force
used by Defendant was not applied in a good-faith effort to
maintain or to restore discipline .
Defendant also relies on Crow v. Leach in which the
plaintiff , an inmate, and the defendant , a correction al
counselor , met in order for the defendant to provide the
plaintiff with certain legal documents .
It was undisputed that
the defendant gave the plaintiff the documents , asked the
plaintiff to sign them, and asked the plaintiff to return the
documents .
The plaintiff refused to return the documents even
after the defendant gave him two direct orders to do so.
13 - OPINION AND ORDER
The
plaintiff alleged he attempted to get up and to leave after
refusing to return the documents, and the defendant pushed the
plaintiff with both hands causing the plaintiff to fall backwards
and forcing his right arm through a window, at which point the
plaintiff hit the defendant in self-defense .
No. C-93-20199 WAI,
1995 WL 456357, at *1 (N.D. Cal. July 28, 1995).
The defendant
alleged the plaintiff leapt out of his chair and assumed a
"combative stance" when the plaintiff refused to return the
documents.
The defendant put his hand on the plaintiff's chest
to "create some space'' between them.
The plaintiff hit the
defendant in the jaw, and the defendant then defended himself by
hitting the plaintiff in the mouth causing the plaintiff's
shoulder to hit and to break the window.
Id.
The defendant
moved for summary judgment on the plaintiff's Eighth Amendment
claim.
The court granted the defendant's motion reasoning in
pertinent part:
The next inquiry is whether the relationship
between the need to control Crow and the amount of
Viewing the facts in a
force used was reasonable.
most favorable to Crow, the amount of force
light
Crow alleges that Leach
used was reasonable.
pushed him backwards and he fell into his chair
causing his shoulder to break the window behind
Leach did not hit Crow with a closed fist,
him.
nor does Crow allege that he was intentionally
Even under Crow's
pushed into the window.
scenario, his fall into the window was incidental
Leach did
to being pushed back into his chair.
exceed the scope of his authority by trying to
not
force Crow to sit and follow orders.
The Eighth Amendment necessarily excludes from
14 - OPINION AND ORDER
constituti onal recognitio n de minimis uses of
physical force, provided that the use of force is
not of a sort 'repugnant to the conscienc e of
However,
Whitely, 475 U.S. at 327.
mankind.'
when prison officials malicious ly and sadistica lly
use force to cause any harm, contempor ary
Id.
standards of decency are always violated.
He has
and cuts.
Crow has suffered minor bruises
not alleged any significan t or permanent injury.
It is not repugnant to the conscienc e of mankind
for a prison official to push an inmate into his
seat under these circumstan ces. Moreover, Leach
did not exhibit, and Crow does not allege, any
Given the minimal
malicious or sadistic intent.
extent of the injuries, and that the use of force
was reasonable under the circumstan ces, Crow's
injuries do not rise to constituti onal levels.
Id., at *2-*3.
This case is closer to the circumstan ces here.
In particula r, it is undisputed that Defendant was entitled to
use some degree of force because Plaintiff was engaged in an
altercatio n with another inmate.
Unlike in Crow, however,
Plaintiff alleges Defendant intention ally struck him in the face,
and Stanford makes a similar allegation in his Affidavit .
Plaintiff also alleges a significan t injury that has had longterm effects including headaches and blurry vision, and his
reports of those effects are reflected in the record.
Crow,
therefore , does not establish as a matter of law that the force
used by Defendant was not applied malicious ly or sadistica lly to
cause harm as opposed to in a good-faith effort to restore
discipline .
Finally, Defendant relies on Olson v. Coleman in which
the plaintiff inmate alleged the defendant correction al officer
15 - OPINION AND ORDER
804 F. Supp. 148,
struck him once in the head during transport.
149 (D. Kan. 1992).
The court granted the defendant's motion for
summary judgment on the plaintiff's Eighth Amendment claim on the
grounds that there was not any evidence that the event occurred
as the plaintiff alleged, that the blow was delivered by the
defendant, nor that the plaintiff suffered a serious or ongoing
injury as a result of the blow.
Id. at 150.
Here, however,
Plaintiff has a witness who testifies Defendant hit Plaintiff in
the head deliberately with a can, and Plaintiff alleges ongoing
medical issues resulted from the blow.
Olson, therefore, does
not establish as a matter of law that the force was applied by
Defendant in a good-faith effort to restore discipline rather
than maliciously or sadistically to cause harm.
On this record the Court concludes Plaintiff has established
a genuine dispute of material fact exists as to the degree of
force used by Defendant and as to whether Defendant applied force
maliciously or sadistically to cause harm rather than in a goodfaith effort to restore discipline.
III. Qualified Immunity
"The doctrine of qualified immunity shields government
officials performing discretionary functions from liability for
damages insofar as their conduct does not violate clearly
established statutory or constitution al rights of which a
reasonable person would have known."
16 - OPINION AND ORDER
Dunn v. Castro,
621 F.3d
1196, 1198-99 (9th Cir. 2010),
Qualified immunity shields a
government official "from suit when he or she 'makes a decision
that, even if constitutionally deficient, reasonably
misapprehends the law governing the circumstances [he]
confronted."'
Smith v.
Almada,
623 F. 3d 1078, 1083-84 (9th Cir.
2010) (quoting Brosseau v. Haugen, 125 S. Ct. 596, 599 (2004)).
The Ninth Circuit uses ''a two-step analysis to determine
whether the facts show that:
(1) the conduct of the [defendants]
violated a constitutional right; and (2) the right that was
violated was clearly established at the time of the violation."
Huff v.
City of Burbank,
No. 09-55239, 2011 WL 71472, at *6 (9th
Cir. Jan. 11, 2011) (citing Saucier, 533 U.S. at 201).
It is clearly established that the malicious or sadistic use
of force to cause harm is a violation of the Eighth Amendment.
The Court, however, has concluded Plaintiff has established a
genuine dispute of material fact exists as to the degree of force
used by Defendant and as to whether Defendant used force
maliciously or sadistically to cause harm.
The Court, therefore,
cannot conclude as a matter of law at this time that Defendant is
entitled to qualified immunity because there is a fact issue as
to whether Defendant violated Plaintiff's Eighth Amendment
rights.
IV.
Counsel
On March 30, 2012, the Court issued an Order denying
17 - OPINION AND ORDER
Plaintiff's Motion for Appointment of Counsel on the grounds that
at that time Plaintiff had demonstrated a sufficient ability to
articulate his claims and that the facts and legal issues
involved were not of substantial complexity to necessitate
appointment of counsel.
Because, however, this matter is now
going to proceed to trial, the Court believes it would be helpful
for Plaintiff to have counsel to assist him at trial.
Accordingly, the Court DIRECTS Plaintiff to advise the Court no
later than July 29, 2013, whether he would like the Court to seek
appointment of pro bono counsel for Plaintiff.
CONCLUSION
For these reasons, the Court DENIES Defendant's Motion
(#100) for Summary Judgment.
The Court DIRECTS Plaintiff to
advise the Court no later than July 29, 2013, whether he would
like the Court to seek appointment of pro bono counsel for
Plaintiff.
IT IS SO ORDERED.
DATED this 11th day of July, 2013.
ANN~~
United States District Judge
18 - OPINION AND ORDER
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