Lawyer v. State of Vermont - Department of Public Safety et al
RULING granting in part and denying in part 21 Motion to Dismiss. Count Two is dismissed in its entirety; Counts Four and Five and the state law IIED claim are dismissed as to Defendants Patnode and Rolandini; and the state law NIED claim is dismi ssed in its entirety. The remaining claims are for false arrest (Count One); malicious prosecution (Count Three); and abuse of process (Count Four), falsification of evidence, under the Fourth Amendment (Count V) and IIED under state law, against Defendant Cota. Signed by District Judge J. Garvan Murtha on 6/14/2017. (kak)
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
DREW COTA; BEN PATNODE;
and DEREK ROLANDINI, in their
individual capacities as Troopers for
the Vermont State Police,
File No. 1:16-cv-62-jgm
RULING ON DEFENDANTS’ MOTION TO DISMISS
Plaintiff Ryan Lawyer sues Drew Cota, Ben Patnode, and Derek Rolandini, in their
individual capacities as Vermont State Police (“VSP”) Troopers. (Doc. 18 (“Am. Compl.”).)
Lawyer asserts claims of false arrest, failure to adequately investigate, malicious prosecution, abuse
of process, and deprivation of liberty without due process, under 42 U.S.C. § 1983 and Vermont
state law, and intentional infliction of emotional distress and negligent infliction of emotional
distress, under Vermont state law. Id. ¶¶ 31-55. Accordingly, jurisdiction is based on the existence
of a federal question. Id. ¶ 1. The claims arise out of Lawyer’s arrest and prosecution for drug
possession. Lawyer seeks a declaratory judgment, compensatory and punitive damages, and
attorney’s fees. Id. at 13. The Defendants move to dismiss the amended complaint for lack of
subject matter jurisdiction and failure to state a claim under Federal Rule of Civil Procedure 12(b)(1)
and (6). (Doc. 21.) Lawyer filed a response to the motion (Doc. 22) and Defendants filed a reply
(Doc. 23). Lawyer also filed a sur-reply. (Doc. 24.) For the reasons discussed below, the motion to
dismiss is granted in part and denied in part.
The following facts are assumed to be true for purposes of the pending motions and are
gleaned from the complaint. On June 27, 2014, Lawyer, a resident of East Fairfield, was arrested for
impeding a public officer and disorderly conduct after failing to heed Trooper Cota’s orders to
remain in the stopped vehicle in which Lawyer was a passenger. Lawyer, who was intoxicated, was
lodged at the VSP barracks in St. Albans in a holding cell equipped with functional audio and video
surveillance cameras. Trooper Cota later stated under oath that the holding cell in which Lawyer
was placed was “clean,” i.e. had been searched for contraband and none was found.
While handcuffed to the wall and sitting on a bench in the cell, Lawyer noticed an object
“previously placed in a portion of the sink.” (Compl. ¶ 15.) He dislodged and opened it with his
foot, spilling approximately 100 bags of heroin onto the floor of the holding cell. Lawyer lost
interest and laid down on the bench. Trooper Rolandini later briefly entered the cell, observing
Lawyer asleep and the heroin bags on the floor. Trooper Rolandini returned to the cell with
Troopers Cota and Patnode, roused Lawyer and the troopers inquired about the heroin. A stillintoxicated Lawyer replied unintelligibly. In an affidavit in support of the charge, Trooper Cota
falsely averred Lawyer admitted to concealing the heroin in his shoe and that the holding cell was
“clean.” The Defendants held Lawyer on suspicion of felony possession of heroin and contacted
the state court regarding setting felony bail. Lawyer’s bail was increased from $500 to $10,000,
resulting in his family paying an $1100 non-refundable commission fee to a bail bondsman.
The Franklin County State’s Attorney’s office charged Lawyer with two felonies, impeding a
public officer and possession of heroin, and a misdemeanor count of unlawful mischief. Lawyer
alleges there was no probable cause to initiate the criminal proceeding. (Compl. ¶¶ 21, 24, 39.) He
further alleges the VSP has rules and regulations regarding the use and maintenance of video and
audio recording equipment that Defendants were required to adhere to, however, they did not
review the recordings from the cell. Id. ¶¶ 13, 22. He was arraigned on June 30, 2014. Based on a
VSP press release, local media reported Lawyer had been arrested on these charges resulting in
severe damage to his reputation, including almost losing his longstanding employment. Lawyer was
released from custody on July 1, 2014. On July 10, the State’s Attorney dismissed the heroin
Lawyer alleges the Troopers violated his constitutional rights and the laws of the state of
Vermont. In Count One, Lawyer alleges the Troopers negligently, recklessly, or with gross
negligence caused him to be falsely arrested. (Compl. ¶¶ 31-32.) In Count Two, Lawyer alleges the
Troopers failed to properly investigate the alleged criminal act, including reviewing the “procedurally
mandated audio and video recording” of the holding cell. Id. ¶¶ 33-36. In Count Three, he alleges
the Troopers subjected him to malicious prosecution because there was no probable cause to initiate
the criminal proceeding charging him with possession of heroin. Id. ¶¶ 37-41. In Count Four, he
alleges the Troopers used legal process to retaliate against him. Id. ¶¶ 42-44. In Count Five, Lawyer
alleges the Troopers violated his right to be free from felony charges in the absence of probable
cause without due process of law. Id. ¶¶ 45-48. Lawyer further alleges state law claims of
intentional and negligent infliction of emotional distress. Id. ¶¶ 49-55.
Standard of Review
A court should grant a Rule 12(b)(1) motion to dismiss if it is not authorized by statute or
the Constitution to adjudicate the plaintiff’s claims. See Makarova v. United States, 201 F.3d 110,
113 (2d Cir. 2000). The plaintiff bears the burden of proving subject matter jurisdiction by a
preponderance of the evidence. Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007).
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal rather than
the factual sufficiency of a complaint. See, e.g., Sims v. Ortiz, 230 F.3d 14, 20 (2d Cir. 2000). The
Court will grant a motion to dismiss only if the pleader fails to show a “plausible entitlement to
relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). On both Rule 12(b)(1) and Rule
12(b)(6) motions, the Court must “accept all of the plaintiff’s factual allegations in the complaint as
true and draw inferences from those allegations in the light most favorable to the plaintiff.”
Seemann v. U.S. Postal Serv., No. 2:11-cv-206, 2012 WL 1999847, at *1 (D. Vt. June 4, 2012)
(quoting Starr v. Georgeson S’holder, Inc., 412 F.3d 103, 109 (2d Cir. 2005)). Though the court
must accept as true all factual allegations, this requirement “is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[T]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.; see also Turkmen v. Hasty,
789 F.3d 218, 233 (2d Cir. 2015).
“[A] defendant presenting an immunity defense on a Rule 12(b)(6) motion instead of a
motion for summary judgment must accept the more stringent standard applicable to this procedural
route.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004).
42 U.S.C. § 1983
Section 1983 is not a source of substantive rights but is “a method for vindicating federal
rights elsewhere conferred.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To
state a claim under § 1983, a plaintiff must allege the deprivation of a right, privilege, or immunity
secured by the Constitution or laws by a person acting under color of state law. 42 U.S.C. § 1983.
The threshold inquiry in a § 1983 suit requires a court to “identify the specific constitutional
right” at issue. Albright v. Oliver, 510 U.S. 266, 271 (1994). A claim challenging pretrial detention
falls within the scope of the Fourth Amendment. Gerstein v. Pugh, 420 U.S. 103, 114 (1975)
(holding a pretrial restraint on liberty is unlawful unless a judge first makes a reliable finding of
probable cause). An objection to a pretrial deprivation of liberty may invoke the Fourth
Amendment when the deprivation occurs after legal process commences because pretrial detention
can violate the Fourth Amendment both when it precedes and when it follows the start of legal
process in a criminal case. Manuel v. City of Joliet, 137 S. Ct. 911, 918 (2017). Plaintiffs can, subject
to qualified immunity, recover damages that are proximately caused by a Fourth Amendment
violation. See, e.g., Heck v. Humphrey, 512 U.S. 477, 483 (1994). The Court, however, must
determine the elements of an action seeking damages for a violation. Manuel, 137 S. Ct. at 920
(citing Carey v. Piphus, 435 U.S. 247, 257-58 (1978)).
A claim for false arrest under § 1983 requires a plaintiff to show that “(1) the defendant
intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not
consent to the confinement and (4) the confinement was not otherwise privileged.” Ackerson v.
City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012). A false arrest action is substantially similar
under Vermont law. Connary v. Field, No. 12-276, slip op. at 3 (Vt. Feb. 14, 2013) (requiring proof
the defendant “intended to confine plaintiff without plaintiff’s consent, and that confinement was
not otherwise privileged.”). “A § 1983 claim of false arrest based on the Fourth Amendment right
to be free from unreasonable seizures may not be maintained if there was probable cause for the
arrest.” Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2000) (holding dismissal on summary
judgment proper when plaintiff could not show he was arrested without probable cause).
Lawyer’s complaint alleges he was detained and confined for four days on charges for which
there was no probable cause. At the motion to dismiss stage, these allegations are sufficient to state
a claim for false arrest. Defendants respond that a state court judge determined there was probable
cause. The Court will not resolve this factual dispute at this stage in the litigation in light of
Lawyer’s allegations of false statements in the affidavit(s) provided to the judge. See Lay v.
Pettengill, 38 A.3d 1139, 1147 (Vt. 2011) (noting a plaintiff can challenge a trial court’s probable
cause determination by presenting “a plausible suggestion that the finding of probable cause would
not have been reached were it not for some irregularity or impropriety”). Defendants motion to
dismiss Lawyer’s claim of false of arrest (Count One) is denied.
Failure to Adequately Investigate
This Court has recently declined to find a duty exists under Vermont law to conduct a
reasonable criminal investigation. Simuro v. Shedd, 176 F. Supp. 3d 358, 374 (D. Vt. 2016). The
Second Circuit does not recognize a cause of action for failure to investigate under the Due Process
Clause of the Constitution. Grega v. Pettengill, 123 F. Supp. 3d 517, 536 (D. Vt. 2015) (noting “the
Second Circuit has yet to recognize a claim that a state officer’s reckless failure to investigate all
aspects of a crime violates the due process rights of the accused”).
The Second Circuit does recognize a civil claim for the “mishandling or suppression of
exculpatory evidence,” requiring proof “(1) that [plaintiff] has a right to be free from continued
detention stemming from law enforcement officials’ mishandling or suppression of exculpatory
evidence, (2) that the actions of the officers violated that right; and (3) that the officers’ conduct
shocks the conscience.” Russo v. City of Bridgeport, 479 F.3d 196, 205 (2d Cir. 2007) (internal
citation and quotations omitted). The claim seeks to protect against “a sustained detention
stemming directly from the law enforcement officials’ refusal to investigate available exculpatory
evidence.” Id. Accordingly, this claim is best analyzed under a claim of false arrest or malicious
prosecution as the alleged conduct is violative of Fourth Amendment rights. Because Lawyer alleges
inadequate investigation led to his unlawful arrest and to unjustified criminal charges against him,
see Compl. ¶ 36, his stand-alone failure to investigate claim1 is dismissed and Defendants’ motion to
dismiss is granted as to this claim.
Lawyer argues Defendants cite only non-binding case law for the proposition that a claim
of failure to investigate has no independence from claims of false arrest or malicious prosecution
and refers the Court to argument in his opposition to Defendants’ initial motion to dismiss. (Doc.
22 at 3 (citing Doc. 13 at 8-9).) The cases cited in Document 13, however, are also non-binding
cases from the Sixth, Seventh, Eighth, and Eleventh Circuit Courts of Appeals. (Doc. 13 at 8-9.)
A Fourth Amendment claim based on malicious prosecution under § 1983 is governed by
state law. Vermont law provides a plaintiff filing suit for malicious prosecution must establish the
defendant “instituted the proceeding against him (1) without probable cause, (2) with malice, and
that (3) the proceeding terminated in [his] favor.” Anello v. Vinci, 458 A.2d 1117, 1119 (Vt. 1983).
Depending on context, “[m]alice may be inferred from a lack of probable cause.” Osuna v. City of
New York, No. 08 Civ. 4759, 2009 WL 2356424, at *5 (S.D.N.Y. July 30, 2009).
Here, Lawyer alleges there was not probable cause to charge him with drug possession and
the prosecution terminated in his favor with the dismissal of the charges. At the motion to dismiss
stage, the Court draws all inferences in plaintiff’s favor, and accordingly, infers the existence of
malice from the alleged lack of probable cause. Further, in Court Four, Lawyer alleges Defendants
retaliated against him for his “drunken and loutish behavior.” (Compl. ¶ 43.) Defendants’ motion
to dismiss Lawyer’s malicious prosecution claim (Count Three) is denied.
Abuse of Process
In Count Four, Lawyer asserts a claim of abuse of process on the grounds the Defendants
employed legal process to retaliate against him “for his drunken and loutish behavior.” (Compl.
¶ 43.) To state a § 1983 claim for abuse of process, a plaintiff must establish “the defendants had an
improper purpose in instigating the action and that they aimed to achieve a collateral purpose
beyond or in addition to his criminal prosecution.” Morales v. City of New York, 752 F.3d 234, 238
(2d Cir. 2014) (internal alterations and citation omitted). Under Vermont law, “a plaintiff alleging
the tort of abuse of process is required to plead and prove: 1) an illegal, improper or unauthorized
use of a court process; 2) an ulterior motive or an ulterior purpose; and 3) resulting damage to the
plaintiff.” Wharton v. Tri-State Drilling & Boring, 824 A.2d 531, 536 (Vt. 2003) (internal quotation
marks and citation omitted).
Lawyer’s allegation that Defendant Cota included Lawyer’s fabricated confession to having
the heroin concealed in his shoe and the false statement the holding cell was “clean” in his affidavit
of probable cause is sufficient to allege improper use of a court process. He also sufficiently alleges
Cota aimed to achieve the collateral or ulterior purpose of retaliation against him and that the abuse
of process led to damage of increased bail and further detention. Accordingly, at the motion to
dismiss stage, Lawyer has stated a claim for abuse of process under state and federal law against
Defendant Cota. Defendants’ motion to dismiss Count Four is granted as to Defendants Patnode
and Rolandini because Lawyer does not allege they participated in the abuse of legal process by
signing an affidavit containing falsities, or in any other way.
Deprivation of Liberty Without Due Process of Law
In Count Five, titled deprivation of liberty without due process of law, Lawyer asserts
Defendants had an obligation not to fabricate or falsify evidence or to suppress exculpatory
evidence, they did not comply with that obligation, and he was seized as a result. The allegation
regarding suppression of evidence states a claim that fits the Russo claim for “mishandling or
suppression of exculpatory evidence,” 479 F.3d at 205. For the same reasons his failure to
adequately investigate claim is dismissed, Count Five is dismissed to the extent he alleges evidence
suppression. The allegations will be analyzed under his false arrest and/or malicious prosecution
Lawyer also alleges Defendants fabricated or falsified evidence, presumably his confession to
possessing the heroin in his shoe, see Compl. ¶¶ 20, 47, leading to his seizure. A criminal defendant
has a constitutional right “not to be deprived of liberty as a result of the fabrication of evidence by a
government officer acting in an investigating capacity.” Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir.
2000). A plaintiff who makes a falsified evidence claim must allege that “an (1) investigating official
(2) fabricate[d] evidence (3) that [was] likely to influence a jury’s decision, (4) forward[ed] that
information to prosecutors, and (5) the plaintiff suffer[ed] a deprivation of liberty as a result.”
Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d Cir. 2012). The deprivation of liberty
must be caused by the evidence falsification. See Malley v. Briggs, 475 U.S. 335, 345 n.7 (1986)
(“§ 1983 should be read against the background of tort liability that makes a man responsible for the
natural consequences of his actions.”).
Lawyer alleges Defendant Cota, an investigating official, fabricated Lawyer’s confession to
having the heroin concealed in his shoe, and as a result of including this in the affidavit of probable
cause, the Judge set a much higher bail leading to his continued detention until his family could
arrange to have him released and the State’s Attorney’s office proceeded with a drug possession
charge. At the motion to dismiss stage, drawing all reasonable inferences in Lawyer’s favor, the
Court will assume the alleged fabricated evidence would influence a jury’s decision and that his
detention was caused by the falsification. While this claim survives against Defendant Cota, it too is
analyzed under the Fourth Amendment and not the due process clause.
Accordingly, Defendants’ motion to dismiss is granted as to Count Five in part. The
surviving claim is for falsification of evidence against Defendant Cota. Count Five is dismissed
against Defendants Patnode and Rolandini and to the extent it alleges suppression of evidence.
Defendants assert they are entitled to qualified immunity because they did not violate any of
Lawyer’s clearly established rights. (Doc. 21 at 8-10.) Under federal law, a police officer is entitled
to qualified immunity “where (1) his conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known, or (2) it was ‘objectively
reasonable’ for him to believe that his actions were lawful at the time of the challenged act.” Jenkins
v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007). The same standard for qualified immunity
exists under Vermont state law. See Stevens v. Stearns, 833 A.2d 835, 840 (2003). “Because
qualified immunity is an immunity from suit rather than a mere defense to liability,” the Supreme
Court has “stressed the importance of resolving immunity questions at the earliest possible stage in
litigation.” Pearson v. Callahan, 555 U.S. 223, 231-32 (2009 (internal quotation marks and citation
omitted). As noted above, however, at the motion to dismiss stage, a “stringent standard” applies.
McKenna, 386 F.3d at 436.
As the Second Circuit has noted, “[t]here is no doubt that the right to be free from arrest
without probable cause [i]s clearly established.” Jenkins, 487 F.3d at 87. Given Lawyer’s allegation
that his seizure and subsequent prosecution was without probable cause as a result of the fabricated
and false statements in the affidavit of probable cause, the Court will not dismiss the remaining
claims on the basis of qualified immunity at the motion to dismiss stage. Defendants’ insistence
they are entitled to dismissal because the state court found probable cause ignores Lawyer’s
allegation the finding was based on the false affidavit. Manuel, 137 S. Ct. at 920 n.8 (“[I]f the
proceeding is tainted–as here by fabricated evidence–and the result is that probable cause is lacking,
then the ensuing pretrial detention violated the confined person’s Fourth Amendment rights.”); Lay,
38 A.3d at 1147 (noting the presumption probable cause exists if found by a court is rebuttable “if a
plaintiff can demonstrate that the finding . . . was based on misleading, fabricated, or otherwise
improper evidence”). Patnode and Rolandini are entitled to qualified immunity, however, because
they did not sign the affidavit of probable cause.
State Law Claims
Intentional Infliction of Emotional Distress
Lawyer claims intentional infliction of emotional distress (“IIED”) against defendants Cota,
Patnode, and Rolandini. (Compl. ¶¶ 49-52.) He alleges Defendants’ actions with regard to his
“arrest, lodging, detention and ultimately an unjustified charging and prosecution” were
intentionally or recklessly undertaken in an unreasonable manner causing him severe mental and
emotional pain and suffering. Id.
A plaintiff alleging an IIED claim is required to show “conduct so outrageous in character
and so extreme in degree as to go beyond all possible bounds of decent and tolerable conduct in a
civilized community.” Farnum v. Brattleboro Retreat, Inc., 671 A.2d 1249, 1256 (Vt. 1995). To
sustain an IIED claim, a plaintiff must show not only outrageous conduct, but also that it was done
intentionally or with reckless disregard of the probability of causing emotional distress, and resulted
in the suffering of extreme emotional distress, actually or proximately caused by the outrageous
conduct. Fromson v. Vermont, 848 A.2d 344, 347 (Vt. 2004). The test is objective: the plaintiff
must show the harm resulting from the distress was so severe that no reasonable person could be
expected to endure it. Farnum, 671 A.2d at 1256. The plaintiff bears a heavy burden. Dulude v.
Fletcher Allen Health Care, Inc., 807 A.2d 390, 398 (2002). Whether the alleged conduct was so
extreme that a trier of fact could find liability is a threshold question of law. Farnum, 671 A.2d at
1256. Accordingly, the Court must make the initial determination of whether a jury could
reasonably find the alleged conduct satisfies the elements of IIED. Fromson, 848 A.2d at 347.
Lawyer alleges Patnode and Rolandini participated in questioning him about the heroin
packets Rolandini observed but failed to review the audio and video recordings of the holding cell.
(Compl. ¶¶ 19-20, 22.) An alleged failure to investigate is not extreme and outrageous conduct in
Vermont. Grega, 123 F. Supp. 3d at 550 (citing Baptie v. Bruno, 88 A.3d 1212, 1219 (Vt. 2013)).
Patnode and Rolandini made “some effort” to investigate the apparent drug possession by
questioning Lawyer. Id. (holding where defendants made “some effort” to investigate, a claim of
IIED cannot lie from their investigations’ alleged failures). As a matter of law, Defendants’ Patnode
and Rolandini’s alleged conduct was not “so outrageous in character and so extreme in degree as to
go beyond all possible bounds of decent and tolerable conduct in a civilized community.” See
Farnum, 671 A.2d at 1256. Accordingly, the Court determines a reasonable jury could not find their
alleged conduct satisfies the elements and the motion to dismiss Lawyer’s IIED claims against
Patnode and Rolandini is granted.
With regard to Cota, however, Lawyer alleges he also misrepresented that the holding cell
was clean and that Lawyer confessed to possessing the heroin. (Compl. ¶¶ 14-15, 20-21.)
Fabrication of evidence “may constitute the extreme and outrageous behavior sufficient to support a
claim of IIED.” Grega, 123 F. Supp. 3d at 550 (citing Pitt v. District of Columbia, 491 F.3d 494,
506 (D.C. Cir. 2007)). Cota’s alleged fabrication of the confession and misrepresentation regarding
the status of the holding cell may be outrageous enough for a jury to reasonably find the conduct
prong of an IIED claim. Lawyer also alleges the conduct was intentional or reckless and it caused
severe emotional distress. Accordingly, at this stage of the litigation, Lawyer has successfully stated
a claim of IIED against Cota and the motion to dismiss is denied as to him.
Negligent Infliction of Emotional Distress
Lastly, Lawyer claims Defendants subjected him to the negligent infliction of emotional
distress (“NIED”). (Compl. ¶¶ 53-55.) To state a claim for NIED, “a plaintiff must make a
threshold showing that he or someone close to him faced physical peril.” Brueckner v. Norwich
Univ., 730 A.2d 1086, 1092 (Vt. 1999). A plaintiff may establish a claim by showing he suffered a
physical impact. Id. If plaintiff has not suffered an impact, he must show “(1) he was within the
‘zone of danger’ of an act negligently directed at him by defendant, (2) he was subjected to
reasonable fear of immediate personal injury, and (3) he in fact suffered substantial bodily injury or
illness as a result.” Id. Lawyer does not allege he suffered a physical impact that was within a zone
of danger or was subjected to reasonable fear of personal injury. Accordingly, Lawyer has not stated
a claim for NIED and Defendants’ motion to dismiss is granted as to the NIED claim.
For the reasons discussed above, Defendants’ motion to dismiss the claims against them in
their individual capacities (Doc. 21) is granted in part and denied in part. Count Two is dismissed in
its entirety; Counts Four and Five and the state law IIED claim are dismissed as to Defendants
Patnode and Rolandini; and the state law NIED claim is dismissed in its entirety.
The remaining claims are for false arrest (Count One); malicious prosecution (Count Three);
and abuse of process (Count Four), falsification of evidence, under the Fourth Amendment (Count
V) and IIED under state law, against Defendant Cota.
Dated at Brattleboro, in the District of Vermont, this 14th day of June, 2017.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge
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