Travillion v. Wetzel et al
Filing
31
MEMORANDUM (Order to follow as separate docket entry) re 21 MOTION for Summary Judgment filed by Officer Burns, Officer Crawford, John E. Wetzel, Officer Lose, Officer Stover. For the foregoing reasons, the defendants motion for summary judgment will be granted, and the clerk will be ordered to enter judgment in favor of the defendants and against the plaintiff with respect to all claims.An appropriate order follows. Signed by Chief MJ Joseph F. Saporito, Jr on 3/26/24. (ms)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JAMAR TRAVILLION,
Plaintiff,
CIVIL ACTION NO. 3:22-cv-01196
v.
(SAPORITO, C.M.J.)
LAUREL R. HARRY, in her official
capacity as the Commonwealth of
Pennsylvania’s Secretary of
Corrections, et al.,
Defendants.
MEMORANDUM
This federal civil rights action commenced on August 1, 2022, when
the plaintiff, Jamar Travillion, appearing through counsel, filed his feepaid complaint. Doc. 1. Travillion is a convicted state prisoner,
incarcerated at SCI Rockview, a state prison located in Centre County,
Pennsylvania.
The defendants named in the complaint are: (1) Laurel R. Harry,
state secretary of corrections, sued in her official capacity only; 1
The complaint actually named John E. Wetzel, a former secretary
of corrections, in his official capacity, as its lead defendant. This was a
misnomer, however, as Wetzel had resigned nearly a year earlier and had
been succeeded in office by George Little, who served as acting secretary
1
(continued on next page)
(2) Richard Burns, a corrections officer, sued in his individual capacity
only; (3) Jayson Lose, a corrections officer, sued in his individual capacity
only; (4) Joshua Stover, a corrections lieutenant, sued in his individual
capacity only; and (5) Matthew Crawford, a corrections lieutenant, sued
in his individual capacity only.
The three-count complaint asserts federal civil rights claims
against the defendants under 42 U.S.C. §§ 1981, 1983, and 1985. In
Count I, Travillion asserts parallel § 1983 claims for damages against
Lose for the use of excessive force in violation of his Eighth Amendment
right to be free from cruel and unusual punishment and for racial
discrimination in violation of § 1981, arising out of an incident that
of corrections for an extended period. In 2023, while this action was
pending, Little was succeeded by Laurel R. Harry, the current secretary
of corrections. Because Wetzel was named in his official capacity as a
public officer, first Little and then Harry were automatically substituted
in his place. See Fed. R. Civ. P. 25(d) (“An action does not abate when a
public officer who is a party in an official capacity dies, resigns, or
otherwise ceases to hold office while the action is pending. The officer’s
successor is automatically substituted as a party.”); see also Speer v. City
of Norwich, No. 20-CV-928, 2021 WL 1978791, at *6 (D. Conn. May 18,
2021) (finding automatic substitution under Rule 25(d) appropriate
where a complaint seeking relief against a former public officer in his
official capacity was filed after that officer ceased to hold office).
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occurred on July 31, 2020. 2 In Count II, Travillion asserts parallel § 1983
claims for damages against Lose and Burns for deliberate indifference to
his serious medical needs in violation of his Eighth Amendment right to
be free from cruel and unusual punishment and for racial discrimination
in violation of § 1981, arising in the immediate aftermath of the same
July 31, 2020, incident. 3 In Count III, Travillion asserts related § 1983
and § 1985(3) claims for damages against Lose, Stover, and Crawford for
First Amendment retaliation and conspiracy to interfere with civil rights
in violation of § 1985(3), arising out of an October 14, 2020, cell search,
in which some of Travillion’s legal papers were taken and destroyed. 4
The defendants waived their right to reply to the complaint,
pursuant to 42 U.S.C. § 1997e(g). 5 Doc. 13. The parties have had the
Travillion alleges that Lose injured his foot and leg by closing a
cell door on it. He further alleges that, shortly before this “assault,” Lose
told Travillion to move his “black ass” and referenced “you people” in
what Travillion understood to be a reference to George Floyd protesters.
3 Travillion alleges that Burns and Lose ignored his requests for
medical attention with respect to his foot and leg injury.
4 Travillion alleges that the cell search was conducted and his legal
papers were taken and destroyed in retaliation for his filing of two inmate
grievances related to the July 31 incident. The grievances were both filed
in August 2020.
5 Section 1997e(g) permits a defendant to a prisoner lawsuit to
waive his or her right to reply to the complaint without admitting to any
of the allegations contained therein. See 42 U.S.C. § 1997e(g)(1).
2
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opportunity to engage in and complete discovery, and now, the defendants
have filed a motion for summary judgment. Doc. 21. The motion is fully
briefed and ripe for decision. See Doc. 22; Doc. 23; Doc. 24; Doc. 27; Doc.
28; Doc. 29; Doc. 30.
I.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment should be granted only if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the outcome
of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute of material fact is “genuine” only if the evidence “is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all
inferences “should be drawn in the light most favorable to the nonmoving party, and where the non-moving party’s evidence contradicts the
movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell
Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The
party
seeking
summary
judgment
“bears the
initial
responsibility of informing the district court of the basis for its motion,”
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and demonstrating the absence of a genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes
such a showing, the non-movant must set forth specific facts, supported
by the record, demonstrating that “the evidence presents a sufficient
disagreement to require submission to the jury.” Anderson, 477 U.S. at
251–52.
In evaluating a motion for summary judgment, the Court must first
determine if the moving party has made a prima facie showing that it is
entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S.
at 331. Only once that prima facie showing has been made does the
burden shift to the nonmoving party to demonstrate the existence of a
genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477
U.S. at 331.
Both parties may cite to “particular parts of materials in the record,
including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for the
purposes of the motion only), admissions, interrogatory answers or other
materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration used to
support or oppose a motion must be made on personal knowledge, set out
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facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Fed. R. Civ. P.
56(c)(4). “Although evidence may be considered in a form which is
inadmissible at trial, the content of the evidence must be capable of
admission at trial.” Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 599
(M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d
378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary
judgment, to consider evidence that is not admissible at trial).
II.
UNDISPUTED MATERIAL FACTS 6
The plaintiff, Jamar Travillion, is an inmate incarcerated in the
custody of the Pennsylvania department of corrections. He claims that
In accordance with the requirements of Local Rule 56.1, the
defendants have filed a statement of material facts in support of their
motion for summary judgment, together with an appendix of
documentary exhibits. Doc. 23; Doc. 24. In accordance with the federal
and local rules, the statement of material facts was set forth in numbered
paragraphs and included references to the parts of the record that
supported the statements. See Fed. R. Civ. P. 56(c)(1); M.D. Pa. L.R. 56.1.
The plaintiff has filed a response to the defendants’ statement of
material facts, responding to the numbered paragraphs set forth in the
defendants’ statements by admitting or denying each one, but few of his
responses cite to competent evidence. Doc. 28. Where the plaintiff has
failed to cite competent evidence to demonstrate a genuine dispute of
material fact, the defendants’ statements have been deemed admitted.
See Fed. R. Civ. P. 56(e)(2); M.D. Pa. L.R. 56.1.
6
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defendant Lose, a corrections officer, assaulted him on July 31, 2020,
causing injury to Travillion when Lose shut Travillion’s cell door on his
leg and foot. The plaintiff claims that Lose and defendant Burns, another
corrections officer, denied him medical treatment for that injury. The
plaintiff filed a formal inmate grievance against Lose and Burns
concerning this encounter on August 18, 2020. This grievance was
received on August 19, 2020, and logged as Grievance No. 884391. 7
The plaintiff filed a second formal inmate grievance on August 25,
2020, this time against defendant Stover, a corrections lieutenant,
claiming that Stover had tried to verbally intimidate him into
withdrawing the first grievance. This grievance was received on August
26, 2020, and logged as Grievance No. 885654.
The plaintiff filed a third formal grievance on November 2, 2020,
this time against Stover and defendant Crawford, another corrections
lieutenant, claiming that Stover and Crawford had participated in a cell
search on October 14, 2020, in which some of Travillion’s personal
The defendants’ statement of material facts further notes that this
grievance did not specifically articulate a § 1981 racial discrimination
claim. But for the reasons discussed below, we have found that fact
statement immaterial.
7
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property was destroyed in retaliation for his filing of the two previous
grievances. 8 The grievance did not name Lose at all as a participant in
the cell search on October 14, 2020. This third grievance was received on
November 3, 2020, and logged as Grievance No. 897483.
Notwithstanding Travillion’s unsworn statements in his grievance
papers—and the pleadings filed in this action—it is undisputed that Lose
did not close the cell door on Travillion’s foot or leg, that Travillion did
not ask Lose or Burns for medical attention, and that Lose and Burns did
not deny medical treatment to Travillion. 9
The defendants’ statement of material facts indicates that this
third grievance also named “Rutherford,” another corrections lieutenant.
But the Lieutenant Rutherford named in the grievance is not a defendant
in this case.
9 In support of these fact statements, the defendants have cited
Lose’s and Burns’s testimonial declarations, which are based on their
personal knowledge. In an attempt to dispute these fact statements by
the defendants, the plaintiff has pointed to the unsworn statements he
himself made in Grievance No. 884391. The defendants might properly
rely on statements made by Travillion in his inmate grievances to support
their motion for summary judgment because such statements constitute
non-hearsay opposing-party admissions. See Fed. R. Civ. P. 56(c)(1)(A) (“A
party asserting that a fact cannot be . . . genuinely disputed must support
the assertion by . . . citing to particular parts of materials in the record,
including . . . admissions . . . .”); Fed. R. Evid. 801(d)(2). The plaintiff,
however, cannot rely on unsworn statements as competent evidence in
opposition to summary judgment. See Adickes v. S.H. Kress & Co., 398
U.S. 144, 158 n.17 (1970) (noting that an unsworn statement does not
8
(continued on next page)
-8-
satisfy the evidentiary requirements of Rule 56); Mitnik v. Cannon, 789
F. Supp. 175, 176 (E.D. Pa. 1992) (holding that unsworn statements are
not sufficient to raise a genuine issue of material fact).
In addition to the unrebutted declarations by Lose and Burns, the
defendants have also cited surveillance camera footage depicting the
encounter in which the plaintiff claims Lose shut the cell door on his leg
and foot. The plaintiff does not contend that this video footage contradicts
the testimonial declarations by Lose and Burns, but only that it is
inconclusive, providing an insufficient view of the events to either
support or contradict either side’s account. We disagree. The video
footage is entirely consistent with the testimonial declaration by Lose
denying that he closed the cell door on Travillion’s leg and foot. We need
not, however, determine whether it “blatantly contradicts” Travillion’s
version of events, as Travillion has failed to adduce any evidence
whatsoever to articulate a contrary version of events. See generally Scott
v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary
judgment.”); Millbrook v. United States, No. 15-CV-0832, 2016 WL
4734658, at *9 (M.D. Pa. Sept. 12, 2016) (applying Scott in the context of
video footage). In other words, this is not a case where opposing parties
tell two different stories—Travillion has failed to tell his story at all for
summary judgment purposes.
Although his response to the defendants’ statement of material
facts does not do so, the plaintiff ’s opposition brief expressly relies on the
allegations of his unverified complaint as well in opposing these fact
statements. Opp’n Br. 4 (“Plaintiff ’s allegation is evidence and within the
record of the case at summary judgment.”), Doc. 27. While a defendant
may properly cite allegations in a plaintiff ’s complaint, signed by
plaintiff ’s counsel, as these allegations constitute binding judicial
admissions by the plaintiff, see Fed. R. Civ. P. 56(c)(1)(A); Sovereign Bank
v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 181 (3d Cir. 2008) (“[An]
allegation in the [plaintiff ’s] complaint is a binding judicial admission.”),
a plaintiff cannot rely on his own unverified complaint as competent
evidence in opposition to summary judgment. See Tripoli Co. v. Wella
(continued on next page)
-9-
On August 10, 2020—ten days after the July 31, 2020, encounter
with Lose and Burns—Travillion was seen by a prison nurse for
assessment of an injury to his leg and foot that had occurred when his leg
and foot were caught in his cell door. Travillion reported pain, but denied
redness or swelling. 10 Travillion was sent for x-rays of his leg, ankle, and
Corp., 425 F.2d 932, 935 (3d Cir. 1970) (holding that a party cannot rely
on allegations of an unverified complaint to demonstrate a genuine issue
of material fact); Mitnik, 789 F. Supp. at 176 (holding that allegations in
an unverified complaint are not sufficient to raise a genuine issue of
material fact); Ratner v. Young, 465 F. Supp. 386, 389 (D.V.I. 1979) (“A
party’s unsworn pleadings will not suffice to contest the factual matters
offered in support of the motion.”) (citing Tripoli Co., 425 F.2d at 935). See
generally Porter v. Pa. Dep’t of Corr., 974 F.3d 431, 443 (3d Cir. 2020)
(holding that a verified complaint may be considered as an affidavit on
summary judgment); El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008)
(noting that a “verified complaint” is one that is signed by the plaintiff
personally under penalty of perjury pursuant to 28 U.S.C. § 1746).
Accordingly, in the absence of any citation by the plaintiff to
competent evidence demonstrating a genuine dispute of material fact,
these factual statements by the defendants are deemed admitted.
10 In support of these fact statements, the defendants have cited to
Travillion’s medical treatment records, in which the treating nurse
recorded Travillion’s subjective reports of pain, but no redness or
swelling, in his leg, ankle, and foot after getting it caught in his cell door.
The plaintiff has objected to consideration of this evidence on hearsay
grounds. But this portion of the medical provider’s progress note
indisputably falls within the hearsay exception for statements made for
medical diagnosis or treatment. See Fed. R. Evid. 803(4) (providing that
“[a] statement that: (A) is made for—and is reasonably pertinent to—
medical diagnosis or treatment; and (B) describes medical history; past
or present symptoms or sensations; their inception; or their general
(continued on next page)
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foot. No evidence of any acute fracture was found. 11
After Travillion filed his first inmate grievance, Grievance No.
884391, Lieutenant Stover was assigned to investigate the alleged use of
excessive force by Lose. As part of the investigation, Stover interviewed
Travillion in his office.
On October 14, 2020, Travillion’s cell was searched, along with
other inmate cells on A-Unit. 12 Stover and Crawford were part of a
cause” is not excluded by the rule against hearsay). Therefore, the
plaintiff ’s objection is overruled. The plaintiff has cited no evidence to
contradict these fact statements.
11 The defendants stated that “X-rays from August 10, 2020[,] show
no injury to his left leg, ankle, and foot,” with a citation to certain
radiology reports. The plaintiff objected that, as stated, this
characterization was an interpretation of medical records requiring an
expert opinion. The objection is well taken and sustained. But it is beyond
dispute that, while the cited radiology reports did not go so far as to
conclude that there was no injury at all, each of the reports concluded
with the impression that there was “[n]o radiographic evidence of an
acute fracture.”
12 In support of this fact statement, the defendants have cited to a
cell search record that documents that the searches occurred, as well as
testimonial affidavits by defendants Stover and Crawford, which
reference the cell search record in support of their testimonial
declarations, based on their personal knowledge, that the searches
occurred. The plaintiff has objected to this fact statement with reference
to Rule 56(d), arguing that the statement cannot be admitted or denied
without additional discovery concerning the materials cited by the
defendants in support of the statement, namely a Rule 30(b)(6) deposition
of an unspecified deponent, presumably the non-party state department
(continued on next page)
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meeting beforehand where instructions were provided to the search
of corrections.
When a party opposing summary judgment “shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to
justify its opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d).
A party moving for additional discovery under Rule 56(d) must submit an
affidavit or declaration explaining “what particular information is
sought; how, if uncovered, it would preclude summary judgment; and why
it has not previously been obtained.” Pa. Dep’t of Pub. Welfare v. Sebelius,
674 F.3d 139, 157 (3d Cir. 2012). The plaintiff has failed to submit any
such affidavit or declaration. Moreover, the plaintiff has not explained
why he was unable to obtain the requested discovery—whether by the
deposition of a corrections department 30(b)(6) witness or the deposition
of the defendants themselves, who are clearly familiar with this record—
during the discovery period, which is now closed. See Banks v. City of
Philadelphia, 309 F.R.D. 287, 292 (E.D. Pa. 2015) (“[Rule 56(d)] is not
intended to protect those who have had an opportunity to complete
discovery but who failed to do so by their own lack of diligence.”).
Accordingly, the plaintiff ’s objection to this fact statement is overruled.
In addition to his objection, the plaintiff has cited a portion of his
own affidavit as evidence of a genuine dispute of material fact. See Resp.
Statement of Material Facts ¶ 38, Doc. 28. Most of the cited portions of
the affidavit do not contradict the defendants’ fact statement or the
Stover and Crawford affidavits. See Travillion Aff. ¶¶ 5–10, Doc. 29. The
remaining paragraph cited by the plaintiff states that another inmate
told Travillion that he heard one unidentified corrections officer instruct
another unidentified officer to “make sure you tear[ ]up Travillion’s
lawyer shit real good” when several officers were meeting in a shower
area just before searching Travillion’s cell. Travillion Aff. ¶ 11. The
defendants have objected to this statement as inadmissible hearsay.
Reply Br. 6, Doc. 30. The objection is well taken and sustained.
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team.13 Travillion was not a part of that meeting, nor was he close enough
to hear the discussion.14 Stover and Crawford did not instruct any staff
to harass or destroy any of Travillion’s property. 15 Stover and Crawford
did not personally destroy any of Travillion’s property, nor are they aware
of any of his property being destroyed. 16 Travillion’s grievances were not
The plaintiff has admitted this fact statement, but his response
includes additional exposition, including reference to the inadmissible
hearsay statement relayed to Travillion by another inmate, see supra
note 12, and to unsworn statements he himself made in Grievance No.
897483, see supra note 9.
14 In support of this fact statement, the defendants have cited to the
testimonial affidavits of Stover and Crawford, based on their personal
knowledge. In response, the plaintiff has once again cited a portion of his
own affidavit describing an inadmissible hearsay statement relayed to
him by another inmate. See supra note 12. The plaintiff further contends
that this is a legal argument or conclusion requiring him to neither admit
nor deny the statement. The plaintiff is mistaken: it is a statement of
fact, which is deemed admitted in the absence of any citation to
competent evidence demonstrating a genuine dispute of material fact.
15 See supra note 14.
16 In support of this fact statement, the defendants have cited to the
testimonial affidavits of Stover and Crawford, based on their personal
knowledge. In response, the plaintiff has simply stated that “[t]his fact is
disputed” and that the testimonial statements by Stover and Crawford
“require credibility determinations by a jury.” The plaintiff has cited no
evidence contradicting this fact statement or the underlying evidence.
Therefore, this factual statement is deemed admitted. See M.D. Pa. L.R.
56.1; DiMarco v. Borough of Saint Clair, No. 20-CV-1335, 2022 WL
6685296, at *3 n.4 (M.D. Pa. July 19, 2022); Marshall v. Corbett, No. 13CV-2961, 2022 WL 875609, at *10 (M.D. Pa. Mar. 23, 2022).
13
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a factor in deciding whether to search his cell. 17 Rather, the decision to
search Travillion’s cell was part of maintaining security in the prison by
periodically locking down and searching the housing units for
contraband. 18
III.
DISCUSSION
A. Conceded Claims Against Harry and Burns
The plaintiff has expressly conceded that all claims against the
secretary of corrections, defendant Harry, should be dismissed. See Opp’n
Br. 1 (“Travillion consents to the dismissal of [the secretary of
corrections].”), Doc. 27. The plaintiff has further conceded that his § 1981
racial discrimination claim against defendant Burns should be
dismissed. See id. at 6 (“Travillion does not oppose Burns’[s] dismissal
under this [§ 1981] theory[.]”). Under these circumstances, we find that
the plaintiff has waived these claims against these two defendants,
In support of this fact statement, the defendants have cited to the
testimonial affidavits of Stover and Crawford, based on their personal
knowledge. In response, the plaintiff contends that this is a legal
argument or conclusion requiring him to neither admit nor deny the
statement. The plaintiff is mistaken: it is a statement of fact, which is
deemed admitted in the absence of any citation to competent evidence
demonstrating a genuine dispute of material fact.
18 See supra note14.
17
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entitling them to summary judgment. See Rife v. Borough of Dauphin,
647 F. Supp. 2d 431, 441–42 (M.D. Pa. 2009).
Accordingly, summary judgment will be granted in favor of
defendant Harry with respect to all claims, and in favor of defendant
Burns with respect to the plaintiff ’s § 1981 racial discrimination claim
against him, set forth in Count II of the complaint.
B. Exhaustion of Administrative Remedies
The defendants argue that they are entitled to summary judgment
on the plaintiff ’s § 1981 racial discrimination claims and § 1985
conspiracy to interfere with civil rights claim against Lose because
Travillion failed to exhaust available administrative remedies. 19
But, “[a]lthough the prison grievance policy directs an inmate to
The heading of this section of argument indicates that they also
seek summary judgment on these grounds with respect to any portion of
the plaintiff ’s § 1983 First Amendment retaliation claims against Stover
and Crawford that are based on verbal threats. The body of the
defendants’ argument, however, makes no mention of these claims,
discussing only the § 1981 and § 1985 claims against Lose. See Supp. Br.
15–16 (“Nowhere does Plaintiff specifically state a claim for section 1981
or 1985 violations in grievances 884391 and 885654. . . . Plaintiff ’s failure
to state facts and make a claim that these moving Defendants denied full
and equal benefits or conspired should be fatal to these claims.”), Doc. 22.
Therefore, we find that the defendants have waived any intended
argument that the plaintiff ’s § 1983 retaliation claims are unexhausted
to the extent that they are based on verbal threats.
19
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‘specifically state any claims he/she wishes to make concerning violations
of [DOC] directives, regulations, court orders, or other law[,’] it does not
require an inmate to identify all of the specific legal theories that might
apply to the facts alleged in his or her grievance.” Beenick v. Lefebvre,
No. 14-cv-01562, 2016 WL 5402249, at *8 (M.D. Pa. July 29, 2016)
(citation omitted), report & recommendation adopted by 2016 WL
5376120 (M.D. Sept. 26, 2016), aff ’d, 684 Fed. App’x 200 (3d Cir. 2017);
see also id. at *8 n.6. “As long as there is a shared factual basis between
the two, perfect overlap between the grievance and a complaint is not
required by the PLRA.” Jackson v. Ivens, 244 Fed. App’x 508, 513 (3d Cir.
2007) (per curiam).
Here, there is clearly a shared factual basis between Travillion’s
first grievance, Grievance No. 884391, and his complaint with respect to
his § 1981 racial discrimination claims against Lose. Whether he wrote
the magic words “Section 1981,” “full and equal benefits,” or “racial
discrimination” in his grievance is immaterial. Likewise, there is clearly
a shared factual basis between Travillion’s third grievance, Grievance
No. 897483, and his complaint with respect to his § 1985 conspiracy to
interfere with civil rights claim against Lose. Although Lose is not
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identified by name in the third grievance, Travillion clearly articulated
his claim that the actions of other corrections officers during the cell
search on October 14, 2020, were done in retaliation for his prior
grievance, Grievance No. 884391, against Lose.
Accordingly, we find that Travillion exhausted all available
administrative remedies prior to filing this action, and we turn to the
merits of his remaining claims.
C. Eighth Amendment Excessive Force Claim
In Count I, Travillion asserts a § 1983 claims for damages against
Lose for the use of excessive force in violation of his Eighth Amendment
right to be free from cruel and unusual punishment.
The Eighth Amendment protects prisoners from cruel and unusual
punishment, including “the unnecessary and wanton infliction of pain.”
Hudson v. McMillian, 503 U.S. 1, 5 (1992). To prevail on an Eighth
Amendment claim, an inmate must show: (1) a deprivation that is
objectively sufficiently serious; and, (2) “a sufficiently culpable state of
mind” of the defendant official. Farmer v. Brennan, 511 U.S. 825, 834
(1994).
An Eighth Amendment challenge asserting excessive force is
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subject to a malicious and sadistic standard. See Zimmerman v.
Schaeffer, 654 F. Supp. 2d 226, 247 (M.D. Pa. 2009) (citing Hudson, 503
U.S. at 6–7). The inquiry under this standard is whether prison officials
applied force “in a good faith effort to maintain or restore discipline, or
maliciously and sadistically for the very purpose of causing harm.”
Hudson, 503 U.S. at 7.
As noted in the fact summary above, it is undisputed that Lose did
not close the cell door on Travillion’s leg and foot, as the plaintiff had
alleged in his complaint. In the absence of any use of force against the
plaintiff whatsoever—much less any malicious and sadistic use of force
for the very purpose of causing harm—this defendant is entitled to
judgment as a matter of law on this claim.
Accordingly, summary judgment will be granted in favor of
defendant Lose with respect to the plaintiff ’s Eighth Amendment
excessive force claim against him, set forth in Count I of the complaint.
D. Eighth Amendment Deliberate Indifference Claim
In Count II, Travillion asserts § 1983 claims for damages against
Lose and Burns for deliberate indifference to his serious medical needs
in violation of his Eighth Amendment right to be free from cruel and
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unusual punishment.
“To demonstrate a prima facie case of cruel and unusual
punishment based on the denial of medical care, a plaintiff must
establish that defendants acted ‘with deliberate indifference to his or her
serious medical needs.’” Montgomery v. Pinchak, 294 F.3d 492, 499 (3d
Cir. 2002) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
As noted in the fact summary above, it is undisputed that Travillion
did not ask Lose or Burns for medical attention, and that Lose and Burns
did not deny medical treatment to Travillion. Lose and Burns simply
could not act with deliberate indifference if they were not aware that
Travillion needed or desired medical attention. See Boomer v. Lewis, 541
Fed. App’x 186, 192–93 (3d Cir. 2013) (per curiam) (noting that prison
officials could not be deliberately indifferent to an inmate’s serious
medical needs when they did not know of those needs); Medina v. Little,
No. 23-886, 2023 WL 8027154, at *6 (E.D. Pa. Nov. 20, 2023) (“Ms. Woods
could not have acted with deliberate indifference if she was not aware of
Mr. Medina’s medical needs.”); Mrlack v. Cal. Univ. of Pa., No. 17-1211,
2019 WL 1790713, at *7 (W.D. Pa. Apr. 24, 2019) (finding defendants
“could not have been deliberately indifferent to [plaintiff ’s] serious
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medical needs, because they were not aware of his needs”); Prinkey v.
Tennis, No. 09-CV-0052, 2010 WL 3025145, at *3 (M.D. Pa. July 29, 2010)
(“A defendant cannot be deliberately indifferent to a serious medical need
if he is not aware that a serious medical need exists.”).
Moreover, superficial injuries, such as abrasions, swelling, minor
bleeding, and minor fractures, do not rise to the level of serious medical
needs. See Lucas v. Warden Lewisburg USP, 573 Fed. App’x 205, 208 (3d
Cir. 2014) (per curiam); Wyatt v. Malisko, No. 16-cv-01438, 2020 WL
3001936, at *11 (M.D. Pa. Mar. 19, 2020) (collecting cases). Medical
treatment records in the summary judgment record document that, when
he presented for medical treatment ten days later, he complained of pain
but denied redness or swelling. On examination, a nurse found
tenderness without inflammation, and she noted that Travillion’s injured
leg and foot were “[f]ull [w]eight-bearing.” The nurse observed a
“superficial” one-half-inch “old discoloration” at the injury site. Travillion
was given over-the-counter strength painkillers, instructed to rest and
ice his injured limb, and sent for x-rays. Defs.’ Ex. H, Doc. 24-8. See
generally Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited
materials, but it may consider other materials in the record.”). As noted
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in the fact summary above, it is undisputed that the x-rays revealed no
acute fracture in Travillion’s leg, ankle, or foot.
In the absence of any evidence that the defendants were
subjectively aware of Travillion’s alleged medical needs, that they refused
any request for medical attention, or that Travillion suffered anything
more than a superficial injury, these defendants are entitled to judgment
as a matter of law on this claim.
Accordingly, summary judgment will be granted in favor of
defendants Lose and Burns with respect to the plaintiff ’s Eighth
Amendment deliberate indifference to serious medical needs claims
against them, set forth in Count II of the complaint.
E. Section 1981 Racial Discrimination Claim
In Counts I and II, Travillion asserts § 1983 claims for damages
against Lose for racial discrimination in violation of § 1981, based on the
very same alleged use of force and denial of medical care that form the
basis of his Eighth Amendment excessive force and deliberate
indifference claims. 20 Travillion claims that racially discriminatory
We note that § 1981 itself does not provide a private right of
action to enforce the rights guaranteed therein against state actors, but
20
(continued on next page)
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conduct by Lose denied Travillion the full and equal benefit of the laws
as is enjoyed by white persons, and inflicted punishment and penalties
beyond those to which white persons are subject.
Section 1981 was enacted to “protect[] against discrimination on the
basis of race or alienage.” Bell v. City of Milwaukee, 746 F.2d 1205, 1232
(7th Cir. 1984), overruled on other grounds by Russ v. Watts, 414 F.3d 783
(7th Cir. 2005). The statute provides that:
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory
to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws
and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981(a).
“To establish a right to relief under § 1981, a plaintiff must show
(1) that he belongs to a racial minority; (2) ‘an intent to discriminate on
the basis of race by the defendant; and (3) discrimination concerning one
it has been held that § 1983 provides a vehicle for seeking a remedy
against state actors for an infringement of § 1981 rights. See Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 731, 735 (1989); McGovern v. City
of Philadelphia, 554 F.3d 114, 116 (3d Cir. 2009) (“[W]hile § 1981 creates
rights, § 1983 provides the remedy to enforce those rights against state
actors.”).
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or more of the activities enumerated in § 1981 . . . .’” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 569 (3d Cir. 2002). “Section 1981
is not confined to contractual matters, though it is most often invoked in
that context. It deals with the protection of a limited range of civil rights,
including the right to make and enforce contracts, to sue, and to give
evidence.” Bell, 746 F.2d at 1232 (citation omitted). It also guarantees a
right to equal benefit of the laws and to like punishment, irrespective of
race. See Mahone v. Waddle, 564 F.2d 1018, 1027–28 (3d Cir. 1977); Grier
v. Galinac, 740 F. Supp. 338, 341–43 (M.D. Pa. 1990) (addressing § 1981
claim that plaintiff would not have been stopped and questioned by police
defendants if he had been white).
“To prevail on a claim under 42 U.S.C. § 1981, the plaintiff must
present evidence of the defendant’s discriminatory intent, as that section
reaches only purposeful discrimination.” See Taylor v. City of St. Louis,
702 F.2d 695, 697 (8th Cir. 1983) (per curiam). Standing alone, the mere
fact that, during a single encounter with a black inmate, Lose allegedly
struck him with a cell door and ignored his request for medical evaluation
is insufficient to prove discriminatory intent under § 1981. See Romero v.
Tobyhanna Twp., No. 19-cv-01038, 2021 4149189, at *8 (M.D. Pa. Sept.
- 23 -
13, 2021). Travillion has failed to adduce any evidence that similarly
situated white inmates have been treated differently, nor has he adduced
any other evidence that defendant Lose was motivated by race-based
animus. 21 See Romero, 2021 4149189, at *8; Ilori v. Carnegie Mellon
Univ., 742 F. Supp. 2d 734, 757 (W.D. Pa. 2010) (granting summary
judgment against § 1981 plaintiff who provided no evidence of overtly
racial comments or conduct by the defendants); Dennis v. Thurman, 959
F. Supp. 1253, 1263 (C.D. Cal. 1997) (granting summary judgment
against § 1981 plaintiff who presented no evidence that the defendants
were motivated by race-based animus); Barr v. Hardiman, 583 F. Supp.
1, 7 (N.D. Ill. 1982) (dismissing § 1981 claims where inmate-plaintiff
failed to allege facts to show that he was treated differently than
similarly situated white prisoners).
Moreover, as noted in the fact summary above, it is undisputed that
Lose did not close the cell door on Travillion’s foot or leg, that Travillion
did not ask Lose for medical attention, and that Lose did not deny medical
treatment to Travillion.
In his opposition brief, the plaintiff argues that Lose made
racially derogatory statements shortly before the incident, but he fails to
cite any competent evidence to support this allegation. See supra note 9.
21
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Accordingly, summary judgment will be granted in favor of
defendant Lose with respect to the plaintiff ’s § 1981 racial discrimination
claims, set forth in Counts I and II of the complaint.
F. Section 1985 Civil Rights Conspiracy Claim
In Count III, Travillion asserts a § 1985(3) claim for damages
against Lose, Stover, and Crawford for conspiracy to interfere with civil
rights in violation of § 1985(3), arising out of an October 14, 2020, cell
search, in which some of Travillion’s legal papers were taken and
destroyed.
“Section 1985 proscribes either public or private conspiracies to
deprive persons of constitutionally protected rights.” Rogers v. Mount
Union Borough ex rel. Zook, 816 F. Supp. 308, 314 (M.D. Pa. 1993).
The elements of such a cause of action are: 1) a
conspiracy; 2) motivated by racial or class-based
discriminatory animus designed to deprive, directly or
indirectly, any person or class of persons of the equal
protection of the laws; 3) an act in furtherance of the
conspiracy; and 4) an injury to person or property or
the deprivation of any right or privilege of a citizen of
the United States.
Strickland v. Mahoning Twp., 647 F. Supp. 2d 422, 430 (M.D. Pa. 2009)
(citing Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997)).
With respect to the first element, Travillion has failed to adduce any
- 25 -
evidence of a conspiracy. “To constitute a conspiracy, there must be a
‘meeting of the minds.’” Startzell v. City of Philadelphia, 533 F.3d 183,
205 (3d Cir. 2008) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158
(1970)). Without more, the mere fact that Stover and Crawford met with
other corrections officers prior to searching the cells of Travillion and
other inmates does not prove a meeting of the minds or conspiracy. See
Jones v. Dalton, 867 F. Supp. 2d 572, 585 (D.N.J. 2012) (“Without more,
several meetings do not prove a conspiracy.”) (emphasis added); Adams v.
Selhorst, 779 F. Supp. 2d 378, 394 (D. Del. 2011) (“In the absence of any
evidence that there was a meeting of the minds to achieve the alleged
conspiracy’s objectives, however, [a plaintiff] is not entitled to an
inference that her bare allegations create an issue of material fact for
trial.”).22 We further note that the plaintiff has pointed to no evidence
whatsoever to suggest any involvement by Lose in the cell search
activities on October 14, 2020, or any conspiratorial agreement with the
In his opposition brief, the plaintiff argues that certain comments
by an unidentified corrections officer, allegedly overheard by another
inmate and relayed to the plaintiff, suggest a meeting of the minds to
“tear up” Travillion’s “lawyer shit,” but, as previously noted, the plaintiff
has failed to cite any competent evidence to support this allegation. See
supra note 12. The plaintiff also cites his own unsworn statements made
in an inmate grievance, which are inadmissible. See supra notes 9, 13.
22
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others.
Moreover, with respect to the second element, Travillion has failed
to adduce any evidence of racial or class-based discriminatory animus
behind the defendants’ alleged conduct. He has failed to proffer any
evidence whatsoever that Stover or Crawford conspired against
Travillion based on his race, and he has failed to proffer any competent
evidence that Lose did so either.23
Accordingly, summary judgment will be granted in favor of
defendants Lose, Stover, and Crawford with respect to the plaintiff ’s
§ 1985(3) conspiracy to interfere with civil rights claims, set forth in
Count III of the complaint.
G. Section 1983 First Amendment Retaliation Claim
In Count III, Travillion asserts a § 1983 claim for damages against
Lose, Stover, and Crawford for First Amendment retaliation, arising out
of an October 14, 2020, cell search, in which some of Travillion’s legal
papers were taken and destroyed.
The plaintiff apparently contends that Lose was motivated by
racial animus, based on racially derogatory statements he allegedly made
months earlier on July 31, 2020, but the plaintiff fails to cite any
competent evidence to support this allegation. See supra note 21.
23
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To establish a § 1983 retaliation claim, a plaintiff must show:
(1) constitutionally protected activity; (2) retaliatory action sufficient to
deter a person of ordinary firmness from exercising her constitutional
rights; and (3) a causal link between the constitutionally protected
activity and the retaliatory action. See Thomas v. Indep. Twp., 463 F.3d
285, 296 (3d Cir. 2006); Baker v. Benton Area Sch. Dist., 418 F. Supp. 3d
17, 48 (M.D. Pa. 2019).
First, it is beyond dispute that the filing of an inmate grievance
constitutes constitutionally protected conduct. Travillion filed his first
inmate grievance, Grievance No. 884391, against Lose and Burns on
August 18, 2020. He filed his second inmate grievance, Grievance No.
885654, against Stover on August 25, 2020. See Kelly v. York Cty. Prison,
340 Fed. App’x 59, 61 (3d Cir. 2009) (per curiam) (“The filing of grievances
is protected under the First Amendment.”).
Second, the Third Circuit and this court have previously recognized
that a retaliatory cell search that results in the confiscation or
destruction of property may satisfy the adverse action element of a § 1983
retaliation claim. See Humphrey v. Sec’y Pa. Dep’t of Corr., 712 Fed.
App’x 122, 125 (3d Cir. 2017) (per curiam) (“[A] retaliatory search and
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seizure may be sufficient to satisfy this prong of the claim.”); Rosario v.
Cook, No. 22-0866, 2024 WL 1077320, at *3 (M.D. Pa. Mar. 12, 2024);
Hernández-Tirado v. Lowe, No. 14-1897, 2017 WL 34433690, at *10 (M.D.
Pa. Aug. 10, 2017). 24
The plaintiff ’s retaliation claim, however, founders at the third
element, causation.
Causation may be proved in various ways. A showing
of “unusually suggestive” temporal proximity between
the protected activity and the adverse action can be
sufficient. A plaintiff also can prove causation, despite
a lack of suspicious temporal proximity, by coming
forward with evidence of a pattern of antagonistic
conduct against the plaintiff subsequent to his
protected conduct. Lastly, the plaintiff can seek to
prove causation by pointing to the record as a whole for
The parties’ briefs also discuss the plaintiff ’s allegation that
Stover verbally threatened Travillion when they met in August 2020 in
an attempt to intimidate him into withdrawing his grievance against
Lose. Although it is undisputed that Stover interviewed Travillion in the
course of his investigation of the plaintiff ’s first grievance, Grievance No.
884391, the plaintiff has failed to adduce any competent evidence to
support the allegation in his complaint and his second grievance,
Grievance No. 885654. The plaintiff relies solely on unsworn statements
in his grievance papers, which are not competent evidence on summary
judgment. See supra note 9. In any event, verbal threats alone do not
constitute adverse action for purposes of establishing a prima facie
retaliation claim. See Chruby v. Kowaleski, 534 Fed. App’x 156, 161 (3d
Cir. 2013); Dunbar v. Barone, 487 Fed. App’x 721, 723 (3d Cir. 2012) (per
curiam); Burgos v. Canino, 358 Fed. App’x 302, 306 (3d Cir. 2009) (per
curiam); Bartelli v. Bleich, No. 04-0899, 2005 WL 2347235, at *3 (M.D.
Pa. Sept. 26, 2005).
24
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evidence that suggests causation.
Schlegel v. Koteski, 307 Fed. App’x 657, 661–62 (3d Cir. 2009) (citations
omitted) (citing Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 369
(3d Cir. 2008), Woodson v. Scott Paper Co., 109 F.3d 913, 920–21 (3d Cir.
1997), and Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir.
2000)).
The defendants argue that there is insufficient temporal proximity
between the plaintiff ’s protected activity and the alleged retaliatory
conduct. Their argument is well taken. In the absence of any other
corroborative evidence, “the timing of the alleged retaliatory action must
be ‘unusually suggestive’ of retaliatory motive before a causal link will be
inferred.” Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003).
Generally, “temporal proximity should be measured in days, rather than
in weeks or months, to suggest causation without corroborative
evidence.” Diede v. City of McKeesport, 654 F. Supp. 2d 363, 377 (W.D.
Pa. 2009). Here, Travillion submitted his constitutionally protected
inmate grievances on August 18 and August 25, 2020. The allegedly
retaliatory cell search and destruction of his legal papers occurred on
October 14, 2020, more than seven weeks later. See Farrell, 206 F.3d at
- 30 -
279 n.6 (suggesting that temporal proximity of seven weeks was
insufficient to establish causation); Conklin v. Warrington Twp., No. 06CV-2245, 2008 WL 2704629, at *12 (M.D. Pa. July 7, 2008) (two-month
temporal relationship, without more, is insufficient to establish
causation); Smith v. ABF Freight Sys., Inc., No. 04-CV-2231, 2007 WL
3231969, at *11 (M.D. Pa. Oct. 29, 2007) (finding temporal proximity of
one-and-a-half months was not unduly suggestive of retaliatory motive).
In his opposition brief, Travillion appears to argue that his
interview with Stover—which occurred in August, during the one-week
period between Travillion’s August 18 and 25 grievances—constitutes an
intervening pattern of antagonistic conduct that bridges the gap between
his grievances and the allegedly retaliatory cell search and destruction of
his property.25 But, as we have previously and repeatedly noted, the
plaintiff has failed to adduce competent evidence to support his
allegations of improper conduct with respect to this encounter.26
The plaintiff also points to the meeting between Stover, Crawford,
and other officers prior to searching his cell, but that event was
contemporaneous with the cell search itself. We have taken it into
account below in our consideration of the whole record.
26 It is undisputed that Stover interviewed Travillion in his office,
but there is no competent evidence of any verbal threat, intimidation, or
other antagonistic conduct. See supra note 24.
25
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Moreover, a single instance of antagonism is insufficient to bridge the gap
and provide a causal link. See McLaughlin v. Int’l Bhd. of Teamsters,
Local 249, 641 F. Supp. 3d 177, 208 (W.D. Pa. 2022) (“[A] single instance
of antagonism is generally insufficient to show causation.”); Washco v.
Fed. Express Corp., 402 F. Supp. 2d 547, 560 (E.D. Pa. 2005) (“One act
does not constitute a ‘pattern’ of antagonism.”).
Finally, Travillion appears to also argue that the record as a whole
suggests causation. In addition to the alleged verbal threats by Stover—
an allegation not supported by any competent evidence—Travillion
suggests that the “perfunctory” manner in which the cell search was
conducted and the meeting by Stover, Crawford, and other officers just
before searching Travillion’s cell, at which an unidentified corrections
officer allegedly instructed another to “tear up” Travillion’s “lawyer shit.”
But the plaintiff has failed to adduce any competent evidence to support
this allegation. 27 Indeed, it is undisputed that Travilion’s cell was
searched along with other inmate cells on the same unit. It is undisputed
that Stover and Crawford were part of a meeting beforehand where
instructions were provided to the search team, but Travillion was not a
27
See supra notes 12–18, 22.
- 32 -
part of that meeting, nor was he close enough to hear the discussion. It
is undisputed that Stover and Crawford did not instruct any other staff
to harass Travillion or destroy his property, they did not personally
destroy any of Travillion’s property, nor are they aware of any of his
property being destroyed. It is undisputed that Travillion’s grievances
were not a factor in deciding whether to search his cell, but rather, the
decision to search Travillion’s cell was part of maintaining security in the
prison by periodically locking down and searching the housing units for
contraband. Based on our consideration of the whole record, we are
unable to find sufficient evidence from which to infer causation.
Accordingly, summary judgment will be granted in favor of
defendants Lose, Stover, and Crawford with respect to the plaintiff ’s
§ 1983 First Amendment retaliation claims, set forth in Count III of the
complaint.
IV.
CONCLUSION
For the foregoing reasons, the defendants’ motion for summary
judgment will be granted, and the clerk will be ordered to enter judgment
in favor of the defendants and against the plaintiff with respect to all
claims.
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An appropriate order follows.
Dated: March 26, 2024
s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
Chief United States Magistrate Judge
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