Edwards v. Kanode et al
Filing
217
MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 10/30/2020. (Opinion mailed to Pro Se Party via US Mail)(slt)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
MICHAEL DERRICK EDWARDS,
Plaintiff,
v.
BARRY KANODE, ET AL.,
Defendants.
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CASE NO. 7:19CV00324
MEMORANDUM OPINION
By: Hon. Glen E. Conrad
Senior United States District Judge
In this civil rights action under 42 U.S.C. § 1983, plaintiff Michael Derrick Edwards, a
Virginia Department of Corrections (“VDOC”) inmate proceeding pro se, alleges that defendants
Beverly Witt, a registered nurse (“RN”), and Deborah Ball, a nurse practitioner (“NP”), acted with
deliberate indifference to his serious medical needs. After review of the record, the court
concludes that the motion for summary judgment filed by NP Ball and RN Witt must be denied in
part and granted in part.
I.
Edwards alleges that on November 27, 2018, at River North Correctional Center (“River
North”), he was involved in an altercation with prison officials, who engaged a patrol dog that bit
him in several places. After maintaining Edwards in restraints all night, on the morning of
November 28, 2018, the River North doctor examined Edwards, who was then transported to Red
Onion State Prison (“Red Onion”). Edwards alleges that when he arrived at Red Onion around
12:30 p.m., “the entire left side of his face and head was bruised, bloody, swollen, his left eye was
completely swollen closed, [he] had a cut on his right eyebrow, cuts, bruises and swelling to both
hands and wrists, both lips busted and dog bites on right leg, thigh, and back.” Second Amend.
Compl. (“Compl.”) 7, ECF No. 126. Edwards claims that defendants NP Ball and RN Witt acted
with deliberate indifference by denying him adequate medical care for some of these conditions
for nearly four months.
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Defendants NP Ball and RN Witt have filed a motion to dismiss on the ground of qualified
immunity and a motion for summary judgment, supported by affidavits and medical records.1
Edwards has responded, making these matters ripe for disposition.
II.
A.
A court should grant summary judgment only when the pleadings and the record reveal
that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(a); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine dispute of fact
exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. In considering a motion for summary judgment, the court
must view the facts and the reasonable inferences to be drawn from the facts in the light most
favorable to the party opposing the motion. Id. at 255. “Because credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge,” the court’s inquiry on summary judgment must be “whether the
evidence in this case presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” McAirlaids, Inc. v. KimberlyClark Corp., 756 F.3d 307, 310 (4th Cir. 2014). 2
1
The court notes that because the defendants’ motion to dismiss on the ground of qualified immunity relies
on evidence outside the pleadings, offered in support of their summary judgment motion, the court finds the motion
to dismiss to be subsumed into the separate motion for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure. Moreover, because the court herein finds material facts in dispute as to NP Ball, her qualified immunity
defense cannot be decided at this stage of the proceedings. See Willingham v. Crooke, 412 F.3d 553, 559 (4th Cir.
2005) (holding genuine question of material fact related to reasonableness of official’s action or inaction precludes
summary judgment on qualified immunity grounds).
2
The court has omitted internal quotation marks, alterations, and/or citations here and throughout this
memorandum opinion, unless otherwise noted.
2
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To state a claim under § 1983, 3 a plaintiff must allege “the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
An inmate’s Eighth Amendment protections against cruel and unusual punishment include a right
to the medical care necessary to address his serious medical needs. Estelle v. Gamble, 429 U.S.
97, 103-04 (1976). Specifically, a prison official’s “deliberate indifference to an inmate’s serious
medical needs constitutes cruel and unusual punishment under the Eighth Amendment.” Jackson
v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014).
The first, medical need portion of this legal standard is objective. It requires showing that
the inmate’s medical condition is, objectively, “serious—one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Id. A medical condition is “objectively serious
when it would result in further significant injury or unnecessary and wanton infliction of pain if
not treated.” Formica v. Aylor, 739 F. App’x 745, 755 (4th Cir. 2018).
The second, deliberate indifference portion of the Eighth Amendment standard is
subjective. The plaintiff must show, by direct or circumstantial evidence, that each defendant,
subjectively, knew of and disregarded an excessive risk to inmate safety or health. Farmer v.
Brennan, 511 U.S. 825, 837 (1994). The evidence must support findings that each defendant was
“aware of facts from which the inference could be drawn that a substantial risk of serious harm
exist[ed], and that she “also dr[e]w the inference.” Id. While the inmate need not show the prison
official “acted or omitted to act for the very purpose of causing harm or with knowledge that harm
will result,” the inmate must show “more than mere negligence.” Id. at 835. Similarly, an inmate’s
mere disagreement with “questions of medical judgment” as to the appropriate care for the
3
Although the introduction of Edwards’ complaint mentions state tort claims, the only specific tort claim he
describes in the pleading is assault and battery by officers involved in the altercation at River North.
3
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plaintiff’s condition will not support a finding of deliberate indifference. See Russell v. Sheffer,
528 F.2d 318, 319 (4th Cir. 1975). An inmate has no “constitutional right to the treatment of his
choice,” so long as the medical treatment provided was “adequate to address the prisoner’s serious
medical need.” De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013); Bowring v. Godwin, 551
F.2d 44, 48 (4th Cir. 1977) (holding that essential test for constitutionally required medical care
“is one of medical necessity and not simply that which may be considered merely desirable”).
B.
The parties mostly agree on the sequence of events related to Edwards’ requests for medical
attention and the medical examinations, tests, referrals, and treatment provided to him at Red
Onion. See gen. Mem. Supp. Mot. Summ. J., ECF No. 109. The doctor at River North prescribed
the antibiotic medication Augmentin and recommended follow up for possible delayed signs of
head injury. On November 28, 2018, at Red Onion, NP Ball ordered Augmentin, twice per day
for ten days, and follow up evaluation of a possible head injury and other injuries received at River
North. See id. Ex. 2, Ball Decl. ¶ 26 and Attach. at 35, ECF No. 109-2.
On the morning of November 29, 2018, NP Ball performed a medical assessment on
Edwards. She noted that he was able to open his mouth without difficulty; his left upper eyelid
was swollen and subconjunctival hemorrhage was visible in both eyes; his right hand was swollen,
and he exhibited decreased range of motion in that hand; he had a one-centimeter closed laceration
on his right eyebrow area; his pupils were equal, round, and reactive to light and accommodation;
and the range of motion in his arms and legs was within normal limits. She recorded that Edwards
denied having any abdominal pain or problems with the skin on his lower extremities. NP Ball
also noted that Edwards “had no vision changes per [his] report.” Ball Decl. Attach. at 36. She
ordered an X ray of Edwards’ right hand and an X ray of his facial bones because of the bruising
of his mid lower eye orbits, swelling of his left upper eyelid, and the presence of subconjunctival
4
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hemorrhages. Finally, NP Ball reported that no acute neuro deficits were present and that Edwards
was to elevate his right hand as needed.
X rays of Edwards’ right hand and facial bones were performed on December 4, 2018. On
December 6, 2018, NP Ball reviewed and signed off on the hand X ray report, which found no
acute fracture or dislocation and no focal soft tissue findings. On December 13, 2018, NP Ball
signed off on the facial X ray report, which found no definite or displaced facial fracture. The
report noted, however, that “[p]lain films cannot evaluate intracranial pathology, CT if concern.”
Ball Decl. at ¶¶ 29, 31. The record does not indicate that NP Ball ordered any follow up
examinations or prescribed any further treatment for Edwards for more than two months.
Edwards’ evidence is that when NP Ball examined him on November 29, 2018, some
unspecified injuries were still bleeding and swollen, but she offered no medical care other than
ordering X rays. He states that he told her he had pain throughout his body from being in restraints
so long, that “his hands and wrists were giving him pain and numb of feeling along with the dog
bites, both eyes were giving him pain, and he couldn’t see out of the left one” as it was swollen
shut.” Compl. 7, ECF No. 126. NP Ball allegedly told him to wait a month or two for his
symptoms to resolve. Edwards complains that NP Ball lied in her notes by failing to list his reports
of pain from being in restraints and that she refused to prescribe pain medication. He alleges that
NP Ball failed to refer him to see an optometrist and the regional physician. Edwards also states
that NP Ball did not assess him for neurological deficits and that despite her lack of neurology
expertise and her failure to conduct a proper examination of his condition, she reported that he had
no acute neurological deficits and failed to refer him to see a neurologist. 4
4
Edwards also complains that NP Ball’s affidavit submitted with the motion for summary judgment is not
notarized. NP Ball later filed the properly executed and notarized signature page of her declaration on February 3,
2020. See ECF No. 117.
5
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The court concludes that the evidence in the record as to the injuries and symptoms
Edwards exhibited at Red Onion presents issues of fact for trial regarding the objective portion of
the constitutional standard. Indeed, it is undisputed that after the altercation on November 27,
2018, nurses and a doctor at River North determined that Edwards’ injuries warranted medical
treatment there, in addition to follow up care at Red Onion. Jackson, 775 F.3d at 178. Moreover,
Edwards describes his complaints of pain to NP Ball. Formica, 739 F. App’x at 755.
The court also concludes that on the current record, Edwards’ evidence about NP Ball’s
treatment decisions and notes about the November 29, 2018, examination and thereafter, taken in
the light most favorable to him, present material disputes of fact for trial on deliberate indifference.
Clearly, NP Ball did not ignore Edwards’ injuries that day. She performed and documented a
thorough assessment of his condition and ordered X rays of his hand and face to assist in
determining future treatment needs. However, despite Edwards’ reports of widespread pain, NP
Ball did not prescribe pain medication or other pain-relieving treatments. She also did not refer
Edwards to the prison physician, an optometrist, or a neurologist regarding his pain, his obviously
injured eyes, and his reports of numbness. According to Edwards, NP Ball merely advised
Edwards to give these conditions time to resolve.
Records detailed herein indicate that NP Ball next evaluated Edwards two and a half
months later, on February 14, 2019, for complaints in late January 2019 of continuing pain,
numbness, and visual problems. When NP Ball examined Edwards, he was already on the list to
6
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see the regional physician. 5 NP Ball also referred him to the optometrist, but she did not provide
treatment expressly designated to address his pain or numbness. On March 4, 2019, an optometrist,
Dr. Cline, evaluated Edwards for his vision complaints, diagnosed floaters in both eyes, and
ordered follow up in one month. At a second evaluation of Edwards on March 18, 2019, Dr. Cline
reached the same diagnosis and prescribed two different eye drops. Edwards saw the regional
physician, Dr. Fox, on March 20, 2019. Dr. Fox diagnosed Edwards’ subjective hand complaints
as chronic hand pain from dog bites received in November 2018 and, over the next several weeks,
the doctor prescribed various pain medications for Edwards to try to address the issue.
Based on this evidence, the court finds disputes of fact on which Edwards may be able to
persuade a jury that NP Ball knew that Edwards was suffering, and would continue to suffer, pain
and possibly other visual or neurological effects because of her actions or inactions on November
29, 2018, and in the days and weeks thereafter. 6 He may be able to show that NP Ball knew the
care she provided at that first exam was inadequate to address some of his immediate and serious
medical needs. De’lonta, 708 F.3d at 526. Moreover, Edwards may be able to show that he
suffered prolonged, serious medical conditions because of NP Ball’s decisions to delay treatment
for pain, referral to the prison physician, and referral to specialists for treatment of his eyes and
numbness. “[D]elaying access to medical care” may constitute deliberate indifference. See Smith
5
Edwards contends that the defendants have misrepresented when he was placed on the list to see the
regional physician. This claim is contrary to the record, which indicates that Nurse Yates placed Edwards on the list
to see the regional physician on January 30, 2019. RN Witt informed him on February 5, 2019, that he was also on
the list to see NP Ball, and Nurse Jessee informed him on February 11, 2019, that he was on the list to see the regional
physician. Before the doctor’s appointment could occur, NP Ball saw and evaluated Edwards on February 14, 2019,
and again on February 21, 2019, for flu-like symptoms. These interim remedy form responses and examinations do
not prove that during this time period, Edwards was not also on the list to see the physician, as the warden stated in a
February 27, 2019, Regular Grievance response, as RN Witt informed him on March 4, 2019, and as Nurse Anderson
informed him on March 19, 2019.
6
Edwards alleges that in January 2019 he filed several requests for sick call that were ignored. See Compl.
7, ECF No. 126. He fails to state facts concerning the dates on which he filed these requests, the specific medical
complaints they presented, or how NP Ball or RN Witt received notice of such complaints or requests. Because
Edwards fails to present evidence on which he could prove that these defendants, personally, were notified of or
ignored any request for medical care during December 2018 or January 2019, the court has not construed the complaint
as raising any such claim against them.
7
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v. Smith, 589 F.3d 736, 739 (4th Cir. 2009) (citing Estelle, 429 U.S. at 104–05). In such cases, in
addition to establishing that his medical need was objectively serious, a plaintiff must usually show
that the delay in providing medical care caused him to suffer “substantial harm.” See, e.g., Webb
v. Hamidullah, 281 F. App’x. 159, 166 (4th Cir. 2008); Shabazz v. Prison Health Servs., Inc., No.
3:10CV190, 2012 WL 442270, at *5 (E.D. Va. Feb. 9, 2012). “The substantial harm requirement
may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Shabazz, 2012 WL
442270, at *5 (citing other cases). Finding material factual disputes as to the alleged delays in
treatment, based on the current record, the court will deny NP Ball’s motion for summary
judgment.
C.
Edwards contends that RN Witt denied him adequate medical care in the aftermath of the
dog bite incident. Specifically, he accuses RN Witt of merely repeating, and thus covering up for,
NP Ball’s inaccurate reports finding that Edwards had no acute neuro deficits.
Two months after NP Ball’s first evaluation of Edwards on November 29, 2018, the inmate
filed an Emergency Grievance, received by the Red Onion medical staff on January 30, 2019. It
stated: “My eye (left eye) has gone dim & I see white flashes in my right eye. My hands, wrist,
leg & back all are numb of feeling. I sent numerous sick call request explaining this problem. I
need medical attention.” Mem. Supp. Mot. Summ. J. Ex. 1, Witt Decl. ¶ 32 and Attach. 39, ECF
No. 109-1. A few hours later, nurse Yates evaluated Edwards and noted his report of continuing
numbness and pain in his hands, legs, back, and face from the altercation in November 2018.7
Nurse Yates’ assessment found that Edwards was alert and oriented times three, his respirations
were even and unlabored, and he had a stable gait to the cell door. Nevertheless, she referred him
to NP Ball for evaluation and had him added to the “MD list.” Witt Dec. Attach. at 40.
7
Nurse Yates is not a defendant in this case.
8
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Also on January 30, 2019, Edwards submitted an Informal Complaint, stating:
. . . I put an Emergency Grievance in due to the fact I was experiencing the
following medical problems—my left eye went dim (dark) I [am] seeing white
flashes in my right eye, my back, wrist, hands are all numb of feeling. I had to stop
nurse Yates & tell her that I needed medical assistance. She then stated she don’t
have time for this. I told her about the problems I was experiencing. She only took
my temperature & blood pressure telling me she not going to do anything for me
because I should of [sic] never put my hands on staff. I got a[n] x-ray that’s it. I
told her the x-ray is to see if bones are broken not nerve damage. She just repeated
I should of [sic] never put my hands on staff. There isn’t anything she could do.
She not going to refer me to the doctor. She never checked none of the injuries I
told her about. Camera footage supports this complaint. I am still in need of
medical attention. This incident occurred between 2:20 p.m. and 2:30 p.m.
Id. at 41. On February 5, 2019, RN Witt responded to this Informal Complaint as follows: “You
were assessed by D. Ball NP on 11/29/18. You were assessed on 1/30/19 by nurse Yates and you
are on the list to see practitioner.” Id.
On January 31, 2019, Edwards submitted a second Informal Complaint, complaining that
nurse Yates had failed to provide him with medical treatment on January 30, 2019. On February
16, 2019, RN Witt responded to Edwards’ complaint, stating: “Yates RN did a sick call on you on
1/30/19 and you are on list to see practitioner. 2/14/19—you were seen by D. Ball NP 2/14/19.
No acute neuro deficits (altercation in 11/2018 @ RNCC). Refer to eye MD.” Witt Decl. at ¶ 35
and Attach. at 42.
On January 31, 2019, at approximately 7:52 a.m., Edwards submitted an Emergency
Grievance addressed to “Chief Warden/Asst Warden,” complaining:
Around 7:40-7:45 AM while D. Yates was conducting pill pass I told her I needed
medical assistance for the following injuries: my left eye went dim, my right eye
white flashes, and both of my hands and wrist[s], leg, thigh and back are numb of
feeling. I was denied medical assistance. The above injuries constitute as
immediate risks of serious personal injury and irreparable harm. I am still in need
of medical assistance.
9
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Id. at 43. On January 31, 2019, at approximately 10:20 a.m., nurse Yates responded to Edwards’
Emergency Grievance, stating that his issues did not meet the definition for an emergency because
he had already been assessed for these issues.
On February 7, 2019, Edwards submitted a Regular Grievance, repeating his complaints
from the January 30, 2019, Informal Complaint. On February 16, 2019, in response to Edwards’
Regular Grievance, RN Witt referred to her response to his related Informal Complaint. The Level
I response to Edwards’ Regular Grievance issued on March 5, 2019. It referenced RN Witt’s
responses about records indicating that Edwards had been assessed by nurse Yates on January 30,
2019; he was referred to be seen by the nurse practitioner; and he was examined by NP Ball on
February 14, 2019, who noted that there were no acute neuro deficits present and referred him to
the eye doctor. Based on these records, the Regular Grievance was ruled to be unfounded.
On February 11, 2019, at approximately 11:00 a.m., Edwards submitted an Emergency
Grievance, stating:
I am still suffering from the following injuries: my eye (left eye) is dimmer than
the right and is starting to pain me. My right eye is having white flashes. My hands,
wrist, back, leg and thigh are numb of feeling around the dog bites. Where the
handcuffs were tighten[ed] around my wrist I been suffering from this since 11-2818. It’s been almost 2 weeks and I still haven’t seen the L.P.N. for these problems.
Id. at 47. On February 11, 2019, at approximately 3:38 p.m., nurse Jessee responded that Edwards’
grievance did not meet the definition for an emergency because he had already been assessed by a
nurse and was on the list to see the doctor.
As stated, on February 14, 2019, at 9:48 a.m., NP Ball assessed Edwards for complaints
stemming from the dog bite incident. Among other things, she tested his vision and examined his
eyes. Because of Edwards’ reports of occasional blurred vision, NP Ball referred him to an
optometrist for evaluation. From her examination, NP Ball noted no acute neuro deficits and
10
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indicated that Edwards should follow up as needed. Records indicated that Edwards was already
on the list to see the regional physician.
On February 27, 2019, Edwards submitted a Regular Grievance, stating:
On 2-14-19 I was taken to Medical between 9:45AM-9:30AM to see [NP Ball]. I
told her about the problem with my hands & wrist not having any feeling & giving
me pain. She stated she is not worried about it. Told me to wait a month or two it
should go away. She told me this on 11-29-18 & continue to keep telling me every
time I see her this problem is becoming worse. I been scheduled to see an
optometrist which is an eye doctor while the problem with my hands & wrist is
being neglected. I’m being refused medical assistance for the noted problems.
Id. at 49. On March 4, 2019, RN Witt provided this information in response: “As I explain[ed] in
prior request that if you were still having trouble to put in a request to see practitioner. I have
placed you on the list to see regional practitioner but he only is here once or twice a month.” Id.
at 50. The Level I response, relying on this information from RN Witt, ruled the February 27,
2019, Regular Grievance to be unfounded. It noted that NP Ball had assessed Edwards for his
medical complaints on February 14, 2019, and had not denied him medical treatment; that Edwards
should follow up as needed; and that he was currently on the list to see the regional physician, Dr.
Fox.
As to RN Witt, Edwards contends that she knew from his remedy forms of his complaints
about pain, numbness, and eye problems, but took no steps to address his medical needs more
appropriately. Edwards also complains that RN Witt never assessed or evaluated him to determine
whether NP Ball was accurate in finding no acute neurological deficits. In addressing Edwards’
written grievances and complaints, however, RN Witt reviewed and quoted from reports of the
care provided—to ensure that Edwards’ medical complaints had not been ignored and that a nurse,
nurse practitioner, or doctor had examined him or was scheduled to do so soon. Moreover,
Edwards offers no evidence that as a nurse, RN Witt has the medical expertise or authority to
contravene or change a medical diagnosis or treatment order from a nurse practitioner like NP
11
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Ball, who is licensed to perform different duties than a nurse. On the contrary, a nurse is entitled
to rely on the prescriptions of a doctor or nurse practitioner as a more highly trained medical
professional regarding the appropriate course of treatment for an inmate patient and cannot be
found deliberately indifferent for doing so. See, e.g., Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir.
1990) (“No record evidence suggests why [defendant] should not have been entitled to rely upon
[prison’s] health care providers’ expertise” for appropriateness of evaluation or care previously
provided to inmate), overruled on other grounds by Farmer v. Brennan, 511 U.S. 825, 840 (1994);
Ames v. Sidi, No. 3:16CV781, 2019 WL 5685585, at *4 (E.D. Va. Oct. 31, 2019) (finding nurse
“is entitled to rely upon the medical judgment of a doctor as to the proper course of treatment for
an inmate”) (citing other cases).
For the stated reasons, the court cannot find any genuine issue of disputed fact on which
Edwards could persuade a jury that RN Witt’s challenged actions constituted deliberate
indifference to any serious medical need. Accordingly, the court will grant summary judgment for
RN Witt.
III.
For the stated reasons, the court will grant summary judgment as to the claims against RN
Witt, but will deny summary judgment as to the claims against NP Ball. 8 As stated, the court will
dismiss the motion to dismiss as subsumed in the defendants’ summary judgment motion. An
appropriate order will be entered herewith.
The court will send a copy of this memorandum opinion and the accompanying order to
plaintiff and counsel of record for the defendants.
30th
ENTER: This ____ day of October, 2020.
_________________________________
Senior United States District Judge
8
The pending motions by defendant Parks will be addressed in a separate opinion and order.
12
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