(PC) Tilei v. Wan et al, No. 1:2006cv00776 - Document 111 (E.D. Cal. 2011)

Court Description: ORDER DENYING Plaintiff's 92 Motion for Assistance Facilitating Communication with Inmate Witnesses, with Prejudice; ORDER CLOSING Discovery signed by Magistrate Judge Gary S. Austin on 1/13/2011. (Sant Agata, S)

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(PC) Tilei v. Wan et al Doc. 111 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 PUNAOFO TSUGITO TILEI, 11 1:06-cv-00776-OWW-GSA-PC Plaintiff, 12 v. 13 ORDER DENYING PLAINTIFF’S MOTION FOR ASSISTANCE FACILITATING COMMUNICATION WITH INMATE WITNESSES, WITH PREJUDICE (Doc. 92.) T. WAN, et al., 14 ORDER CLOSING DISCOVERY Defendants. 15 / 16 17 I. RELEVANT PROCEDURAL HISTORY 18 This is a civil rights action filed pursuant to 42 U.S.C. § 1983 and California law by Punaofo 19 Tsugito Tilei (“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis. This action is 20 proceeding on Plaintiff’s amended complaint, filed July 30, 2007, against defendants Wan, 21 Gallagher, and Cooper (“Defendants”) for retaliation in violation of the First Amendment, and for 22 denial of due process in violation of the Fourteenth Amendment.1 (Doc. 16.) The events at issue 23 in this action occurred at the California Substance Abuse Treatment Facility and State Prison 24 (“SATF”) in Corcoran, California, in 2005. 25 On September 10, 2009, and again on January 8, 2010, Plaintiff filed motions for court orders 26 to communicate with his inmate witnesses. (Docs. 62, 76.) On January 22, 2010, the Court issued 27 28 1 All other claims were dismissed from this action by the Court on July 8, 2008. (Doc. 26.) 1 Dockets.Justia.com 1 an order denying Plaintiff’s motions, without prejudice to renewal with a factual showing that the 2 witnesses possess relevant knowledge, within forty-five days. (Doc. 89.) On March 1, 2010, 3 Plaintiff renewed the motion, seeking a court order assisting with facilitation of communication with 4 fifteen inmate witness. (Doc. 92.) On October 8, 2010, the Court issued an order requiring 5 Defendants to file a response to Plaintiff’s motion. (Doc. 106.) On November 24, 2010, Defendants 6 filed a response to the motion. (Doc 110.) Plaintiff has not filed a reply. 7 II. PLAINTIFF’S ALLEGATIONS AND CLAIMS 8 In the amended complaint, Plaintiff claims that Defendants retaliated against him for his 9 participation in legal activities, and violated his rights to due process, when they retained him in 10 administrative segregation (“Ad-Seg”) and transferred him to another prison. Plaintiff claims that 11 the reason Defendants gave for placing him in Ad-Seg – that an anonymous source stated Plaintiff’s 12 life was possibly in danger from enemies – was false. 13 14 In their response to Plaintiff’s motion for leave to correspond with inmate witnesses, Defendants summarize Plaintiff’s allegations and their defense as follows: 15 “Plaintiff alleges that he was placed in administrative segregation in retaliation for sending a complaint to the Ombudsman and Internal Affairs. Plaintiff’s story is that he notified Defendant Wan that an inmate had been assaulted by an officer while the inmate was in the shower. Plaintiff claims that Defendant Wan was upset when he found out that Plaintiff had notified prison officials in CDCR headquarters about the alleged assault. Plaintiff claims that Defendant Wan showed him the confidential investigatory file and berated Plaintiff for going behind his back. Plaintiff claims that he was placed in administrative segregation, on the pretext that his safety was in danger if he remained in the general population. Plaintiff claims that his removal from general population and his later transfer to another prison was in retaliation for sending the complaint about the alleged assault to [the] CDCR Ombudsman and Internal Affairs. (First Amended Complaint, CR 16.) 16 17 18 19 20 21 22 Defendants contend that there was a legitimate penological reason to remove Plaintiff from the general population, that the information came originally from an unsigned note, and when other information confirmed the threat, Plaintiff had to be transferred for his own safety. Prison officials have a constitutional duty to take measures they believe are appropriate to protect the safety of every prisoner in their custody. Farmer v. Brennen, 511 U.S. 825, 833 (1994).” 23 24 25 (Response to Motion, Doc. 110 at 3-4.) 26 27 /// 28 /// 2 1 1. Retaliation 2 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 3 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because 4 of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his 5 First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 6 goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 7 With regard to transfer, prison inmates do not have a constitutional right to be incarcerated 8 at a particular correctional facility or to be transferred from one facility to another. Meachum v. 9 Fano, 427 U.S. 215, 224-25 (1976). However, prison officials may not “transfer an inmate to 10 another prison in retaliation for the inmate’s exercise of his First Amendment rights . . . .” Pratt v. 11 Rowland, 65 F.3d 802, 806 (9th Cir. 1995). To establish a prima facie case, plaintiff must allege and 12 show that defendants acted to retaliate for his exercise of a protected activity, and defendants’ actions 13 did not serve a legitimate penological purpose. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 14 1994); Pratt, 65 F.3d at 807. 15 To succeed on his claim for retaliation, Plaintiff must prove that Defendants retained him in 16 Ad-Seg, and/or transferred him to another facility, because of his participation in legal activities, and 17 Defendants’ actions did not advance a legitimate correctional goal. 18 2. Due Process 19 In order to state a cause of action for deprivation of procedural due process, a plaintiff must 20 first establish the existence of a liberty interest for which the protection is sought. Liberty interests 21 may arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466- 22 68 (1983). The Due Process Clause itself does not confer on inmates a liberty interest in being 23 confined in the general prison population instead of administrative segregation. See Id. Liberty 24 interests created by prison regulations are limited to freedom from restraint which “imposes atypical 25 and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin 26 v. Conner, 515 U.S. 472, 484 (1995). 27 Plaintiff is entitled to very limited due process protections under federal law with respect to 28 placement in Ad-Seg. See Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986). That 3 1 Defendants may have failed to comply with state regulations is not grounds for relief under section 2 1983 for deprivation of due process. Due process requires only that prison officials “hold an 3 informal nonadversary hearing within a reasonable time after the prisoner is segregated,” that prison 4 officials “inform the prisoner of the charges against [him] or the reasons for considering 5 segregation,” and that the prisoner be allowed “to present his views.” Id. 6 To succeed on his claim for due process violations, Plaintiff must first prove that his retention 7 in Ad-Seg imposed an “atypical and significant hardship in relation to the ordinary incidents of 8 prison life.” Second, Plaintiff must prove he was not given a proper hearing before he was placed 9 in Ad-Seg. 10 III. MOTION FOR LEAVE TO CORRESPOND WITH INMATE WITNESSES 11 Inmates may only correspond with one another if they obtain written authorization from the 12 appropriate prison officials. Cal. Code Regs., tit. 15 § 3139 (2010). Further, the Court does not have 13 jurisdiction in this action over anyone other than Plaintiff and Defendants, and cannot order that 14 Plaintiff be allowed to correspond with his witnesses. E.g., City of Los Angeles v. Lyons, 461 U.S. 15 95, 102, 103 S.Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation 16 of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757-58 (1982); Jones v. City of Los 17 Angeles, 444 F.3d 1118, 1126 (9th Cir. 2006). 18 Plaintiff requests a court order facilitating Plaintiff’s communication with fifteen inmate 19 witnesses, to enable him to undertake a legal investigation “in the manner that an attorney would.” 20 (Motion at 1.) Plaintiff submits evidence that he has made requests to prison officials to be allowed 21 to contact witnesses, without success. In his motion, Plaintiff identifies each witness, describes his 22 relationship with the witness, and discusses the knowledge possessed by the witness and how he 23 believes it is relevant to Plaintiff’s claims. 24 In their response, Defendants first argue that Plaintiff has not exhausted the procedures 25 available to him at SVSP for approval of his correspondence requests. Plaintiff claims he sent a 26 letter to his counselor, J. Guglielmo, but did not receive a response. (Motion, Doc. 92 at p. 3 of 18, 27 ¶¶5-6.) Plaintiff also claims he then submitted a Request for Interview form to Guglielmo, and a 28 letter to the Warden. (Id. at ¶¶6-7.) Plaintiff claims he received no response to any of his requests 4 1 and asserts that : “prison officials are not going to assist me in suing their comrads (sic).” (Motion, 2 Id. at p. 3-4 of 18, ¶¶5-8.) Defendants submit evidence that Plaintiff’s counselor, J. Guglielmo, 3 never received a letter or Request for Interview form from Plaintiff. (Decl. of Guglielmo, Doc. 110, 4 Exh. A at ¶1.) Defendants maintain that if Plaintiff did not receive a response, he should have 5 submitted an administrative appeal. (Id. at ¶5.) Plaintiff attended a classification hearing on 6 December 22, 2009 and was provided an opportunity to review his prison file, supervised by 7 Guglielmo, but Plaintiff did not mention correspondence with other inmates to Guglielmo on either 8 occasion. (Id. at ¶4; Exh. B.) 9 Defendants also argue that Plaintiff’s motion should be denied because the claimed witnesses 10 are cumulative or have information that is not relevant. The Court here lists each of Plaintiff’s 11 prospective witnesses and the testimony expected by Plaintiff, together with Defendants’ responses. Danny Torres, CDCR# P-023282 12 (1) 13 Danny Torres (“Torres”) was housed one cell below Plaintiff in Ad-Seg. Torres can testify 14 that prison officials attempted to house Torres as Plaintiff’s cell mate in Ad-Seg. Torres can also 15 testify that inmates are ordinarily allowed to sign a document releasing officials from liability, 16 allowing the inmate to return to a facility where problems for the inmate existed, and that inmates 17 are usually given documentation of information by confidential informants against them. Plaintiff 18 was not allowed either of these options. 19 Defendants argue that Torres’ knowledge has no possible relevance to Plaintiff’s case. 20 Defendants contend that the fact that a decision was made that Plaintiff could safely be celled with 21 one individual in Ad-Seg does not mean that Plaintiff’s safety was not in danger in the general 22 population. Defendants argue that the type of document allowing inmates to return to a problem 23 facility is not a waiver of liability, and information about this document is irrelevant because the 24 document requires two inmates to agree they are not enemies, and in Plaintiff’s case the information 25 about the threat to Plaintiff’s safety was from an anonymous source. 26 /// 27 28 2 Motion, Doc. 92 at p. 4 of 18, ¶(i). 5 Emi Tavanuu, CDCR# Unknown3 1 (2) 2 Emi Tavanuu (“Tavanuu”) is Plaintiff’s friend and relative who was also in custody at SATF 3 in Facility C, but in another building. Tavanuu can testify that he told defendant Wan that the 4 information about Plaintiff being in danger was false, statements that should have been documented 5 during the investigation. 6 Defendants argue that it is irrelevant for an inmate to testify that Plaintiff was not in danger, 7 because the question is whether or not there was a threat to Plaintiff’s safety that needed to be 8 investigated. 9 (3) Vikram Sood, CDCR# P-803434 10 Vikram Sood (“Sood”) was Plaintiff’s neighbor at SATF in Bldg 2 C-section for a time. 11 Sood can testify that he told defendant Wan that the information about Plaintiff being in danger was 12 false, statements that should have been documented during the investigation. 13 Defendants argue that it is irrelevant for an inmate to testify that Plaintiff was not in danger, 14 because the question is whether or not there was a threat to Plaintiff’s safety that needed to be 15 investigated. Michael Ta, CDCR# T-052405 16 (4) 17 Michael Ta (“Ta”) was Plaintiff’s cell mate for several months. Ta can testify that he told 18 defendant Wan that the information about Plaintiff being in danger was false, statements that should 19 have been documented during the investigation. 20 Defendants argue that it is irrelevant for an inmate to testify that Plaintiff was not in danger, 21 because the question is whether or not there was a threat to Plaintiff’s safety that needed to be 22 investigated. 23 /// 24 /// 25 26 3 Id. at p. 5 of 18, ¶(ii). 27 4 Id. at p. 6 of 18, ¶(iii). 28 5 Id. at p. 7 of 18, ¶(iv). 6 Thailee Nguon, CDCR# T-999246 1 (5) 2 Thailee Nguon (“Nguon”) was Plaintiff’s cell mate for the months just before Plaintiff was 3 taken to Ad-Seg. Nguon can testify that he told defendant Wan that the information about Plaintiff 4 being in danger was false, statements that should have been documented during the investigation. 5 Defendants argue that it is irrelevant for an inmate to testify that Plaintiff was not in danger, 6 because the question is whether or not there was a threat to Plaintiff’s safety that needed to be 7 investigated. Carlos Sosa (CDCR# J-06662) & Ludrate Burton (CDCR# J-96480)7 8 (6) & (7) 9 Carlos Sosa (“Sosa”) and Ludrate Burton (“Burton”) were both housed at SATF in Facility 10 C, Building 4. Sosa and Burton can testify about the content of Plaintiff’s administrative complaint 11 about the assault of an officer on an inmate. Plaintiff claims their testimony will correlate with a 12 confidential file Wan showed Plaintiff, impeaching any claim by Wan that no confidential file exists. 13 Defendants argue that neither Sosa nor Burton has any relevant evidence, because they did 14 not witness defendant Wan showing Plaintiff a confidential file and therefore, they do not have any 15 direct knowledge that Wan showed a confidential file to Plaintiff. Defendants also argue that 16 Plaintiff and his witnesses could not know which of Plaintiff’s complaints about the alleged assault 17 triggered Gallagher’s investigation, because Plaintiff acknowledges that he first submitted his 18 complaint to Wan before sending it to the Ombudsman. Arvizu (CDCR# J-93187) & Bell (CDCR# P-29220)8 19 (8) & (9) 20 Arvizu and Bell were Plaintiff’s co-workers on the Mens Advisory Council (MAC). They 21 can testify about the MAC and how it works. They can corroborate Plaintiff’s claim that he met with 22 defendant Wan twice on the day he was placed in Ad-Seg. They can testify that they told defendant 23 Wan that the information about Plaintiff being in danger was false, statements that should have been 24 documented during the investigation. They know about the incident on May 3, 2005 when defendant 25 26 6 Id. at p. 7 of 18, ¶(v). 27 7 Id. at p. 8 of 18, ¶(vi). 28 8 Id. at p. 9 of 18, ¶(vii). 7 1 Wan harassed Plaintiff after Plaintiff filed the complaint about Officer Torres. They can also 2 confirm information about the MAC Executive Body’s meeting with Wan, Gallagher and Sergeant 3 Padilla during which Wan verbally abused Plaintiff about his jailhouse lawyer activities and told him 4 “it will not happen anymore,” just before Plaintiff was taken to Ad-Seg. 5 Defendants argue that it is irrelevant for an inmate to testify that Plaintiff was not in danger, 6 because the question is whether or not there was a threat to Plaintiff’s safety that needed to be 7 investigated. Jesus Rodriguez (CDCR# Unknown)9 8 (10) 9 Jesus Rodriguez (“Rodriguez”) can testify about defendant Wan’s character as a corrupt 10 individual. Plaintiff claims that Wan said Rodriguez was a sexual predator and asked Plaintiff to 11 take Rodriguez as a cell mate and assault him, as a favor to Wan. 12 Defendants argue that this testimony would be inadmissible character evidence. Moreover, 13 Defendants maintain that there is a security risk in allowing Plaintiff to correspond with Rodriguez. P. Ly (CDCR# J-19345)10 14 (11) 15 Plaintiff claims that prison officials told Plaintiff that P. Ly (“Ly”) was the informant who 16 told prison officials Plaintiff was in danger. Ly can testify that he was not the informant. 17 Defendants argue that Ly’s testimony is not relevant, because Ly can only testify that he 18 never provided staff with any information. Moreover, Defendants maintain there is a security risk 19 in allowing Plaintiff to correspond with an inmate he suspects is a confidential informant. Vincent Harris (CDCR# C-32773)11 20 (12) 21 At one point, Vincent Harris (“Harris”) was Plaintiff’s neighbor in Cell #226 while Plaintiff 22 was in Cell #225. Harris, an inmate of African descent, can refute claims that Plaintiff’s life was in 23 danger due to his association with inmates of African descent. Harris can testify that Plaintiff is 24 well-known as an active inmate advocate, litigator, jailhouse lawyer, and member of the MAC. 25 26 9 27 10 Id. at p. 12 of 18, ¶(ix). 28 11 Id. at p. 13 of 18, ¶(x). Id. at p. 11 of 18, ¶(viii). 8 1 Defendants argue that it is irrelevant whether or not Plaintiff actually associated with Black 2 inmates or with inmates in his own racial group, because the question is whether there was a credible 3 threat to Plaintiff’s safety if he remained in the general population. Defendants contend that 4 evidence of Plaintiff’s actual associations is irrelevant. 5 6 (13), (14), & (15) Mao Rin (CDCR# V-05023), Tran Nguyen (CDCR# Unknown), & Chinneruth Chek (CDCR# Unknown)12 7 Mao Rin (“Rin”), Tran Nguyen (“Nguyen”), and Chinneruth Chek (“Chek”) all have first 8 hand knowledge that Plaintiff associated with members of his own Pacific Islander/Asian ethnic 9 group and not with inmates of African descent, refuting claims by Defendants that Plaintiff was in 10 danger because he associated with inmates of African descent. 11 Defendants argue that it is irrelevant whether or not Plaintiff actually associated with Black 12 inmates or with inmates in his own racial group, because the question is whether there was a credible 13 threat to Plaintiff’s safety if he remained in the general population. Defendants contend that 14 evidence of Plaintiff’s actual associations is irrelevant. 15 IV. DISCUSSION 16 As stated above, the Court has required Plaintiff to make a showing with respect to each 17 inmate witness that the witnesses possess relevant knowledge. "'Relevant evidence'" means evidence 18 having any tendency to make the existence of any fact that is of consequence to the determination 19 of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 20 401. “Personal knowledge” means knowledge of a fact perceived by the senses, by one who has had 21 an opportunity to observe, and must have actually observed the fact. Fed. R. Evid. 602. Personal 22 knowledge is not an absolute but may consist of what the witness thinks he knows from personal 23 perception. Id. 24 Plaintiff’s motion for court assistance must be denied because he has not provided evidence 25 that he completed the process to obtain written authorization from the appropriate prison officials. 26 Cal. Code Regs., tit. 15 § 3139 (2010). Because the Court does not have jurisdiction in this action 27 28 12 Id. at p. 13 of 18, ¶(xi). 9 1 over anyone other than Plaintiff and Defendants, the Court can only make a request to prison 2 officials and cannot order them to allow Plaintiff to correspond with his witnesses. E.g., City of Los 3 Angeles, 461 U.S. at 102; Valley Forge Christian Coll., 454 U.S. at 471; Jones, 444 F.3d at 1126. 4 Such a request shall not be made by the Court without assurances that Plaintiff has followed 5 procedures and used the available resources at the prison to obtain written authorization after 6 consideration by prison officials of safety, security, and procedural priorities. The Court recognizes 7 that prison administrators "should be accorded wide-ranging deference in the adoption and execution 8 of policies and practices that in their judgment are needed to preserve internal order and discipline 9 and to maintain institutional security." Whitley v. Albers, 475 U.S. 312, 321-322 (1986) (quoting 10 Bell v. Wolfish, 441 U.S. 520, 547 (1970). Plaintiff has submitted evidence of correspondence he 11 sent to his assigned counselor and the Warden in January and February 2010, and Plaintiff claims 12 he received no replies. Defendants have provided evidence that Plaintiff’s counselor received no 13 such correspondence. In any event, if Plaintiff received no responses to his requests, he had other 14 remedies available at the prison level before bringing a motion to the Court. Plaintiff has not 15 submitted any evidence that he spoke to his counselor when he had the opportunity, or that he filed 16 an administrative complaint grieving the lack of response to his correspondence. 17 Even if Plaintiff had completed the process available at the prison to request authorization, 18 Plaintiff has not made a showing that all of the prospective witnesses possess relevant knowledge. 19 Plaintiff claims that Tavanuu, Sood, Ta, Nguon, Arvizu, Bell, Rin, Nguyen, and Chek can testify that 20 Plaintiff was not in danger, because he did not have enemies and he did not associate with inmates 21 of African descent. However, it is not relevant whether Plaintiff was actually in danger, because the 22 issue is whether Defendants had reason to believe that Plaintiff was in danger. Plaintiff claims that 23 Torres has first hand knowledge that officials allowed Plaintiff to have a cell mate in Ad-Seg, which 24 Plaintiff sees as evidence that was he not in danger, but the fact that Plaintiff could be safely celled 25 with another inmate in Ad-Seg does not tend to prove that he was not in danger if placed in the 26 general population. Plaintiff also claims that Torres can testify that Plaintiff was not allowed to sign 27 a document he terms a “marriage chrono,” which would have allowed Plaintiff to return to the 28 general population, but Defendants argue that the type of document Plaintiff refers to was not an 10 1 option for Plaintiff because of the role of the confidential informant. Ly’s testimony that he never 2 provided staff members with any information about Plaintiff is irrelevant to whether Defendants had 3 any reason to believe Plaintiff was in danger, particularly since Defendants contend the informant’s 4 note was unsigned. Nor has Plaintiff shown that inmate Rodriguez has any knowledge that is 5 relevant to Plaintiff’s claims and admissible. Evidence of other crimes, wrongs, or acts is not 6 admissible to prove the character of a person in order to show action in conformity therewith. Fed. 7 R. Evid. 404(b). Moreover, Plaintiff has not provided CDC numbers to identify some of the 8 witnesses. The Court shall not make any request for Plaintiff to correspond with unidentified inmate 9 witnesses. 10 Plaintiff has demonstrated that three of the witnesses – Torres, Arvizu, and Bell – may have 11 relevant knowledge. Plaintiff claims that Torres has knowledge that inmates in Plaintiff’s 12 circumstances are ordinarily given documentation of informants’ notes about them, whereas Plaintiff 13 was not given such documentation. Defendants have not argued that this fact is not relevant. The 14 Court finds this fact may be relevant to prove that Defendants did not have any note from a 15 confidential informant and thus no valid reason to retain Plaintiff in Ad-Seg. With regard to 16 witnesses Arvizu and Bell, if they possess “personal knowledge” that defendant Wan’s harassed 17 Plaintiff for filing the complaint or for Plaintiff’s other jailhouse lawyer activities, such information 18 may be relevant to Plaintiff’s retaliation claim. 19 V. CONCLUSION AND ORDER 20 Based on the foregoing, the Court finds that Plaintiff has made the requisite showing that 21 three of his prospective inmate witnesses – Torres, Arvizu, and Bell – have knowledge of facts that 22 may be relevant to Plaintiff’s claims. However, Plaintiff has not completed the process under § 3139 23 to obtain written authorization from the appropriate prison officials. Therefore, Plaintiff’s motion 24 for a court order assisting facilitation of communication with witnesses must be denied. In light of 25 the fact that Plaintiff has had two opportunities to bring this motion, and the discovery deadline in 26 this action expired on September 17, 2010, Plaintiff’s motion shall be denied with prejudice. 27 Plaintiff is not foreclosed by the Court from pursuing his request for authorization at the prison level. 28 /// 11 1 In accordance with the foregoing, IT IS HEREBY ORDERED that: 2 1. 3 4 Plaintiff’s motion for a court order assisting facilitation of communication with inmate witnesses, filed March 1, 2010, is DENIED, with prejudice; and 2. Discovery in this action is CLOSED. 5 6 7 IT IS SO ORDERED. Dated: 6i0kij January 13, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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