Thoreson, Robert v. Benton, Christopher et al
Filing
61
OPINION AND ORDER denying 36 Motion for Partial Summary Judgment; denying 39 Motion for Summary Judgment. Signed by District Judge William M. Conley on 8/15/2018. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
EDITH DEUTSCH, Personal Representative
of the Estate of Robert Thoreson
v.
Plaintiff,
CHRISTOPHER BENTON,
SCOTT MORLAND, 1 NICHOLAS SUMINSKI,
and GERALD KATCHKA,
OPINION AND ORDER
17-cv-259-wmc
Defendants.
Plaintiff Robert C. Thoreson originally filed this § 1983 suit for what he claims was
defendants’ unlawful search of his home in the early hours of October 17, 2015, in
violation of the Fourth and Fourteenth Amendments. Following Thoreson’s death on
November 9, 2017, his mother, Edith M. Deutsch, took over this lawsuit as the personal
representative of his estate. For convenience, “plaintiff” will refer to Robert Thoreson
himself in this opinion, although legally it is now his estate. Before the court are plaintiff’s
motion for partial summary judgment and defendants’ motion for summary judgment.
(Dkt. ##36, 39.) Because there are numerous disputes of material fact, both motions will
be denied.
There appears to be a dispute over how to spell this defendant’s last name: Moreland or Morland.
The court defers to defense counsel’s spelling throughout, rather than that found on ECF. A similar
change should be made to the case caption as well. Likewise, there seems to be a disagreement
about how to spell the personal representative’s name -- Deutsch or Deutch. (Compare dkt. #56 ¶
2 with dkt. #37 at 1.) The parties seem to agree that “Deutsch” is appropriate, so the court will
defer to that spelling.
1
UNDISPUTED FACTS 2
A. Background
Shortly after 2:00 a.m. on Saturday, October 17, 2015, Daniel Thoreson’s property
at 73810 Ondossagon Road, Washburn, Wisconsin was searched as part of a criminal
investigation by: defendant Benton, then a sergeant with the Police Department for the
Red Cliff Band of the Lake Superior Chippewa Indians, located near the northern-most tip
of the State of Wisconsin; defendant Suminski, then a police officer for the City of
Washburn, Wisconsin, just 15 miles south of the Red Cliff Reservation; defendant
Morland, then a detective with the Police Department of the City of Ashland, Wisconsin,
5 miles further south; and defendant Katchka, then an agent with the Wisconsin
Department of Justice, Division of Criminal Investigation (“DCI”). All defendants reside
in Wisconsin, and the parties agree that they were acting within the scope of their
employment and under the color of law.
At the time, Daniel Thoreson, a brother of the plaintiff, 3 was being investigated for
dealing methamphetamine. Specifically, Daniel was under investigation for being a major
The following facts are material and undisputed for purposes of summary judgment, except where
noted. At the outset, the court notes that responses to proposed findings of fact exist to confirm
areas of factual agreement and to highlight factual disputes. (See Pretrial Procedures (located at dkt.
#27) 5.) Unfortunately, defendants often treated it as another platform on which to advocate their
legal arguments. (See e.g., Defs.’ Resp. to Pl.’s PFOF (dkt. #49) ¶ 42.) For example, defendants
often answered: “No dispute as to stated factual proposition. Dispute materiality of proposed fact
because the entry into Robert’s residence was a lawful protective sweep under the Fourth
Amendment, the validity of which is not dependent on the officer’s knowledge of property
boundaries or scope of original warrant. (See Dkt. 40.)” This is not just a pointless exercise. It is
a waste of the other party’s and the court’s time. Any repetition may be subject to sanctions.
2
Given the common last name “Thoreson” of several of the related individuals involved in the
events giving rise to this lawsuit, the court may refer to those individuals by their first names for
ease of reference.
3
2
distributor of methamphetamine between Minnesota and Ashland, Bayfield, Burnette and
Sawyer Counties, an area covering hundreds of square miles and much of Northwestern
Wisconsin. In the course of DOJ Agent Katchka’s investigation, he learned that Daniel
regularly received methamphetamine from Matthew Youngbouer from Hinkley,
Minnesota, which Daniel then distributed. 4 Based on his investigation, Katchka applied
for a search warrant for Daniel’s property, which was granted by Ashland County Circuit
Judge Robert E. Eaton. The search warrant authorized the search of Daniel Thoreson’s
residence at 73810, as well as “any associated storage facilities, outbuildings and vehicles
on the premises.” (Search Warrant (dkt. #34-4) 1-2.)
Shortly after the search began, defendants Benton, Morland and Suminski crossed
the property line separating Daniel’s property at 73810 Ondossagon Road from Robert’s
property at 73780 Ondossagon Road.
These properties had separate driveways and
different fire numbers, but there was no fence separating them. Once on the 73780
property, Benton, Morland and Suminski opened the south door of Robert’s residence into
the structure’s single room, giving rise to plaintiff’s claims.
B. Pre-Search Meeting
In the evening of Friday, October 16, 2015, defendant Katchka held a meeting with
those who were going to participate in the search of Daniel’s property. The meeting was
in Ashland, at a Wisconsin Department of Natural Resources facility. Over twenty officers
Youngbouer apparently considered Daniel to be his “best seller” and sent him methamphetamine
at least twice a week. Youngbouer was known for relying on a gang-member bodyguard for
protection.
4
3
were in attendance; they were from the Ashland Police Department, the Police Department
of the Red Cliff Band of Lake Superior Chippewa, the Bayfield County Sheriff’s
Department, the Wisconsin State Patrol, the Douglas County Sheriff’s Department, and
DCI. Defendants Benton, Morland and Suminski were among those in attendance.
Defendant Katchka, as the Department of Justice agent previously trained on
constitutional principles regarding search warrants, was in charge of the search. He also
ran the meeting, passing out copies of an operational plan and informing attendees that
Robert lived immediately south of Daniel, while showing aerial photographs of Daniel’s
residence. 5 Robert’s house was also in a photograph, but the boundary between the
properties was not marked.
During the meeting, Agent Katchka also used a PowerPoint presentation and
whiteboard, although the defendants’ memories differ about whether Katchka noted the
location of the boundary. 6 Assignments for the execution of the search warrant were
handed out during this meeting. Officer Suminski was assigned perimeter duty at the
northwest corner of Daniel’s house, while Sergeant Benton and Detective Morland were
similarly assigned perimeter duty at the southeast corner.
Before this meeting, Agent Katchka had viewed Daniel’s residence from the road.
In fact, he had driven on Ondossagon Road past Daniel and Robert’s homes approximately
The parties dispute whether there was one photograph or multiple, however this dispute is not
particularly material to defendants’ pending motion for summary judgment.
5
Unfortunately, these demonstratives were apparently destroyed after the meeting, which given the
issues that emerged only hours later during the search itself is for the defendants problematic at
best.
6
4
thirty times. Each house has a roadside sign displaying its number. Katchka was aware of
this. In fact, he had attempted to find the property line between the properties during his
drive-bys. During the meeting, Katchka informed the law enforcement officers that there
were campers or sheds between the two houses and that these structures were on Robert’s
property. Katchka also informed them that Robert’s home looked like a garage. According
to Katchka, had the other defendants in attendance at the meeting been listening to him,
they would have known that the “garage” south of David’s house was Robert’s home.
While Agent Katchka believed he was as clear as necessary concerning the locations
of the property line and Robert’s home, the other defendants all disagree: Officer Suminski
testified that “[t]o [his] knowledge,” no one “ha[d] told [him] where the property line
[was]” (Suminski Dep. (dkt. #31) 22:21-23); Detective Morland did not “remember
talking about property lines” (Morland Dep. (dkt. #33) 7:19-24); and Sergeant Benton
left the meeting understanding that Robert lived to the south and believing that he lived
on a large farm, also viewable in the aerial photo (Benton Dep. (dkt. #32) 8:13-9:2).
C. Execution of the Warrant
Before beginning the search, the participating officers assembled at the Washburn
Elementary School. At that point, Katchka confirmed they would be executing the search
warrant. 7 The officers put on their gear before driving to Ondossagon Road. Sergeant
Benton parked in Daniel’s driveway before going to his assigned position, taking an AR-15
rifle and his sidearm with him. Upon arrival, Officer Suminski parked and ran up the
The parties agree that a second property in the Village of Washburn was also searched pursuant
to a separate warrant on October 17, 2015.
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driveway towards his assigned position. Passing around the first building on the property,
Suminski and Washburn Police Chief Ken Johnson encountered a woman, Tabatha
Zwetow, Daniel’s girlfriend, and took her into custody. Zwetow had apparently been
running on the property wearing a “Friday the 13th” hockey mask. Several other people
ran away from Daniel’s residence towards outbuildings. Two other people were also taken
into custody at this point, including Daniel’s suspected meth supplier, Youngbouer. By
that time, DCI agents and the Bayfield Emergency Response Team had also apparently
entered and cleared Daniel’s residence.
After being at his assigned perimeter post for only a few minutes, Officer Suminski
encountered Sergeant Benton and Detective Morland. At that point, all three defendants
claim that someone then instructed them to clear the campers, boats and buildings of
people.
Although none of the three defendants were able to recall who gave that
instruction, they agree that person did not detail where the property line was. Defendants
characterize their subsequent movements as a “protective sweep . . . for officer safety.” (See
Defs.’ Resp. to Pl.’s PFOF (dkt. #49) ¶ 66.) The parties agree that this action was to locate
people, not contraband.
As defendants Suminski, Benton and Morland began to clear the buildings, boats
and campers, Suminski had still not seen the search warrant; Morland did not know where
the property line was; and Benton thought that the property line was farther to the south.
As the three moved south, they encountered some campers, which Benton and Morland
entered. These campers were no longer on Daniel’s property, but rather on Robert’s.
Benton, Morland and Suminski then continued southward, where they encountered
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Robert’s home.
The parties dispute whether Robert’s home was “a garage structure” or “an L-shaped
building.” (See Defs.’ Reply to Pl.’s Resp. to Defs.’ PFOF (dkt. #56) ¶ 18.) The parties do
agree that Robert’s home is comprised of a two-vehicle garage with an attached dwelling.
This is a picture of the exterior of Robert’s home:
(Exterior Photo (dkt. #50-4) 1.) As reflected in the picture, a garage door was open when
Benton, Morland and Suminski approached. A grey Subaru Impreza was parked in front
of the garage, which at the time they recall thinking belonged to Tabatha Zwetow, the
woman taken into custody earlier. It actually belonged to Robert.
Once arriving at the home’s curtilage, defendants Benton, Morland and Suminski
continued to walk around the structure. They could see into the home through a window
on the west side. They saw a television set was on, as well as several drones. Officer
Suminski thought that the television could indicate that someone was inside. They also
located a door on the south wall, which was unlocked. All three defendants report having
a discussion before going inside, with Sergeant Benton and Suminski having rifles at the
ready.
When the three defendants entered Robert’s home, Robert was asleep with his C-
7
Pap mask on his face. He was woken by someone shouting “This is the police. We got a
search warrant.” Pointing his rifle at Robert, Officer Suminski also directed him to show
his hands. Although Suminski denies saying more, plaintiff contends that one of the
officers yelled, “Don’t move you cock sucker. I’ll blow your fucking head off, don’t move,
let me see your hands, don’t move. We got a fucking search warrant.” Either way, the
officers pulled the blanket off Robert and the bed. Robert was only wearing his underwear
and C-Pap machine mask.
The parties dispute whether Robert was pushed back onto his bed the first time he
tried to stand. Whenever he was allowed to stand, all agree he turned on the light on his
ceiling fan. Robert then sat at his desk. He looked around and saw three law enforcement
officers in his bedroom. He then asked, “What the fuck is going on here? What is this,
Russia?” One of the officers again told him they had a search warrant. He replied “There’s
nothing here.”
When asked to identify himself, Robert identified himself as “Bob
Thoreson.” Robert was upset about the officers’ presence, and they tried to calm him.
When asked about his relationship with Daniel, he told the officers that they were brothers.
Suminski then realized the officers may have crossed the property line between the
brothers’ properties. Before leaving the home, one of the officers allegedly said, “Oh shit.”
Defendants contend that they were in Robert’s home for approximately two
minutes. At some point while in Robert’s residence, an officer looked in a large freezer
chest. They did not seize any property from Robert’s home. Agent Katchka did not know
that Benton, Morland and Suminski entered Robert’s residence until after the search was
concluded. Sergeant Benton now believes that he should have been informed about the
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location of the property line.
OPINION
Summary judgment is appropriate if the moving party shows that (1) “there is no
genuine dispute as to any material fact” and (2) it “is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The court’s role at summary judgment is not to “weigh
evidence, make credibility determinations, or decide which inferences to draw from the
facts”; rather, its role is “to determine whether there is a genuine issue of triable fact.”
Kirkwood v. DeLong, 683 F. Supp. 2d 823, 826 (N.D. Ind. 2010) (citations omitted).
Plaintiff brings his claim under § 1983. “To state a claim for relief under 42 U.S.C.
§ 1983, the [plaintiff] must allege: (1) [he was] deprived of a right secured by the
Constitution or laws of the United States, and (2) the deprivation was vested upon [him]
by a person or persons acting under color of state law.” Jones v. Wilhelm, 425 F.3d 455,
465 (7th Cir. 2005) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th
Cir. 2004)). While the parties agree that the defendants were acting under the color of
law, summary judgment is inappropriate here because there are too many material facts in
dispute as to the first requirement for any party to prevail on a claim or defense as a matter
of law.
The warrantless search of plaintiff’s home presumptively “violate[s] the Fourth
Amendment’s prohibition against unreasonable searches and seizures unless [it] fall[s] into
one of the numerous exceptions.” United States v. Starnes, 741 F.3d 804, 807 (7th Cir.
9
2013) (citing Kentucky v. King, 131 S. Ct. 1849, 1856 (2011)). 8 This is because “[t]he
sanctity of the home is a central concern of the Fourth Amendment.” United States v.
Etchin, 614 F.3d 726, 733 (7th Cir. 2010) (citing Payton v. New York, 445 U.S. 573, 586
(1980)). Moreover, “the home is sacred in Fourth Amendment terms not primarily because
of the occupants’ possessory interests in the premises, but because of their privacy interests
in the activities that take place within.” Id. at 734 (alteration added) (quoting Segura v.
United States, 468 U.S. 796, 798 (1984)) (internal quotation marks omitted). Indeed, the
Seventh Circuit has observed that “people have a strong interest . . . in keeping unwanted
strangers, including law enforcement officers, out of their home, and the interest is deemed
a reasonable one in our society.” United States v. Simms, 626 F.3d 966, 970 (7th Cir. 2010).
People also “have a similar interest in excluding strangers from the property that
immediately surrounds their house” -- the curtilage. Id.
Accordingly, in executing a search warrant, law enforcement officers must take due
care to protect the privacy interests of property owners by ascertaining that they are
searching the correct property. See Jones v., 425 F.3d at 465 (declining to find search of
incorrect apartment a valid warrant execution because a reasonable officer would have
recognized the warrant’s fatal ambiguity either before or after arriving at the apartment
building).
The strength of this right, the presumption it creates with respect to a
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”
U.S. CONST. Amend. IV. The Fourth Amendment is incorporated against the states by the
Fourteenth Amendment. See Zoretic v. Darge, 832 F.3d 639, 643 (7th Cir. 2016) (“The Fourth
Amendment’s protections against unreasonable searches and seizures is made applicable to state
actors under the Fourteenth Amendment.” (citing DKCLM v. Cnty. of Milwaukee, 794 F.3d 713,
714 (7th Cir. 2015))).
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warrantless home invasion, and the troubling record in this case, all raise legitimate factual
questions as to whether defendants took due care in both preparing to execute and actually
executing the subject warrant, as well as whether they were acting in good faith in doing
either.
The first material dispute concerns whether Agent Katchka and the other
defendants took reasonable care in advance of the warrant’s execution to avoid an unlawful
search of plaintiff’s home. The defendants do not even agree among themselves about
whether Katchka adequately informed the others about the location of the property line.
Katchka believes he did, while the other three defendants either do not recall being told
about the property line or left the pre-search meeting with a mistaken understanding of
the line’s location. This alone precludes summary judgment.
All of the defendants had an obligation to know the limits of the search warrant
before executing it. See Illinois v. McArthur, 531 U.S. 326, 330 (2001) (explaining that the
Fourth Amendment’s “‘central requirement’ is one of reasonableness” (quoting Texas v.
Brown, 460 U.S. 730, 739 (1983))). Given the defendants’ own factual disagreements, a
jury will have to decide whether defendant Katchka failed to educate the other defendants
properly, whether the other defendants failed to listen to Katchka’s instructions, or
whether the invasion of plaintiff’s home in presumptive violation of his Fourth
Amendment rights occurred despite the defendants’ reasonable planning efforts.
The next material dispute concerns whether defendants Morland, Suminski and
Benton exercised due care undertaking a protective sweep in the course of executing the
warrant. “A protective sweep is a quick and limited search of premises conducted to protect
11
the safety of police officers or others” and “is permissible because legitimate governmental
interests outweigh an individual’s interest in the protection of the Fourth Amendment.”
Starnes, 741 F.3d at 807-08 (citing Maryland v. Buie, 494 U.S. 325, 327, 331 (1990)). A
protective sweep is still a “search,” albeit one that is “permissible on less than probable
cause only because they are limited to that which is necessary to protect the safety of
officers and others.” Buie, 494 U.S. at 335 n.3. “A ‘search’ occurs when an expectation of
privacy that society is prepared to consider reasonable is ‘infringed.’” Kirkwood, 683 F.
Supp. 2d at 830 (citing United States v. Brock, 417 F.3d 692, 696 (7th Cir. 2005)). The
sweep itself must last “no longer than is necessary to dispel the reasonable suspicion of
danger,” and it must be cursory in nature, limited to “visual inspection of places where a
person might be hiding.” Starnes, 741 F.3d at 808 (citing Buie, 494 U.S. at 335-36).
Similarly, the requisite “reasonable suspicion of danger” must be “based on specific
and articulable facts which, taken together with the rational inferences from those facts,
reasonably warranted the officer in believing that the area swept harbored an individual
posing a danger to the officer or others.” Id. (quoting Buie, 494 U.S. at 327). “[M]ere
inchoate and unparticularized suspicion or hunch[es]” are insufficient. Id. (quoting Buie,
494 U.S. at 332). It is defendants’ burden to establish that the protective sweep was
warranted and that it did not exceed its legal scope. Kirkwood, 683 F. Supp. 2d at 831.
That said, the court has yet to find a single case upholding a protective sweep that crossed
12
property lines, let alone entering into a neighbor’s home. 9
Here, factual disputes abound as to whether defendants Morland, Suminski and
Benton were even conducting a reasonable protective sweep and whether they should have
(or did) know that they were crossing onto Robert’s property and ultimately barging into
his home in the early hours of October 17, 2015. As to the home invasion itself, defendants
repeatedly characterize the building as a “garage,” while plaintiff contends that the
structure was obviously a house. Even in the dark and under pressure to complete the
sweep, only a jury can decide whether in the dark defendants Morland, Suminski and
Benton reasonably believed that Robert’s home was a garage or someone’s home,
particularly when there is evidence they were told in advance that Robert’s home looked
like a garage.
Finally, the court must address defendants’ assertion of the doctrine of qualified
immunity, which protects government officials from lawsuits stemming from their
performance of discretionary functions, so long as “their actions could reasonably have
been thought consistent with the rights they are alleged to have violated.” Jones, 425 F.3d
at 460 (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). In determining whether
qualified immunity applies,
First, a court must decide whether the facts, when viewed in
the light most favorable to the plaintiff, indicate that the
officer’s conduct violated some constitutional right of the
plaintiff. Second, if the answer to the first question is “yes,”
then the court must determine whether the constitutional right
The court has, however, found a case affirming suppression of evidence where police searched a
second residence as an “outbuilding” of the property identified in the warrant because no reasonable
officer would have considered the second residence a “garage,” even though both were on the same
parcel. See People v. Nguyen, 219 Cal. Rptr. 3d 124 (Ct. App. 2017).
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was “clearly established” at the time of the alleged violation.
The officer will enjoy qualified immunity unless the court
affirmatively answers both questions.
Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
A right is “clearly established” when a reasonable officer would know that his
“conduct was unlawful in the situation he confronted.” Hernandez v. Cook Cty. Sheriff’s
Office, 634 F.3d 906, 915 (7th Cir. 2011) (quoting Saucier, 533 U.S. at 202). The court
“may properly take into account any information the defendant ought reasonably to have
obtained” in determining if his actions violated a clearly established right. Id. at 461.
Here, the factual disputes that preclude summary judgment on liability also
preclude summary judgment on defendants’ qualified immunity defense.
Whether
defendants Morland, Suminski and Benton had the right to cross the property line
separating Daniel’s property from Robert’s in order to conduct a protective sweep is
dependent on the reasonableness of: (1) the officers’ preparation before the execution of
the warrant; (2) the failure to recognize the property line in the dark; and (3) the
continuation of the protective sweep into plaintiff’s home.
These determinations are
themselves interrelated: Did the officers have reason to clear the outbuildings on Daniel’s
property under the circumstances? If the officers were adequately informed about the
property line, but they got confused, should they have known that plaintiff’s home was a
house and not a garage? Would a reasonable officer have made that realization while
prowling around the structure and peering in?
In reaching the ultimate question of good faith immunity, the court is in no way
dismissing the difficult position in which defendants were placed. In fact, the parties agree
14
that there were serious safety concerns involved in executing the subject search warrant
because Daniel’s drug associates were known to be violent. Daniel’s associates had been
involved in a robbery, shootout, substantial battery, attempted kidnapping, attempted
disarming of an officer, and vehicular theft. Daniel had also previously assaulted at least
one person at his home in connection with meth. Additionally, Daniel’s son, Daniel
Thoreson, Jr., used to live with his dad, and was known to be involved in meth distribution.
The officers further knew Daniel Jr. to be unstable, having previously attacked people, and
wearing body armor. Daniel Jr. was due to be released from incarceration around the time
of the search. 10 The defendants were purportedly aware of these facts, and they believed
there was a high probability of encountering dangerous and armed individuals during the
execution of the warrant. Indeed, law enforcement officers patrolled the perimeter in the
first place because of this concern.
On the fact here. the court is not in a position to conclude that qualified immunity
prevents plaintiff from recovering monetary damages arising out of the defendants’
presumptively unreasonable invasion of his home, at least when viewed in a light most
Daniel Jr.’s Rottweiler was also found on the property; Daniel Jr. was known for keeping this dog
with him. Defendants contend that the dog’s presence led them to believe Daniel Jr. was nearby.
Although not material given the other violent associates potentially on Daniel’s property, plaintiff
purports to dispute this fact, explaining that:
10
These officers did not know whether Daniel Thoreson, Jr., was still
incarcerated or not, but if he was incarcerated, his dog would
obviously have to be somewhere else, and his father’s rural
homestead would be one logical place. “Home is the place where,
when you have to go there / They have to take you in,” apparently
even if you’re just a Rottwei[ler].
(Pl.’s Resp. to Defs.’ PFOF (dkt. #51) ¶ 66.)
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favorable to plaintiff. Regardless, the court is not in a position to decide that question
without a full airing of the facts at trial. As to defendant Katchka, he may have the best
argument for qualified immunity because he did not enter plaintiff’s property at all, much
less his home. However, the court cannot make that decision without additional facts,
including whether he exercised due care in informing the other defendants about the
location of Robert’s property line and home. That, too, must await trial.
ORDER
IT IS ORDERED that:
1) Defendants’ motion for summary judgment (dkt. #39) is DENIED.
2) Plaintiff’s motion for partial summary judgment (dkt. #36) is DENIED.
Entered this 15th day of August, 2018.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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