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Cain v. City of New Orleans

United States District Court, E.D. Louisiana

February 3, 2017


         SECTION “R” (2)



         Plaintiffs Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights putative class action under 42 U.S.C. § 1983 seeking to declare the manner in which the Orleans Parish Criminal District Court collects post-judgment court costs from indigent debtors unconstitutional and other relief. Plaintiffs appeal from the Magistrate Judge's denial of their motion for leave to amend their complaint. For the following reasons, plaintiffs' appeal is granted in part and denied it part.

         I. BACKGROUND

         A. Factual Allegations

         Plaintiffs allege that the defendants maintain an unconstitutional scheme of jailing indigent criminal defendants and imposing excessive bail amounts for nonpayment “offenses” in an effort to collect unpaid court costs. According to plaintiffs, the Criminal District Court maintains an internal “Collections Department, ” informally called the “fines and fees” department, that oversees the collection of court debts from former criminal defendants. The “typical” case allegedly proceeds as follows.

         When a person is charged with a crime, the Criminal District Court judges first determine whether the criminal defendant is legally “indigent, ” which means they qualify for appointment of counsel through the Orleans Public Defenders under Louisiana Revised Statutes § 15:175 (2016). According to plaintiffs, 85% of the criminal defendants in Orleans Parish are legally indigent.[1] With assistance of counsel, the defendants either plead guilty to their criminal charges or proceed to trial. If convicted, the criminal defendants must appear before a judge for sentencing.

         At sentencing, in addition to imposing a term of imprisonment or probation, the judge may assess various “court costs” against the defendants. These costs may include restitution to any victim, a statutory fine, fees, or other costs imposed at the judge's discretion. According to plaintiffs, the discretionary assessments “fund the District Attorney's office, the Public Defender, and the Court, ” which rely on these collections “to fund their operations and pay employee salaries and extra benefits.”[2] Plaintiffs allege that the Criminal District Court judges impose court costs without inquiring into the criminal defendants' ability to pay.[3]

         If the criminal defendants cannot immediately pay in full, the judges allegedly direct them to the Collections Department. There, an employee allegedly imposes, at his discretion and without inquiring into a defendant's ability to pay, a payment schedule-usually requiring a certain amount per month.[4] Collections Department employees also allegedly warn defendants that failure to pay the monthly amount, in full, will result in their arrests. Plaintiffs contend that Collections Department employees refuse to accept anything less than full payment.[5]

         When criminal defendants fail to pay, a Collections Department employee allegedly issues a pre-printed warrant for the defendant's arrest by forging a judge's signature.[6] According to plaintiffs' allegations, the Collections Department often issues these warrants “years after a purported nonpayment, ” and the warrants are “routinely issued in error” or without regard to a debtor's indigence.[7]

         Plaintiffs also allege that each Collections Department arrest warrant is “accompanied by a preset $20, 000 secured money bond required for release.”[8] According to plaintiffs' allegations, the amount a debtor must pay to satisfy the $20, 000 secured money bond is often more than all of the debtor's outstanding court costs.[9] Plaintiffs allege that this “automatic $20, 000 secured money bond” is motivated by defendants' financial interest in state court arrestees' paying for their release.[10] Plaintiffs contend that the Criminal District Court judges collect 1.8% of each bond, while the Orleans Parish District Attorney's office, the Orleans Public Defenders' office, and the Orleans Parish Sheriff each collect 0.4% of each bond.[11]

         Plaintiffs allege that when criminal defendants are arrested for nonpayment, they are “routinely told” that to be released from prison, they must pay for the $20, 000 secured money bond, the entirety of their outstanding court debts, or some other amount “unilaterally determine[d]” by the Collections Department.[12] As a result, these indigent debtors allegedly “languish” in prison “indefinite[ly]” because they cannot afford to pay any of the foregoing amounts.[13] Although “arrestees are eventually brought to court, ” plaintiffs allege that defendants “have no set policy or practice” regarding how long arrestees must wait for a hearing.[14] According to plaintiffs, indigent debtors “routinely” spend a week or more in prison.[15]Plaintiffs allege that some arrestees, with help from family and friends, pay for their release without ever having a hearing and thus have “no opportunity to contest the debt or the jailing.”[16]

         When criminal defendants are brought to court, the judges allegedly send them back to prison if they are unable to pay their debts or release them “on threat of future arrest and incarceration” if they do not promptly pay the Collections Department.[17] The judges allegedly hold these brief “failure-to-pay hearings” without providing the debtors notice of the critical issues or considering the debtors' ability to pay.[18]

         Plaintiffs contend that these practices are unconstitutional under the Fourth and Fourteenth Amendments.

         B. Plaintiffs

         The named plaintiffs in the First Amended Complaint are six persons who were defendants in the Orleans Parish Criminal District Court-Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell.[19] During the criminal proceedings, Criminal District Court judges appointed counsel from the Orleans Public Defenders to represent each of the named plaintiffs, except Reynaud Variste, during their criminal proceedings.[20] Thus, the court must have determined that Cain, Brown, Reynajia Variste, Long, and Maxwell were legally indigent under Louisiana Revised Statutes § 15:175.[21] Reynaud Variste appears to have retained private counsel.[22]

         With the assistance of counsel, all of the named plaintiffs pleaded guilty to their respective criminal charges, including theft, [23] battery, [24] drug possession, [25] “simple criminal damage, ”[26] and disturbing the peace.[27] At plaintiffs' sentencings, the presiding judges imposed terms of imprisonment, which were often suspended, and terms of active or inactive probation. In addition, the judges assessed various court costs against plaintiffs, including restitution, fines, and/or discretionary fees and costs.[28] At some point, all of the named plaintiffs were subsequently arrested for failing to pay outstanding court costs on a warrant issued by the court's Collections Department.

         C. Claims in the First Amended Complaint

         Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging violations of their Fourth and Fourteenth Amendment rights, and violations of Louisiana tort law.[29] The First Amended Complaint named the following defendants: (1) The City of New Orleans, (2) Orleans Parish Criminal District Court (OPCDC), (3) Orleans Parish Sheriff Marlin Gusman, (4) Clerk of Court Arthur Morrell, (5) Judicial Administrator Robert Kazik, and (6) thirteen individual judges of the Orleans Parish Criminal District Court (the Judges). In their original and First Amendment complaints, plaintiffs primarily alleged claims against, and sought relief from, “Defendants” as a group, without distinguishing between different actors. The Court previously summarized plaintiffs' claims as follows:

(1) Defendants' policy of issuing and executing arrest warrants for nonpayment of court costs is unconstitutional under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment;
(2) Defendants' policy of requiring a $20, 000 “fixed secured money bond” for each Collections Department warrant (issued for nonpayment of court costs) is unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment;
(3) Defendants' policy of indefinitely jailing indigent debtors for nonpayment of court costs without a judicial hearing is unconstitutional under the Due Process Clause of the Fourteenth Amendment;
(4) Defendants' “scheme of money bonds” to fund certain judicial actors is unconstitutional under the Due Process Clause of the Fourteenth Amendment. To the extent defendants argue this scheme is in compliance with Louisiana Revised Statutes §§ 13:1381.5 and 22:822, governing the percentage of each surety bond that judicial actors receive, those statutes are unconstitutional;
(5) Defendants' policy of jailing indigent debtors for nonpayment of court costs without any inquiry into their ability to pay is unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment;
(6) Defendants' policy of jailing and threatening to imprison criminal defendants for nonpayment of court debts is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment because it imposes unduly harsh and punitive restrictions on debtors whose creditor is the State, as compared to debtors who owe money to private creditors;
(7) Defendants' conduct constitutes wrongful arrest under Louisiana law; and
(8) Defendants' conduct constitutes wrongful imprisonment under Louisiana law.

         In the First Amended complaint, Plaintiffs' request for relief sought: (1) declaratory judgements that “the Defendants'” actions violate plaintiffs' Fourth and Fourteenth Amendment rights; (2) an order enjoining “the Defendants” from enforcing the purportedly unconstitutional policies; (3) money damages for named plaintiffs; and (4) attorney's fees under §1983.

         After a round of motions, all claims against the City of New Orleans, the Orleans Parish Sheriff, and the Orleans Parish Criminal District Court were dismissed, along with claims against the remaining Judicial Defendants for monetary and injunctive relief.[30] The only remaining claims were for declaratory relief against the Judges and Administrator Kazik.

         A. Motion to Amend Complaint.

         After these dismissals, plaintiffs moved for leave to amend their complaint again.[31] The proposed amendments would return to this case claims against the three previously dismissed defendants: the City, the Sheriff, and OPCDC. Specifically, (1) the City would be added as a defendant in Count 1, plaintiffs' claim that City police officers execute the illegal warrants issued by the Court; (2) the Sheriff would be added as a defendant in Counts 1, 2, 3, 4, and 7; and (3) OPCDC would be added as a defendant in Counts 1, 2, 4, and 6. The proposed amendments specify which allegations and claims are asserted against each defendant. The proposed complaint also contains various additions, which are summarized as follows:

(1) Monique Merren is added as a named plaintiff;
(2) Additional allegations concerning the organizational structure of OPCDC;
(3) Additional allegations concerning written grievances sent to jail staff by Plaintiffs Cain and Maxwell during their incarceration;
(4) Additional allegations concerning how Collections Department employees “seek” and “issue” warrants;
(5) Additional allegations concerning disparate treatment between individuals jailed on Collections Department warrants and other arrestees, and the Sheriff's failure to bring fines and fees arrestees to court;
(6) Additional allegations concerning the City's knowledge of the number of arrests made by City police officers pursuant to Collections Department warrants, and new allegations regarding the City's knowledge of Collections Department practices.
(7) Additional allegations concerning the City's budgeting process and funding of the Collections Department.

         Plaintiffs' motion was submitted for decision by Magistrate Judge Wilkinson, and was opposed by the Judicial Defendants, the Sheriff, and the City.[32] Magistrate Judge Wilkinson issued an order denying plaintiffs motion.[33] Because the amendment was submitted well after the deadline for amendments previously set by the Court, Judge Wilkinson found under Fed.R.Civ.P. 16(b)(4) that none of the four factors considered when determining good cause to permit an untimely amendment supported granting plaintiffs' motion.[34] The Magistrate Judge found that all of plaintiffs' allegations concerning claims and defendants previously dismissed by order of the District Judge were not important under the Rule 16 analysis because they were futile.[35] Plaintiffs now appeal the order denying their motion to amend.[36]


         A magistrate judge's ruling on a non-dispositive civil motion may be appealed to the district court. Fed.R.Civ.P. 72(a). When a timely objection is raised, the district judge must review the magistrate judge's ruling and “modify or set aside any part of the order that is clearly erroneous or contrary to law.” Id. Under this standard, a magistrate judge's ruling “should not be rejected merely because the court would have decided the matter differently.” Arvie v. Tanner, No. 12-1638, 2012 WL 3597127, at *1 (E.D. La. Aug. 21, 2012) (internal quotations omitted). Instead, “[a] finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). A legal conclusion, however, is contrary to law “when the magistrate fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Ambrose-Frazier v. Herzing Inc., No. 15-1324, 2016 WL 890406, at *2 (E.D. La. Mar. 9, 2016). Therefore, the court applies plenary review to the Magistrate Judge's legal conclusions. See Haines v. Liggett Grp. Inc., 975 F.2d 81, 91 (3d Cir. 1992) (“[T]he phrase ‘contrary to law' indicates plenary review as to matters of law.”); Bruce v. Hartford, 21 F.Supp.3d 590, 594 (E.D. Va. 2014) (“For questions of law there is no practical difference between review under Rule 72(a)'s contrary to law standard and a de novo standard.” (internal quotations and modifications omitted)).

         The Magistrate Judge found that plaintiffs failed to demonstrate good cause to amend their pleadings. Rule 16(b) governs amendment of pleadings after a scheduling order deadline has expired. S&W Enters. v. SouthTrust Bank of Ala., 315 F.3d 533, 536 (5th Cir. 2003). Under that rule, the Court will modify the scheduling order, and apply Rule 15(a)'s liberal amendment standard, “[o]nly upon the movant's demonstration of good cause.” Id.; Fed.R.Civ.P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge's consent.”). To determine whether plaintiffs have shown good cause, the Court considers: (1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice. S&W Enters., 315 F.3d at 536 (quoting Reliance Ins. v. La. Land & Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)). Once a movant demonstrates good cause to modify the scheduling order, the “more liberal standard of Rule 15(a) appl[ies] to the district court's decision to grant or deny leave.” S&W Enters., 315 F.3d at 536; see also Fed. R. Civ. P. 15(a).

         The Magistrate Judge's order turned in part on his determination that all of plaintiffs' new allegations regarding previously dismissed claims and defendants were not important because they were inadequate to state a claim and therefore futile. The Court performs plenary review of these conclusions of law.

         An amendment is futile if it would be dismissed under a Rule 12(b)(6) motion. Marucci Sports, LLC v. Nat'l Collegiate Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014). To survive a Rule 12(b)(6) motion to dismiss, plaintiffs must plead enough facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

         Generally, a court ruling on a motion to dismiss may rely on only the complaint and its proper attachments. Fin. Acquisition Partners v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006). A court is permitted, however, to rely on “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The court may not consider new factual allegations made outside the complaint. See Fin. Acquisition Partners, 440 F.3d at 289.


         Plaintiffs propose to amend their complaint by adding a named plaintiff, presenting new factual allegations, and reasserting several previously dismissed claims. Specifically, plaintiffs seek to: (1) add Monique Merren as a named plaintiff; (2) reassert claims for non-declaratory relief against Judicial Administrator Kazik based on new allegations purportedly showing that he is not entitled to absolute quasi-judicial immunity; (3) reassert claims against OPCDC based on new allegations purportedly showing that it is not entitled to immunity under the Eleventh Amendment; (4) reassert Count One against the City for its alleged policies of executing invalid arrest warrants and funding the Collections Department; (5) reassert Count One against the Sheriff for his alleged detention of plaintiffs based on invalid arrest warrants; (6) reassert Count Three against the Sheriff for his alleged indefinite detention of plaintiffs; (7) reassert claims for prospective, injunctive relief against the City under Count One, and against the Sheriff under Counts One, Two, Three, and Four; and (8) reassert Count Seven against the Sheriff for his alleged wrongful arrest and imprisonment of plaintiffs under Louisiana tort law. The Magistrate Judge found that each of these proposed amendments was futile and therefore unimportant. The Court considers the proposed amendments in turn.

         A. Monique Merren

         Merren brings claims that essentially mirror those of the existing named plaintiffs. The Court finds no error in the Magistrate Judge's determination that adding a new plaintiff at this stage needlessly complicates the litigation, prejudices defendants and is unimportant to resolving the claims of existing plaintiffs. Plaintiffs' motion for leave to amend the complaint with allegations concerning Monique Merren is therefore properly denied.

         A. Judicial Administrator Kazik - quasi-judicial immunity

         The Court previously concluded that Kazik is protected by quasi-judicial absolute immunity and dismissed all of plaintiffs' non-declaratory claims against him.[37] Plaintiffs' amendments do nothing to disturb this conclusion. Plaintiffs have attempted to restyle their allegations against Kazik to assert that he seeks rather than issues warrants.[38] In doing so, plaintiffs hope to tie Kazik to decisions applying qualified immunity to police and probation officers who submit insufficient affidavits to magistrate judges in support of warrants. See, e.g., Malley v. Briggs, 475 U.S. 335, 343 (1986); Galvan v. Garmon, 710 F.2d 214, 215-16 (5th Cir. 1983). This reinterpretation of Kazik's role-as de facto police officer rather than stand-in judge-is undermined when plaintiffs' allegations are read as a whole. Plaintiffs' principal grievance is that the defendant judges have allegedly outsourced their job. Instead of performing the allegedly required willfulness inquiry, and then ordering arrest only if a defendant's failure to pay is found to be willful, the Judges have purportedly given Kazik and the Collections Department standing orders to issue warrants for any defendant who does not pay.

         It is clear that framed in this manner Kazik's alleged role in causing plaintiffs' injuries is fundamentally judicial. Unlike the officers in Malley and Galvan, Kazik does not ask for issuance of a warrant based on his own investigation. Rather, Kazik applies a formula for issuing warrants set by judges who are indisputably authorized to issue warrants on their own. This conclusion is further supported by the materials attached to plaintiffs' complaint. Exhibit 1, referenced in the proposed complaint, is a transcript of an evidentiary hearing concerning OPCDC Collections Department practices.[39] In the hearing, Shannon Sims, Deputy OPCDC Judicial Administrator, explains that the authority to issue Collections Warrants is given to the Collections Department by the judges of OPCDC.[40] According to Ms. Sims, one section of Court, Section A, issues its own warrants rather than delegating that responsibility to the Collections Department.[41] As made clear by Ms. Sims' testimony, when Kazik issues warrants he stands in the shoes of a judge under a judge's direction. When Kazik's authority to issue warrants is rescinded, a judge takes over. In this way Kazik allegedly “perform[s] functions comparable to those of judges, ” and is entitled to absolute immunity. Da Vinci Inv., Ltd. P'ship v. Parker, 622 F. App'x 367, 373 (5th Cir. 2015) (quoting Beck v. Tex. State Bd. of Dental Exam'rs, 204 F.3d 629, 634 (5th Cir. 2000)).

         Because Plaintiffs' new allegations concerning Kazik do not undermine the Court's earlier finding of quasi-judicial immunity, plaintiffs' attempt to reinstate claims for damages and injunctive relief against Kazik is futile, and good cause to permit this amendment after the Rule 16 deadline is not established.

         B. OPCDC - Eleventh Amendment immunity

         Plaintiffs offer a handful of amendments which purportedly undermine the Court's earlier ruling that plaintiffs' claims against OPCDC are barred by the Eleventh Amendment.[42] The Court finds that these minor tweaks cannot overcome the clear weight of precedent holding that OPCDC and similar entities are covered by the Eleventh Amendment.[43]

         Even if OPCDC's immunity were impacted by the proposed amendments, plaintiffs' claims against OPCDC must fail because it is not a “person” subject to suit under section 1983. See Dunn v. Louisiana, No. 10-4519, 2011 WL 445684, at *1 (E.D. La. Feb. 3, 2011) (adopting Report and Recommendation concluding that Section K of the Orleans Parish Criminal District Court is not a section 1983 person); see also Mumford v. Basinski, 105 F.3d 264, 267 (6th Cir. 1997) (“A state court is not a ‘person' for purposes of 42 U.S.C. § 1983 and hence is not subject to lawsuit under that statute.”). The Court therefore finds that plaintiffs' proposed amendments regarding OPCDC are futile.

         C. The City - Count One

         In Count One, plaintiffs allege that they have been arrested by City police officers, who execute the OPCDC warrants that were issued absent probable cause in violation of the Due Process Clause of the Fourteenth Amendment. The Court has already found that plaintiffs' allegations of arrest and detention pursuant to OPCDC collections department warrants issued absent probable cause adequately allege a constitutional violation.[44]Because the City is a municipal entity, plaintiffs' section 1983 claims against the City must satisfy the Supreme Court's test first articulated in Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978), before the City may be held liable.

         Plaintiffs point to two alleged city policies that are purportedly responsible for plaintiffs' illegal arrests: (1) that “[C]ity officials allow [the City's police] officers to execute warrants issued by the Collections [Department employees]” despite the City's knowledge that the warrants are invalid; and (2) that “City officials fund the salaries of the Collection [Department employees], ” despite knowing of the employees' allegedly invalid procedures for issuing warrants.[45] The Court considers these contentions in turn under the relevant Monell standards.

         i. Permitting Arrests on Invalid Warrants

         Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

         In section 1983 suits, municipalities cannot be held liable under a theory of respondeat superior. Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002). Instead, the Court must apply the Monell test, which ensures that cities are held responsible only for “their own illegal acts.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (emphasis in original). To state a claim under Monell, plaintiffs must allege the existence of (1) an official policy or custom, of which (2) a policymaker is charged with actual or constructive knowledge, and (3) a constitutional violation whose “moving force” is that policy or custom. Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010).

         Thus, a plaintiff seeking to impose liability on a municipality under section 1983 must “identify a municipal ‘policy' or ‘custom' that caused the plaintiff's injury.” Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403-04 (1997). A policy need not itself be unconstitutional to satisfy Monell. City of Canton v. Harris, 489 U.S. 378, 387 (1989) (“[W]e reject petitioner's contention that only unconstitutional policies are actionable under the statute.”). The Fifth Circuit has identified three ways in which plaintiffs may meet their burden to show a policy or custom. See Burge v. Par. of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999). The first two involve direct action by a “policymaker, ” either in the form of generally applicable policies or specific, directed actions. Id. The third involves a failure to act by policymakers when “the need to take some action to control [its agents] ‘is so obvious, and the inadequacy [of existing practice] so likely to result in a violation of constitutional rights, that the policymaker . . . can reasonably be said to be deliberately indifferent to the need.'” Id. (quoting Canton, 489 U.S. at 390). Since plaintiffs do not allege direct action by City policymakers, plaintiffs' allegations must satisfy the third method of showing a policy or custom.

         As noted, in addition to a policy or custom, plaintiffs must allege that the City's policy or custom is the moving force behind the constitutional violation. The “moving force” component of Monell liability is critical. Canton, 489 U.S. at 389 (holding that municipal liability can be found “only where [city's] policies are the moving force [behind] the constitutional violation” (internal quotations omitted)). The “moving force” element requires plaintiff to show “that, through its deliberate conduct, the municipality was the ‘moving force' behind the injury alleged.” Bryan Cty., 520 U.S. at 406 (emphasis in original). “‘[M]unicipal liability under § 1983 attaches where - and only where - a ...

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