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Morris v. Hickson

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 15, 2009

ROBERT MORRIS, PLAINTIFF,
v.
D. HICKSON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Introduction

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's July 7, 2009, motion to compel defendant Fry to provide further responses to interrogatories, requests for admissions and requests for production of documents. For the following reasons, the court orders that plaintiff's motion is granted in part and denied in part.

For the following reasons, the court reiterates that defendant Fry's objections to all at-issue discovery requests, save for valid privilege objections, are waived.

On June 12, 2009, the court issued an order addressing plaintiff's March 5, 2009, motion to compel and for sanctions. In this order, the court vacated the motion to compel as to defendant Fry because defendant Fry had served plaintiff with supplemental responses to discovery requests after the motion to compel was filed. The court granted plaintiff thirty days to file a renewed motion to compel as to defendant Fry. The court further ordered that all objections save for valid privilege objections had been waived as a sanction for counsel granting herself an extension of time to file the supplemental responses.

In opposition to the pending motion to compel, defendant Fry states that she did not supplement her responses to the request for production of documents. For that reason, defendant argues that the order finding objections waived save for valid privilege objections does not apply to her responses to the requests for production of documents.

In the declaration submitted in support of the opposition to plaintiff's earlier motion to compel, counsel stated:

6. Because I had difficulty establishing communication with Ms. Fry around the time period that her discovery responses were due on January 30, 2009 so that I could confirm their accuracy and obtain executed verifications, I served Ms. Fry's objections to Interrogatories, Requests for Admissions, and Request for Production of Documents to preserve the objections. I also wrote plaintiff on February 2, 2009, to explain, among other issues, that I had served Ms. Fry's objections to discovery so as not to waive them. This letter is attached to plaintiff's motion to compel as Exhibit 5. (CR 57 page 20-126.) On February 27, I personally saw Plaintiff for his deposition at Folsom State Prison, and I explained to him that I had served objections because Ms. Fry traveled frequently for work and that Defendant and I were not trying to be difficult or uncooperative. Plaintiff verbally stated his knowledge and understanding of this.

8. On March 2, 2009, Ms. Fry's supplemental objections and responses to Interrogatories (set 1) were served. Attached hereto as Exhibit A is a true and correct copy.

9. Because the number of requests in the Requests for Admissions (set 1), and the extensive time required for me to work with Ms. Fry on several occasions to prepare her responses during the time period she was available, I needed additional time to finalize her responses to the Requests for Admissions and obtain her executed verification, her supplemental objections and responses to the Requests for Admissions (set 1) were served on April 7. Attached hereto as Exhibit B is a true and correct copy of the supplemental responses.

Counsel's February 2, 2009, letter to plaintiff stated, in relevant part, On January 16, 2009, the Court granted my request for an extension of time to serve my clients' discovery responses, up to and including, January 30, 2009. The Court should have served you with a copy of this Order.

*******

Please be advised that due to Defendant Fry's out-of-state travel for work, I served Defendant Fry's objections to your discovery requests on January 30, 2009, in order to preserve her objections and not inadvertently waive them. I am working with Defendant Fry to provide supplemental responses to your extensive discovery requests and will be serving them shortly.

Court file document 57, p. 21 of 126.

In the June 12, 2009, order, the court observed that on March 2, 2009, counsel served plaintiff with defendant Fry's supplemental responses to interrogatories and requests for admissions, but did not provide the court with a copy of defendant Fry's supplemental responses to the request for production of documents. The court then went on to find that counsel had waived all objections but valid privilege objections:

Defendants' counsel is advised that he does not have the authority to grant counsel unilateral extensions of discovery deadlines to seek a second extension of time to serve plaintiff with defendant Fry's discovery responses. All objections save for valid privileged objections have been waived. Because the supplemental responses were served after plaintiff filed his motion to compel, plaintiff is granted thirty days from the date of this order to file a supplemental motion to compel...

June 12, 2009, order, p. 10.

The court found that defendant had waived all objections but for valid privilege objections as a sanction for counsel granting herself an extension of time to respond to the discovery requests. Counsel's February 2, 2009, letter to plaintiff did not state that counsel did not require additional time to prepare a supplemental response to the request for production of documents. Rather, the letter stated that counsel intended to serve plaintiff with supplemental responses to his "extensive discovery requests." Based on this statement, counsel reserved the right to serve plaintiff with supplemental responses to his request for production of documents if she so chose.

The bottom line is that counsel granted herself a request for extension of time to serve plaintiff with supplemental responses to all of his discovery requests, including the request for production of documents. On this basis the court found all objections, but for valid privilege objections, waived. That counsel chose not to serve plaintiff with supplemental responses to the request for production of documents does not change the grounds on which the sanction was imposed.

Background

To put plaintiff's motion in context, the court will describe the claims on which this action is proceeding. This action is proceeding on the original complaint filed December 29, 2006, as to defendants Hickison, Fry and Herrera.*fn1

Plaintiff alleges that on May 18 or 19, 2005, defendant Hickison made sexually inappropriate comments to him at his prison job. Plaintiff also alleges that defendant Hickison rubbed and touched his back. On May 24, 2005, defendant Hickison started yelling at inmate workers to get the carts out and take them to the building. Plaintiff told defendant's supervisor that this could not be done. Defendant Hickison told plaintiff that she would write him a chrono and give him an "A" day. She did not say that she was going to file a rules violation report against him.

On May 24, 2005, defendant Hickison was informed that plaintiff was going to file a staff complaint against her based on the sexual harassment. On May 25, 2005, defendant Hickison retaliated against plaintiff for his threat to file the staff complaint by dismissing him from his job and writing a false rules violation report. Plaintiff was later found not guilty of the rules violation report.

Plaintiff alleges that on June 20, 2005, defendants Fry and Herrera retaliated against plaintiff for pursuing his staff complaint against defendant Hickison by putting him in administrative segregation (ad seg). On August 12, 2005, defendant Fry retaliated against plaintiff again by placing a negative chrono in his C-file. Plaintiff was later transferred to a different prison.

As legal claims, plaintiff alleges that defendant Hickison violated his Eighth Amendment rights by sexually harassing him. Plaintiff also alleges that defendant retaliated against him for exercising his First Amendment rights.

Discussion

Request for Production of Documents

Plaintiff challenges defendant Fry's responses to request for production of documents nos. 1-9. The court will only address the valid privilege objections raised as to each request.

Request no. 1: "Each and every document that refers or relates to the training Defendant Hickison received in how to interact with inmates." Defendant objected that disclosure of these documents would violate defendant Hickison's state law right to privacy, the documents may be protected by attorney-client privilege and the work product doctrine and that she did not have the requested documents within her possession, custody or control.

Request no. 2: "Each and every document that you referred to in answering the complaint." Defendant objected that the disclosure of the documents would violate defendants' right to privacy under state law, and the documents may be protected by the attorney-client and work product doctrine.

Request no. 3: "Each and every document that pertaining to the investigation concerning Plaintiff's Morris's allegation that Defendant Hickison made sexual comments and lude [sic] remarks to him between January 1, 2005 and May 31, 2005." Defendant objected that disclosure of these document would violate defendant Hickison's right to privacy under state law, disclosure of the documents would compromise the safety and security of inmates and prison staff and violate their right to privacy, the documents may be protected by the attorney-client privilege and attorney work product doctrine, and the documents are not within defendant's possession, custody or control.

Request no. 4: "Each and every document that pertaining to the investigation concerning Inmate Lancaster E-96955 allegation that Defendant Hickson made sexual and lude [sic] remarks to Plaintiff Morris between January 1, 2005, and May 31, 2005." Defendant objected that disclosure of the requested documents would violate defendant Hickison's right to privacy, disclosure of the documents would compromise the safety of institution and inmates (including inmate Lancaster) and prison staff.

Request no. 5: "Each and every document pertaining to Plaintiff Morris's work performance while assigned to the Solano Prison clothing distribution." Defendant objected that the requested documents were not within her possession, custody or control.

Request no. 6: "Each and every document pertaining to reports of a staff misconduct against Defendant Hickson, Fry, and Herrera while employed by CDCR." Defendant objected that the requested documents were not within her custody, possession or control and that disclosure of the documents would violate the privacy rights of defendant.

Request no. 7: "Each and every document that refers or relates to the policies and procedures that must be followed when an inmate alleges staff misconduct of a sexual nature." Defendant objected that the requested documents were not within her possession, custody or control.

Request no. 8: "Each and every document that refers or relates to the policies and procedure that must be followed when an inmate alleges staff misconduct of retaliation." Defendant objected that the requested documents were not within her possession, custody or control.

Request no. 9: "Each and every document that you identified in your responses to plaintiff's interrogatories to Defendant Fry [set no. 1.]." Defendant incorporated all of the objections asserted to plaintiff's interrogatories.

In the motion to compel, plaintiff argues that because defendant Fry jointly responded to an earlier request for production of documents, her claim that she does not have access to documents is disingenuous. Plaintiff also argues that defendant's objections of privacy, attorney-client and work-product privilege are not directed to any particular document.

In opposition, defendant argues that her responses were appropriate. In response to request nos. 1, 3, 5, 6, 7 and 8 defendant Fry stated that she did not have the requested documents in her custody, possession or control. In the opposition, defendant also argues that she does not have the requested documents sought in request nos. 2 and 4 in her custody, possession or control. In counsel's declaration attached to the opposition, counsel states that defendant Fry no longer works at California State Prison-Solano, where plaintiff was housed in 2005, or at Folsom State Prison, where he is currently housed. Defendant Fry works out of CDCR headquarters. Regarding request no. 2, which seeks all documents referred to in the complaint, the opposition states that the only documents in defendant's possession or control would be those documents attached to plaintiff's pleadings, which he already possesses.

Defendant's "objection" that the documents sought in request for production of documents are not in her custody, possession or control is a valid response. Defendant no longer works at the prison where the deprivations allegedly occurred. That defendant jointly responded to an earlier request for production of documents does not undermine this request. One of the other two defendants apparently had in their possession the requested documents. For these reasons, the motion to compel is denied as to these requests. The court need not address defendant's other privilege objections.

As for request no. 9, plaintiff's motion to compel does not specifically address the documents referred to by defendant in response to interrogatories. It is not the court's duty to review all of the interrogatory responses to determine whether any of the documents defendant referred to should not produced. Because the motion to compel as to this request is not adequately supported, the motion to compel as to request no. 9 is denied.

Interrogatories

Plaintiff objects to defendant's responses to interrogatories nos. 1, 3, 7, 13, 15 and 17.

Interrogatory no. 1 asks,

For each and every individual that took any part in the investigation of plaintiff Morris's allegation that Defendant Hickison made sexual comments and lude [sic] remarks to him between January 1, 2005 and May 31, 2005, please state the following:

(a) their name, title, address, and telephone number;

(b) description of the part they took in the investigation; and

(c) description of each and every fact they discovered.

Interrogatory no. 3 asked, For each and every individual that gave an oral or written statement concerning the investigation of plaintiff Morris's allegations that defendant Hickison made sexual comments and lude [sic[ remarks to him between January 1, 2005 and May 31, 2005, please state the following:

(a) the date the statement(s) were made;

(b) whether the statements were oral or written;

(c) the name, address and telephone number of the individual(s) who made the statement(s);

(d) the name, address and telephone numbers of the individual(s) who heard the statement(s);

(e) the name, address and telephone number of the individual(s) who possess the statement(s) if they are written or were recorded.

Defendant's supplemental response to interrogatories nos. 1 and 3 is identical. In her supplemental response, defendant objected that these interrogatories sought information related to the institution's policies, procedures and investigations, and that disclosure of such information would compromise the safety and security of inmates, violating their right to privacy. Without waiving objection, defendant answered that she did not recall; she was not personally involved in any such investigation and she has no personal knowledge or information of who took part in it. Defendant referred plaintiff to the August 5, 2005, Confidential Information Disclosure Form, attached as exhibit 8 to plaintiff's request for admission, set one. Moreover, in a confidential investigation, the identities of any witnesses who provided information and the information obtained, are privileged and confidential, and not disclosed to the inmate due to institutional safety and security.

In the motion to compel, plaintiff argues that defendant Fry's claim that she does not recall, has no personal knowledge of the investigation and has no personal knowledge of who took part in it is disingenuous. In support of this argument, plaintiff refers to an Administrative Segregation Placement Notice form attached as an exhibit to his motion to compel. Exhibits, p. 241. This form was signed by defendant Herrera on June 20, 2005, and states that plaintiff was placed in administrative segregation on that date because he made an allegation of staff misconduct. The form contains a section titled "Administrative Review." This section contains defendant Fry's signature on June 21, 2005, and seems to include her decision to retain plaintiff in administrative segregation pending a review by the Institutional Classification Committee because plaintiff's release to the general population would jeopardize the integrity of the investigation.

In the opposition to the pending motion to compel, defendant addresses only interrogatory no. 3. Defendant states that she cannot provide contact information regarding inmate witnesses when she was not part of any such investigation and has no personal knowledge or information regarding it. Defendant observes that plaintiff does not contend that defendant was part of the investigation or otherwise privy to the inmate witnesses' confidential identifies or details.

The Administrative Segregation Placement form plaintiff refers to in the motion to compel does not suggest that defendant Fry was part of the investigation. That defendant Fry reviewed the decision to place plaintiff in administrative segregation does not prove that she was part of the investigation or otherwise had knowledge of the witnesses involved. Because plaintiff does not appear to claim, or provide evidence, that defendant Fry was part of the investigation, defendant's response to interrogatories nos. 1 and 3 that she was not personally involved and has no knowledge of it is valid. Accordingly, the motion to compel as to these interrogatories is denied.

Interrogatory no. 7 asked, "Please state each and every fact used to make the determination that plaintiff Morris should be placed in administrative segregation on June 20, 2005, based on his allegation of staff misconduct by defendant Hickison." In her supplemental response, defendant objected that the information sought was related to the institution's policies, procedures and investigations, and that disclosure of the information could compromise the safety and security of inmates and prison staff and violate their right to privacy. Without waiving said objections, defendant responded that plaintiff was placed in administrative segregation on June 20, 2005, in accordance with the California Code of Regulation, Title 15 section 3335(a), which states in relevant part: "When an inmate's presence in an institution's general inmate population presents an immediate threat to the safety of the inmate or others, endangers institutional security or jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity, the inmate shall be immediately removed from general population and placed in administrative segregation."

In the motion to compel, plaintiff objects that defendant Fry did not state why he was placed in administrative segregation. In the opposition, defendant states that this interrogatory was also part of plaintiff's prior motion to compel further responses from defendant Herrera, and the court determined that defendant Herrera's response, which was substantially identical to defendant Fry's response, was adequate.

Defendant Herrera responded to this interrogatory that "[i]n accordance with institution policies and procedures, inmate Morris made allegations of staff misconduct and he was re-housed in administrative segregation to protect the integrity of the investigation because he was deemed a threat to the safety and security of the institution." The court found adequate defendant Herrera's response that plaintiff was placed in administrative segregation because he was deemed a threat to the safety and security of the institution based on his allegations of staff misconduct. Defendant Fry, on the other hand, did not offer the same response as defendant Herrera. Instead, defendant Fry quoted from the regulations.

Plaintiff's objection that defendant Fry did not state why plaintiff was placed in administration segregation has merit. Accordingly, within ten days of the date of this order, defendant Fry shall provide a further response to this interrogatory. Defendant's objection that responding to this interrogatory would violate the safety and security of inmates and prison and violate their right to privacy is without merit. Other than the conclusory assertion of this objection, defendant does not specifically explain how disclosing why plaintiff was placed in administrative segregation implicates safety and privacy concerns.

Interrogatory no. 13 asked, "Please state each and every fact used to make the determination that plaintiff Morris should not be placed in administrative segregation on May 31, 2005, based on his allegation of staff misconduct by defendant Hickison which was presented in the CDC 602 appeal (Log No. 05-01528)."

In opposition to the motion to compel, defendant observes that this interrogatory was also part of plaintiff's prior motion to compel against defendant Herrera. The court found this interrogatory to be confusing and non-sensical. Defendant argues that her response was appropriate as the interrogatory was confusing and practically impossible to answer.

While the court found that defendant waived all objections but for valid privilege objections, the court cannot require defendant to respond to an interrogatory which the court does not understand. Because interrogatory no. 13 is confusing, no further response is required.

Interrogatory no. 15 asked, "Please state each and every fact used as the basis for transferring plaintiff Morris from Solano State Prison to Avenal State Prison."

In her supplemental response, defendant objected to this interrogatory on grounds that as currently phrased, it sought information regarding the institution's policies, procedures and investigations which, if disclosed, could compromise the safety and security of inmates and prison staff and violate their rights of privacy and confidentiality. Without waiving objections, defendant responded that she does not know, because she did not personally make or participate in the decision to transfer plaintiff to Avenal. Defendant referred plaintiff to exhibit 13 (attached to his request for admissions, set one) dated October 6, 2005, in which defendant, along with the other members of the ICC elected to refer plaintiff to CSR for recommended transfer to CTF/CMC-W-II with the appropriate security level.

In the motion to compel, plaintiff argues that defendant's response contradicts a statement she made in an Administrative Segregation Placement Notice form dated August 15, 2005. See Plaintiff's Exhibits to Motion to compel, p. 244. This form contains a statement by C.L. Parks on August 12, 2005, regarding why plaintiff was retained in administrative segregation. C.L. Parks states that following an investigation into plaintiff's allegations against defendant Hickison, it was determined that plaintiff's allegations were complete fabrications but there was insufficient information gathered to support a finding of guilt at a disciplinary hearing. C.L. Parks states that plaintiff is being retained in administrative segregation until he can be transferred to an alternate institution.

On August 15, 2005, defendant Fry signed the Administrative Segregation Placement Notice form as part of an administrative review. Defendant Fry agreed that plaintiff should be retained in administrative segregation because his release to the general population posed a danger to staff.

The form plaintiff cites in his motion to compel, and defendant Fry's comments therein, do not demonstrate that she had personal knowledge as to the facts relied on for the decision to transfer plaintiff to Avenal. Defendant's answer that she does not know the facts behind the decision is adequate.

Interrogatory no. 17 asked, "In the event you deny any admission PLAINTIFF'S REQUEST FOR ADMISSIONS TO DEFENDANT FRY [SET NO. 1] in whole or in part, state each and every fact upon which your denial is based." In her supplemental response, defendant objected to this interrogatory on grounds that as currently phrased, it sought information regarding the institution's policies, procedures and investigations which, if disclosed, could compromise the safety and security of inmates and prison staff and violate their rights of privacy and confidentiality. Defendant also objected to the interrogatory on grounds that it sought to invade the attorney-client privilege and work product doctrine.

In the motion to compel, plaintiff argues that defendant does not identify which of her objections apply to each request for admissions. While this is true, the motion to compel does not address any specific request for admissions. Plaintiff does not argue, for example, that defendant's objection are inapplicable to request for admissions no. 4. Because of the broad scope of interrogatory no. 17, plaintiff's motion to compel regarding this interrogatory is inadequate.

Request for Admissions

At issue are defendant Fry's responses to request for admissions nos. 1, 26, 31 and 61.

Request for admission no. 1 asked, "Admit that on May 31, 2005, Plaintiff Morris filed a stamp complaint against Defendant Hickison for sexual misconduct via a CDC 602 appeal (Log. No. 05-01528)." In her supplemental response, defendant objected that the request sought information outside the scope of her personal knowledge that would enable her to admit or deny the request. Without waiving objection, defendant responded that she was without sufficient knowledge or readily obtainable information to either admit or deny this request, because she was not involved in this appeal regarding plaintiff, and she had no personal knowledge regarding the appeal.

In the motion to compel, plaintiff argues that defendant's response conflicts with her production of a CDC 602 appeal in response to plaintiff's first request for production of documents. Plaintiff's first request for production of documents was addressed to all three defendants. For that reason, the court does not find that the production of the at-issue CDC 602 in response to that request necessarily means that defendant Fry had knowledge of plaintiff's appeal.

In the motion to compel, plaintiff also argues that defendant's response conflicts with her decision to uphold plaintiff's placement and retention in administrative segregation. The administrative segregation notice plaintiff cites, signed by defendant Fry on June 21, 2005, states, "On June 20, 2005, you Inmate R. Morris, D-13147, 13-B-1-U, are being re-housed in administrative segregation (Ad/Seg). Specifically, on this date you made allegations of staff misconduct..." Plaintiff's Exhibits, p. 241. This form does not state that plaintiff filed a 602 on May 31, 2005.

Plaintiff also cites the administrative placement notice form signed by defendant Fry on August 15, 2005. Plaintiff's Exhibits, p. 244. This form also makes no mention of a 602 filed by plaintiff on May 31, 2005.

Defendant's answer that she has no personal knowledge of the appeal because she was not involved in it is an adequate response.

Request for admission no. 26 asked, "Admit that on June 20, 2005, a hearing was conducted to adjudicate the CDC 115 written by Defendant Hickison against Plaintiff Morris (described in admission no. 15)." In her supplemental response, defendant objected that the request sought information outside the scope of her personal knowledge that would enable her to admit or deny the request. Without waiving objection, defendant responded that she was without sufficient knowledge or readily obtainable information to either admit or deny this request, because she was not involved in this appeal regarding plaintiff, and she had no personal knowledge regarding the hearing for the Rules Violation Report."

Plaintiff argues that defendant's response conflicts with her production of a CDC 602 appeal in response to plaintiff's first request for production of documents. Plaintiff's first request for production of documents was addressed to all three defendants. For that reason, the court does not find that the production of the at-issue CDC 602 in response to that request necessarily means that defendant Fry had knowledge of the document. Moreover, it is unclear how production of a response to a CDC 602 demonstrates defendant's knowledge of the disciplinary hearing.

Plaintiff also argues that defendant's response conflicts with her use of the events of the disciplinary hearing to place plaintiff in administrative segregation. The court has reviewed the administrative placement form cited by plaintiff and finds that it does not discuss the disciplinary hearing. See Plaintiff's Exhibits, p. 241.

Defendant's response to request no. 26 that she could not admit or deny the request because she had no personal knowledge of the rules violation report is adequate.

Request no. 31 asked, "Admit that from May 31, 2005 through June 19, 2005, plaintiff Morris was not placed in administrative segregation at Solano Prison based on his allegations of staff misconduct against Defendant Hickison." In her supplemental response, defendant objected that the request sought information outside the scope of her personal knowledge that would enable her to admit or deny the request. Without waiving objection, defendant responded that she was without sufficient knowledge or readily obtainable information to either admit or deny this request, because she was not involved in this appeal regarding plaintiff, and she had no personal knowledge or recollection of plaintiff's placement in administrative segregation during May 31, 2005, through June 19, 2005.

The court does not understand request no. 31. It is unclear if plaintiff is asking defendant to admit that he was placed in administrative segregation from May 31, 2005, for reasons other than his allegations of staff misconduct, or whether is asking defendant to admit that between those dates he was not placed in administrative segregation at all. Although defendant does not specifically argue that he does not understand the request, she made this argument regarding the similarly worded interrogatory no. 13. The court cannot order a further response to a discovery request that it does not understand. For that reason, the motion to compel as to request no. 31 is denied.

Request no. 61 asked, "Admit that the document(s) attached hereto as exhibit 3 are true and correct copies of CDC 602 Appeal, dated May 31, 2005, and responses (Log No. CSP S-05-01528), and said document(s) is entitled to be admitted in evidence herein pursuant to Rule 803(6), Federal Rules of Evidence." In her supplemental response, defendant objected that the request sought information outside the scope of her personal knowledge that would enable her to admit or deny the request. Without waiving objection, defendant responded that she was without sufficient knowledge or readily obtainable information to either admit or deny this request, because she did not create, was not the recipient of, and does not have personal knowledge regarding the documents plaintiff attached to this request as Exhibit 3.

In essence, request no. 61 asks defendant Fry, a non-lawyer, for a legal opinion. Surprisingly, defendant's response does not mention this issue in her response to request no. 61. In any event, defendant's response that she cannot admit or deny whether the documents are true and correct copies because she did not create them is adequate. No further response is required.

Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to compel (no. 65) is granted with respect to interrogatory no. 7; within ten days of the date of this order, defendant shall provide plaintiff with a supplemental answer to interrogatory no. 7; the motion to compel is denied in all other respects.


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