CREWS v. RESNICK et al
MEMORANDUM/OPINION THAT THE COURT WILL GRANT THE DEFENDANTS' MOTION TO DISMISS AND DISMISS THIS ACTION WITH PREJUDICE. A SEPARATE ORDER FOLLOWS. SIGNED BY HONORABLE EDWARD G. SMITH ON 4/4/17. 4/4/17 ENTERED AND COPIES MAILED TO PRO SE' AND E-MAILED.(ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
COMMISSIONER MICHAEL RESNICK,
MAYOR NUTTER, and MAYOR
CIVIL ACTION NO. 16-978
April 4, 2017
The pro se plaintiff was an inmate in the City of Philadelphia Prison System when he
commenced this action claiming that the defendants violated his Eighth Amendment rights when
they periodically placed him in a three-person cell and required him to sleep in a “boat” on the
floor. After the court dismissed the complaint for the failure to state a claim, the court provided
the plaintiff with a period of 30 days to file an amended complaint. Despite the passage of a few
months since the court granted the plaintiff leave to file an amended complaint, he has failed to
file an amended complaint.
The defendants move to have the court dismiss the action for lack of prosecution. They
apparently attempted to serve the plaintiff with the motion only to discover that he is no longer
incarcerated and they have no manner to contact him. The plaintiff has not notified the court that
he has changed his address.
As stated further below, the plaintiff’s failure to notify the court of his change of address
would, in itself, warrant dismissal of this action without prejudice without considering the factors
set forth in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984) to govern
motions to dismiss for failure to prosecute. Nonetheless, even if the court were to consider the
Poulis factors, the court would still dismiss the action for failure to prosecute because it is the
only appropriate sanction for the plaintiff’s failure to file an amended complaint or to update his
address in this case.
ALLEGATIONS AND PROCEDURAL HISTORY
The pro se plaintiff, Michael Crews, filed an application to proceed in forma pauperis
and a proposed complaint against the defendants, Commissioner Michael Resnick, Mayor Nutter,
and Mayor Kenney, on February 23, 2016. 1 Doc. No. 1. The Honorable Norma L. Shapiro, now
deceased, entered an order (1) denying without prejudice the application to proceed in forma
pauperis because the plaintiff failed to file a certified copy of his prisoner account statement for
the six-month period preceding the filing of the complaint, and (2) requiring the plaintiff to either
pay the filing and administrative fees or supply the court with the certified prisoner account
statement within 30 days of the court’s order. Doc. No. 2. In response to this order, the plaintiff
provided the court with a copy of his prisoner account statement that the clerk of court docketed
on March 28, 2016. Doc. No. 4. On the same date, the plaintiff also filed a notice of change of
address indicating that prison officials were transferring him from one Philadelphia jail, the
Curran Fromhold Correctional Facility (“CFCF”), to another Philadelphia jail, the Philadelphia
Industrial Correctional Center (“PICC”). Doc. No. 3.
After receipt of the plaintiff’s account statement, Judge Shapiro granted his application to
proceed in forma pauperis on April 5, 2016, and the clerk of court subsequently docketed the
In the complaint, the plaintiff declares that he delivered the complaint to prison officials for mailing to the clerk of
court on February 23, 2016. See Complaint at ECF p. 8, Doc. No. 1-1. Pursuant to the federal “prisoner mailbox
rule,” a pro se prisoner plaintiff’s complaint (or petition) is deemed filed “at the time petitioner delivered it to the
prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 275-76 (1988). Although this
doctrine arose in the context of habeas corpus petitions, the Third Circuit has extended it to civil actions brought
under 42 U.S.C. § 1983. See Pearson v. Secretary Dep’t of Corr., 775 F.3d 598, 600 n.2 (3d Cir. 2015) (applying
rule in section 1983 action and determining that pro se prisoner plaintiff filed complaint on date he signed it). The
court has therefore used February 23, 2016, as the filing date for this action.
complaint. Doc. Nos. 5, 6. In the complaint, the plaintiff alleges that his Eighth Amendment
rights were violated when, starting on March 16, 2015, he was housed in a three-person cell at
the CFCF and was sleeping in a “boat” on the floor. Complaint at ECF p. 2. 2 It appears that the
plaintiff had to sleep on the boat in the three-person cell every other month from March 2015
through February 2016. Id. at ECF pp. 2-3. The plaintiff also alleges that he suffers from back
pain due to a prior car accident and sleeping on the boat made it harder for him to sleep. 3 Id. at
ECF p. 3. The plaintiff states that he has grieved the issue of him sleeping on the boat in the
three-person cell, but nothing has come of his grievances. Id. at ECF p. 4. With regard to his
requested relief, the plaintiff seeks $10,000 for his pain and suffering and a transfer to a twoperson cell. Id. at ECF p. 5.
It appears that the United States Marshal’s Service served the summonses and copies of
the complaint upon the defendants, and the defendants later filed a motion to dismiss the
complaint on July 11, 2016. Doc. No. 7. In the motion to dismiss, the defendants generally
contended that the court should dismiss the complaint because the plaintiff failed to allege that
they were personally involved in the alleged wrongs. Memorandum of Law in Supp. of Defs.’
Mot. to Dismiss for Failure to State a Claim at 1-3. The plaintiff never filed a response to the
motion to dismiss.
On August 1, 2016, Chief Judge Petrese B. Tucker reassigned this case, along with 12
other cases, to the Honorable Mitchell S. Goldberg. Doc. No. 9. Judge Goldberg then entered a
memorandum opinion and order on November 30, 2016, in which the court dismissed the
complaint without prejudice because (1) the plaintiff’s allegations “do not show that Crews’s
basic needs were not met or that unnecessary pain was inflicted sufficient to prove a violation of
The court refers to the page numbers on the CM/ECF docket because some of the pages of the complaint are
The plaintiff acknowledges that the medical department has provided him with medication for his back pain.
Complaint at ECF p. 3.
the Eighth Amendment[,]” (2) the complaint did not provide sufficient facts to “assess the
totality of the circumstances of the prison conditions Crews experienced” so the court could
determine if the “conditions were intended to punish or were not rationally related to a legitimate
government purpose,” (3) the plaintiff failed to allege “sufficient facts to establish that any of the
supervisor defendants were personally involved in a constitutional violation[,]” and (4) “[t]he
complaint does not allege a policy of housing inmates in overcrowded cells.” 4 Memorandum
Op. at 4-6, Doc. No. 10.
Because it was “conceivable” that the plaintiff could cure the
aforementioned deficiencies in the complaint, Judge Goldberg granted the plaintiff leave until
December 30, 2016, to file an amended complaint. Id. at 6-7; Order, Doc. No. 11.
Prior to the expiration of the period for the plaintiff to file an amended complaint, Chief
Judge Tucker reassigned the case from Judge Goldberg to the undersigned. Doc. No. 12. The
plaintiff did not file an amended complaint on or before December 30, 2016, and the defendants
filed the instant motion to have the court dismiss the action for lack of prosecution on February
13, 2017. Doc. No. 13. To date, the plaintiff has not filed an amended complaint and he has not
responded to the motion to dismiss. Regarding the plaintiff’s lack of response to the motion to
dismiss, the defendants sent a letter to the court in which they indicate that they attempted to
serve the motion upon the plaintiff at his address in the prison, but they were unable to do so
because he is no longer incarcerated. 5 Doc. No. 14.
Rule 41(b) of the Federal Rules of Civil Procedure provides that “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to dismiss the
Judge Goldberg explained that although it was unclear from the complaint whether the plaintiff was a pretrial
detainee at the time he filed the complaint, thus requiring an analysis under the Fourteenth Amendment rather than
the Eighth Amendment, the plaintiff failed to allege a constitutional violation under either Amendment. See
Memorandum Op. at 3.
The court docketed the defendants’ letter.
action or any claim against it.” Fed. R. Civ. P. 41(b). In the instant motion to dismiss, the
defendants assert that the court should dismiss the action for lack of prosecution because the
plaintiff has failed to file an amended complaint as ordered by the court and an analysis of the
factors set forth in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984)
supports dismissing this action with prejudice. See Memorandum of Law in Supp. of Mot. to
Dismiss for Lack of Prosecution (“Defs.’ Mem.”) at 1-3, Doc. No. 13.
As discussed in more detail below, the court need not even consider the Poulis factors
before finding that dismissal is appropriate here because it appears that the plaintiff has changed
his address after leaving the Philadelphia Prison System and has not updated his address with the
clerk of court. Nonetheless, the court would find that dismissal is appropriate even if the court
considered the Poulis factors.
With regard to the plaintiff’s failure to notify the court of his address change, the court,
upon receiving notice from the defendants that they were unable to serve the plaintiff because he
was no longer incarcerated in the Philadelphia Prison System, conducted a review of the
publicly-available information to attempt to confirm whether he was still incarcerated. In this
regard, the court attempted to locate the plaintiff by using the City of Philadelphia Prison
System’s online inmate locator, but could not locate him. 6 The court also attempted to locate the
plaintiff through the Commonwealth of Pennsylvania, Department of Corrections’ online inmate
locator and could not locate him. 7 As a final measure, the court attempted to discover the status
of the plaintiff’s criminal matter in the Court of Common Pleas of Philadelphia County. While
this is by no means an indisputable finding because the court is unaware of the plaintiff’s date of
birth, it appears that there was only one individual with the plaintiff’s name who had a criminal
The Philadelphia Prison System’s online inmate locator is available at:
http://www.phila.gov/prisons/inmatelocator/inmatelocator.aspx (last visited March 31, 2017).
The Commonwealth of Pennsylvania, Department of Corrections’ online inmate locator is available at:
http://inmatelocator.cor.pa.gov (last visited March 31, 2017).
matter pending in the Court of Common Pleas of Philadelphia County during the time period of
the plaintiff’s incarceration set forth in the complaint. 8 This criminal action was docketed at No.
CP-51-CR-8869-2012. It appears that this matter concluded with a jury trial in which the jury
found the defendant not guilty of all charges on January 24, 2017. 9
As it appears that the plaintiff is no longer incarcerated and has changed his address, he
was obligated to file a notice of change of address with the court. See E.D. Pa. Loc. Civ. R.
5.1(b) (“Any party who appears pro se shall file with the party’s appearance or with the party’s
initial pleading, an address where notices and papers can be served. Said party shall notify the
Clerk within fourteen (14) days of any change of address.”). The plaintiff was apparently aware
of this requirement because he filed a notice of change of address in March 2016 after his
transfer between prisons. Doc. No. 3.
Ordinarily, district courts in the Third Circuit must analyze motions to dismiss for lack of
prosecution by evaluating the six factors set forth in Poulis. See Spain v. Gallegos, 26 F.3d 439,
454-55 (3d Cir. 1994) (“Ordinarily, when a court is determining sua sponte or upon motion of a
defendant whether to dismiss because of a plaintiff’s failure to prosecute” the court must
consider the Poulis factors); see also McLaren v. New Jersey Dep’t of Educ., 462 F. App’x 148,
149 (3d Cir. 2012) (per curiam) (“Typically, district courts are required to evaluate the factors set
forth by [Poulis] to determine whether dismissal is appropriate.”). “However, when a litigant’s
conduct makes adjudication of the case impossible, such balancing under Poulis is unnecessary.”
McLaren, 462 F. App’x at 149 (citing Guyer v. Beard, 907 F.2d 1424, 1429-30 (3d Cir. 1990)
and Spain, 26 F.3d at 454-55).
The defendant’s name was noted as “Michael Ray Crews” on the criminal docket.
The docket information for this criminal matter is available at:
http://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-51-CR-0008869-2012 (last visited
March 31, 2017).
An example of a litigant’s conduct making a case impossible to adjudicate occurs when a
plaintiff does not provide the court with an up-to-date mailing address.
although courts are normally required to consider whether a lesser sanction would
be appropriate (when applying Poulis), “[t]he district court could not contact [the
plaintiff] to threaten [her] with some lesser sanction. An order to show cause why
dismissal was not warranted or an order imposing sanctions would only find itself
taking a round trip tour through the United States mail.”
Id. (quoting Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988)) (alterations in original).
In the instant case, the plaintiff appears to no longer be incarcerated at his address of
record in the Philadelphia Prison System. Because the plaintiff has failed to update the court
with a new address, dismissal of this action as a sanction for the failure to provide the court with
an accurate mailing address would be appropriate. See id. (concluding that “the District Court
did not abuse its discretion in dismissing the case as a sanction for [the plaintiff’s] failure to
provide the Court with an accurate mailing address”); Welch v. City of Philadelphia, No. CIV. A.
11-4670, 2012 WL 1946831, at *4 (E.D. Pa. May 30, 2012) (“[W]hen neither the Court nor
opposing counsel can reach the plaintiff because he has not furnished an up-to-date address . . .,
and when plaintiff has not responded to his opponents’ allegations regarding his failure-toprosecute . . ., we have no choice but to act on the information before us; Plaintiff has, in
essence, made adjudication of the case impossible.”).
Although the court finds that the plaintiff’s failure to notify the court and the defendants
of his change of address warrants dismissal of this action with prejudice, even if the court
analyzed the motion to dismiss under the Poulis factors, the court would still grant the motion to
dismiss this action. 10 In Poulis, the Third Circuit set forth six factors for the court to consider in
The Third Circuit has also found that a plaintiff’s failure to file an amended complaint as directed by a district
court’s order is the type of conduct that would render adjudication of the case impossible, thus warranting dismissal
determining whether to dismiss an action with prejudice for the failure to prosecute. The six
Poulis factors are: (1) the extent of the party’s personal responsibility; (2) the extent of prejudice
to the adversary; (3) a history of dilatoriness; (4) whether the conduct of the party was willful or
in bad faith; (5) the effectiveness of sanctions other than dismissal including an analysis of those
alternative sanctions; and (6) the meritoriousness of the claim or defense. 747 F.2d at 868. The
court will address each of these factors.
The Party’s Personal Responsibility
The first factor is the extent of the party’s personal responsibility. Here, the plaintiff is
personally responsible for his failure to prosecute and his failure to comply with the court’s order
requiring him to file an amended complaint. He is prosecuting this matter in a pro se capacity
and has no one else to blame for his failure to take action in this case. See Clarke v. Nicholson,
153 F. App’x 69, 73 (3d Cir. 2005) (per curiam) (“[U]nlike a situation where dismissal is
predicated upon an attorney’s error, the plaintiff here was pro se and directly responsible for her
actions and inaction in the litigation.”). There is no indication that a third party is responsible for
the plaintiff’s failure or that he has somehow not received notice of his obligation to file an
amended complaint in this case. In this regard, the clerk of court did not receive a returned
envelope from the United States Postal Service indicating that Judge Goldberg’s November 30,
2016 order was undeliverable. Therefore, as the plaintiff is personally responsible for failing to
prosecute this case or in failing to update his address, this first factor weighs heavily in favor of
without consideration of the Poulis factors. See, e.g., Allen v. American Fed. of Gov’t Employees, 317 F. App’x 180,
181 (3d Cir. 2009) (per curiam) (concluding that it was not “error that the District Court did not explicitly weigh the
Poulis factors” when the plaintiff failed to file an amended complaint as ordered by the district court).
Extent of Prejudice to the Defendants
The second factor is the extent of prejudice to the defendants caused by the plaintiff’s
failure to file an amended complaint in accordance with Judge Goldberg’s order. The defendants
argue that they are prejudiced because “this case has become stale, discovery has not begun, and
two of the three defendants (Mayor Nutter and Commissioner Resnick) no longer even work for
the City of Philadelphia.” Defs.’ Mem. at 2. They believe that “the ‘inevitable dimming of
witnesses’ memories’ caused by such delay constitutes prejudice to the[m].” Id. (quoting Riley
v. Pennsylvania Dep’t of Corr., 536 F. App’x 22, 225 (3d Cir. 2013) (per curiam)).
Contrary to the defendants’ arguments, the court does not find that they are prejudiced by
the plaintiff’s conduct in this case. While the City of Philadelphia appears to no longer employ
Mayor Nutter or Commissioner Resnick, the defendants do not articulate how this would actually
(rather than theoretically) prejudice them in this case. 11 In addition, although this case is already
more than a year old and the pleadings are not closed, there is no evidence that this length of
time, in itself, has prejudiced the defendants. While the court recognizes that “the inevitable
dimming of witnesses’ memories” can constitute prejudice in certain circumstances, see
Scarborough v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984), there is no evidence that any
witnesses’ memories have changed in this case. 12 The defendants have not had to take any
action in the case such as filing an answer or engaging in discovery efforts. Therefore, as the
defendants’ arguments are either unsupported or speculative, the court does not find that this
second factor weighs in favor of dismissal.
Presumably, the same counsel currently representing the defendants could still continue to represent them if the
case were to proceed. In addition, as named parties, their discovery responsibilities under the Federal Rules of Civil
Procedure would remain the same whether or not they were still employed by the City of Philadelphia.
While this case has been pending for a little more than a year, Riley involved circumstances where the case had
been pending for more than three years. See 536 F. App’x at 226 (“[I]n light of Riley’s failure to comply with her
multiple orders directing him to respond to the motion to dismiss, there was at least some prejudice in this case,
particularly given that the case had already been pending for more than three years.” (emphasis added)). Thus,
the defendants’ reliance on Riley does not support a finding of prejudice in this case.
The Plaintiff’s History of Dilatoriness
The third factor is whether the plaintiff has a history of dilatoriness. A court can find a
pattern of dilatoriness where there has been “extensive or repeated delay or delinquency . . . such
as consistent non-response to interrogatories, or consistent tardiness in complying with court
orders.” Adams v. Trustees of N.J. Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 87374 (3d Cir. 1994). Here, after being seemingly active in the initial prosecution of this matter
insofar as he promptly responded to the court’s order requesting his six-month account statement
and promptly provided the court with a change of address, he has been inactive in the case since
at least July 2016 insofar as he did not file a response to the motion to dismiss and did not file an
amended complaint in response to Judge Goldberg’s November 30, 2016 order. As stated
earlier, there is nothing in the record showing that the plaintiff did not receive a copy of the
motion to dismiss or Judge Goldberg’s order. Also, despite knowing about the requirement that
he notify the court if he changes his address, it does not appear that he has done so despite no
longer being incarcerated. Based on the above, the court finds that the plaintiff has demonstrated
a history of dilatoriness in this case since July 2016 and this factor weighs at least slightly in
favor of dismissal.
Whether the Plaintiff’s Conduct Was Willful or in Bad Faith
The fourth factor is whether the plaintiff’s conduct was willful or in bad faith. In
evaluating this factor, the court must determine whether the conduct at issue reflects mere
inadvertence or negligence, or conversely, whether it is “the type of willful or contumacious
behavior which [can be] characterized as ‘flagrant bad faith.’” Scarborough, 747 F.2d 871, 875
(3d Cir. 1984) (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639,
643 (1976)). Here, the plaintiff failed to file a response to the motion to dismiss the original
complaint despite the passage of a few months, and he failed to file an amended complaint in
response to Judge Goldberg’s order despite another passage of a few months. There is nothing in
the record to indicate that these failures constitute mere inadvertence or negligence, but the court
cannot similarly ascertain whether this conduct demonstrates flagrant bad faith. The plaintiff has
been “silent, and . . . silence is ambiguous.” El-Hewie v. Paterson Pub. Sch. Dist., No. CIV. A.
13-5820, 2015 WL 5306255, at *4 (D.N.J. Sept. 10, 2015). As such, the court finds that this
factor is neutral and weighs neither against nor in favor of dismissal.
The Effectiveness of Sanctions Other Than Dismissal
The fifth factor is the effectiveness of sanctions other than dismissal. With respect to this
factor, “sanctions less than dismissal [are] ineffective when a litigant . . . is proceeding pro se
and in forma pauperis.” Lopez v. Cousins, 435 F. App’x 113, 116 (3d Cir. 2011) (per curiam).
Here, the plaintiff is proceeding in forma pauperis, so the threat of monetary compliance
(including fines, costs, or payment of attorney’s fees) is unlikely to prompt compliance. Also,
when a pro se plaintiff fails to prosecute his action, any sanction other than dismissing the action
would be inappropriate. See Briscoe v. Klaus, 538 F.3d 252, 262-63 (3d Cir. 2008).
The court recognizes that Judge Goldberg’s order dismissing the complaint and providing
leave to amend does not warn the plaintiff that if he fails to file an amended complaint, the court
may dismiss the action. Nonetheless, the court finds that a warning would be ineffective at this
point in the litigation because the plaintiff is no longer at his address of record and has not
notified the court of the change in address. In addition, while the court could reprimand him,
such a reprimand would again be ineffective insofar as the court has no way to reach the
Thus, the court finds that no alternative sanction is available in this case and,
consequently, this fifth factor weighs in favor of dismissal.
The Meritoriousness of the Claim
The sixth and final factor is the meritorious of the claim or defense. When evaluating
this factor, courts must apply the Rule 12(b)(6) standard for addressing motions to dismiss. 13 In
the first instance, Judge Goldberg thoroughly reviewed the allegations in the complaint and
properly found them to be insufficient to state plausible causes of action against the defendants.
At this point, because the plaintiff has not filed an amended complaint, the court cannot conclude
that the plaintiff has any meritorious claims, particularly against these defendants. Therefore,
this final factor also weighs in favor of dismissal.
Balancing the Factors
The court must now balance the aforementioned six factors. When balancing these
factors, there is no “magic formula” or mathematical calculation used to direct a particular result.
Briscoe, 538 F.3d at 263. In addition, the Third Circuit has provided additional guidance to
district courts by admonishing that “no single Poulis factor is dispositive,” and that “not all of
the Poulis factors need be satisfied in order to dismiss a complaint.” Ware v. Rodale Press, Inc.,
322 F.3d 218, 222 (3d Cir. 2003); Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992). As the
court balances the factors here, the court is mindful that dismissal “is only appropriate in limited
circumstances and doubts should be resolved in favor of reaching a decision on the merits.”
Liggon-Reading v. Estate of Sugarman, 659 F.2d 258, 260 n.1 (3d Cir. 2011) (citations omitted).
In this case, the first, third, fifth, and sixth factors weigh in favor of dismissal. Although the
court recognizes that the defendants’ arguments about prejudice are speculative and unsupported,
and the record is unclear whether the plaintiff has acted willfully or in bad faith, there are simply
To survive dismissal, “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 Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In addition, the plaintiff’s factual allegations “must be enough to raise a right
to relief above the speculative level.” Twombly, 550 U.S. at 556 (citation omitted). While conducting this review,
the court must liberally construe the allegations in the operative complaint because the plaintiff is proceeding pro se.
Higgs v. Attorney Gen., 655 F.3d 333, 339-40 (3d Cir. 2011).
no alternative sanctions that would adequately punish the plaintiff and the case cannot proceed
without an operative complaint. Since at least July 2016, there is nothing in the record indicating
that the plaintiff intends to continue prosecuting this case. Even if the plaintiff had intended to
continue with this case, neither the defendants nor the court can communicate with him because
he is proceeding pro se and has failed to update the court with his address. Therefore, the court
finds that upon balancing all of the Poulis factors dismissal with prejudice is warranted and
appropriate in this case.
The plaintiff’s failure to update the court with his address so that he can receive
communications from the court and the defendants is, in itself, the type of act that renders
adjudication of this case impossible and would warrant dismissal with prejudice without
considering the Poulis factors. Moreover, even though it is possible that the plaintiff’s failure to
file an amended complaint would also, in itself, be a similar act that would render adjudication of
the case impossible, the court’s balancing of the Poulis factors demonstrates that dismissal of
this action with prejudice is the appropriate sanction for the plaintiff’s conduct in this case.
Accordingly, the court will grant the defendants’ motion and dismiss this action with prejudice.
A separate order follows.
BY THE COURT:
/s/ Edward G. Smith
EDWARD G. SMITH, J.
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