Shope v. City of Lynnwood et al, No. 2:2010cv00256 - Document 47 (W.D. Wash. 2011)

Court Description: ORDER Granting Defts' 19 Motion for Summary Judgment; Denying pltf's 31 Motion to Continue Hearing by Judge Robert S. Lasnik; The Clerk of the Court is directed to enter judgment in favor of defts and against pltf. (TF)

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Shope v. City of Lynnwood et al Doc. 47 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 JEFFREY SHOPE, 10 Plaintiff, Case No. C10-0256RSL 11 12 v. ORDER GRANTING MOTION FOR SUMMARY JUDGMENT CITY OF LYNNWOOD, et al., 13 Defendants. 14 15 I. INTRODUCTION 16 17 This matter comes before the Court on a motion for summary judgment filed by 18 defendants City of Lynnwood (the “City”) and City Police Detectives Greg Jamison and Anne 19 20 Miles. Plaintiff contends, among other things, that Detective Miles unlawfully arrested him at his home without probable cause.1 21 For the reasons set forth below, the Court grants defendants’ motion. 22 II. DISCUSSION 23 24 A. Plaintiff’s Request for a Continuance. 25 26 27 28 1 Because this matter can be decided based on the parties’ memoranda, attachments, and the balance of the record, defendants’ request for oral argument is denied. ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 3 As an initial matter, plaintiff has filed a motion “continuing the hearing in order to allow Plaintiff his full opportunity to review the deposition transcript and make any changes.” Motion at p. 1. Federal Rule of Civil Procedure 30(e) permits a deponent thirty days to review the 4 5 deposition transcript and make any changes after being notified that the transcript is completed. 6 In this case, the court reporter notified plaintiff via e-mail on February 1, 2011 that the transcript 7 was completed. Declaration of Gary Preble, (Dkt. #31). Although plaintiff’s counsel states that 8 he did not actually review the e-mail on that day, counsel’s inattention does not justify a 9 10 continuance. Id. (“I receive many emails per day and the email that gave notice of the transcript to my office was overlooked.”). Furthermore, because plaintiff has already had his full thirty 11 12 days to review the transcript, no extension is necessary. To the extent that plaintiff contends he 13 needs additional time to submit changes to the Court, he has already done so: as set forth below, 14 he now seeks to alter his deposition testimony. For all of those reasons, plaintiff’s motion for an 15 extension of time is denied. 16 B. Background Facts. 17 During an interview with Child Protective Services social worker Carol Shaw, plaintiff’s 18 19 step-son, fourteen year-old C.D.,2 reported that plaintiff recently became angry with him and 20 punched him in the eye. Declaration of Greg Jamison, (Dkt. #20) (“Jamison Decl.”), Exs. B, C. 21 Shaw observed and photographed a bruise on C.D.’s eyelid. C.D. also reported that plaintiff 22 yells, screams, and hits him. Id. Shaw faxed a copy of her report to the Lynnwood Police 23 Department. Id. at ¶ 3. Detective Jamison was assigned to investigate, and he had been trained 24 25 26 27 28 2 During his interviews with Ms. Shaw and Detective Jamison, C.D. was at the Denny Youth Center in Everett, Washington based on events unrelated to this lawsuit. ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 2 1 in interviewing victims, witnesses, and suspects, and in conducting domestic violence 2 investigations. Id. at ¶ 4. As part of his investigation, Detective Jamison interviewed C.D., who 3 told him the same version of events as he had related to Ms. Shaw. Based on the information he 4 5 had learned, Detective Jamison concluded that there was probable cause to arrest plaintiff for 6 Assault IV under RCW 9A.36.041. Id. at ¶ 5 (“Ms. Shaw witnessed the bruising over C.D.’s 7 eye. Her independent recollection of events, combined with the statements in her CPS referral 8 and C.D.’s verbal and written statements led me to conclude that I had reasonably trustworthy 9 10 information that, at a minimum, plaintiff had intentionally struck C.D. in the face.”). On December 14, 2007, Detective Jamison called plaintiff and left a message requesting a 11 12 return call. When plaintiff called back, Detective Jamison asked him to come to the Lynnwood 13 Police Department to speak with him. Plaintiff agreed to come in after speaking with his 14 attorney. Declaration of Jeffrey Shope, (Dkt. #29) (“Shope Decl.”) at p. 1. “Based on the tone 15 of his voice and the tenor of [the] conversation,” Detective Jamison concluded that plaintiff 16 would not come voluntarily to the police station. Jamison Decl. at ¶ 6. He therefore asked 17 Detective Miles to take plaintiff into custody and bring him to the police station. Declaration of 18 19 Anne Miles, (Dkt. #21) (“Miles Decl.”) at ¶ 4. Detective Miles drove her marked patrol car, 20 which was equipped with lights and sirens, to plaintiff’s residence and parked in front of the 21 house. Id. After plaintiff answered the door and verified his identity, Detective Miles informed 22 him that he was under arrest and that he needed to accompany her to the police station. 23 According to plaintiff’s version of events, at the time Detective Miles arrested him, he was 24 25 26 “standing in the door,” approximately one foot from the threshold. Plaintiff’s Dep. at pp. 87, 93. Detective Miles was standing outside the door and did not enter the residence. Plaintiff testified 27 28 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 3 1 during his deposition that Detective Miles “grabbed [his] left hand” and pulled him out of the 2 door. Id. at p. 91. After Detective Miles transported plaintiff to the Lynnwood police station, 3 Detective Jamison interviewed him. Plaintiff denied striking his step-son. Detective Jamison 4 5 cited plaintiff for Assault IV, Domestic Violence, and released him on his own recognizance. On December 17, 2007, plaintiff appeared before Judge Stephen Moore in Lynnwood 6 7 Municipal Court. The court found probable cause to charge plaintiff with assault in the fourth 8 degree. Declaration of Thomas Miller, (Dkt. #23) (“Miller Decl.”), Ex. C. The court also 9 10 appointed a public defender to represent plaintiff. The prosecutor subsequently voluntarily dismissed the case. 11 Plaintiff filed his complaint in this Court on February 11, 2010. Plaintiff asserts claims 12 13 for false arrest/false imprisonment, assault, violations of 42 U.S.C. § 1983 and § 1985, negligent 14 hiring, retention, training, and supervision, and outrage. Plaintiff also intends to seek punitive 15 damages at trial. In response to defendants’ motion, plaintiff stated that he does not oppose the 16 dismissal of his Section 1985 claim. Response at p. 15. 17 C. Summary Judgment Standard. 18 19 Summary judgment is appropriate when, viewing the facts in the light most favorable to 20 the nonmoving party, the records show that “there is no genuine issue as to any material fact and 21 that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Once the 22 moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party 23 fails to designate, by affidavits, depositions, answers to interrogatories, or admissions on file, 24 25 26 “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 27 28 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 4 1 All reasonable inferences supported by the evidence are to be drawn in favor of the 2 nonmoving party. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). 3 “[I]f a rational trier of fact might resolve the issues in favor of the nonmoving party, summary 4 5 judgment must be denied.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 6 626, 631 (9th Cir. 1987). “The mere existence of a scintilla of evidence in support of the 7 non-moving party’s position is not sufficient.” Triton Energy Corp. v. Square D Co., 68 F.3d 8 1216, 1221 (9th Cir. 1995). “[S]ummary judgment should be granted where the nonmoving 9 10 party fails to offer evidence from which a reasonable jury could return a verdict in its favor.” Id. at 1221. 11 12 D. Analysis. 13 Defendants argue that plaintiff’s claims for false arrest and false imprisonment are barred 14 by the doctrine of collateral estoppel because the state court found probable cause for the arrest. 15 Federal courts apply state law to determine the preclusive effect of state court litigation. See, 16 e.g., Noel v. Hall, 341 F.3d 1148, 1166 (9th Cir. 2003). In Washington, the requirements of 17 applying collateral estoppel include: (1) the issue decided in the prior adjudication must be 18 19 identical to the one presented in the second, (2) the prior adjudication must have ended in a final 20 judgment on the merits, (3) the party against whom the doctrine is asserted was a party or in 21 privity with a party to the prior adjudication, and (4) application of the doctrine must not work 22 an injustice. Hanson v. City of Snohomish, 121 Wn.2d 552, 562 (1993). In this case, the state 23 court matter did not end in a final adjudication on the merits. Defendants have not cited any 24 25 26 Washington authority establishing that a judge’s determination of probable cause, in the absence of a conviction, is a final adjudication on the merits. Cf. id. at 563-64 (explaining that probable 27 28 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 5 1 cause was a complete defense to an action for false arrest and imprisonment; applying collateral 2 estoppel in later civil proceeding after a criminal conviction). Accordingly, the Court will not 3 apply collateral estoppel. 4 5 1. Federal Claims. 6 Having determined that collateral estoppel is inapplicable, the Court analyzes the merits 7 of the false arrest and false imprisonment claim under both federal and state law. Plaintiff does 8 not dispute the existence of probable cause, which is established by the facts known to the 9 10 officers at the time. Detective Jamison investigated and obtained reasonably trustworthy information from interviewing C.D. and Ms. Shaw and reviewing the relevant documents; that 11 12 information was sufficient to warrant a prudent person in believing that plaintiff assaulted C.D. 13 See. e.g., United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005). Instead, plaintiff contends 14 that Officer Miles violated plaintiff’s Fourth Amendment rights by arresting him in his home 15 without a warrant. The Fourth Amendment ensures that “the right of the people to be secure in 16 their . . . houses . . . shall not be violated.” Silverman v. United States, 365 U.S. 505, 511 17 (1961). Based on that right, the Supreme Court has held that the police must obtain a warrant to 18 19 arrest people within their homes. Payton v. New York, 445 U.S. 573, 576 (1980). In United 20 States v. Santana, the Supreme Court established that the open doorway of a private residence is 21 not a private place but a public one, so a person standing in the doorway has no expectation of 22 privacy. 427 U.S. 38, 42 (1976) (noting prior precedent that police may effect a warrantless 23 search in a public place). In United States v. Vaneaton, 49 F.3d 1423, 1424 (9th Cir. 1995), the 24 25 26 court, relying on Supreme Court precedent, upheld a warrantless arrest of an individual standing “just inside the open door of his hotel room.” In this case, according to a diagram plaintiff drew 27 28 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 6 1 during his deposition, he was within the swing of the open door, approximately one foot from 2 the threshold of the doorway. Plaintiff’s Dep. at pp. 87, 93; Miller Decl., Ex. F. The facts are 3 materially indistinguishable from those in Vaneaton, and the Court upholds the warrantless 4 5 6 arrest for the same reasons.3 In order to distinguish his situation from the one in Vaneaton, plaintiff argues that he did 7 not know that he was opening his door to a police officer. During plaintiff’s deposition, counsel 8 questioned him about a letter he wrote in which he stated, “But while I’m on the phone with him, 9 10 a cop car pulls up and they proceed to handcuff me and take me to the station.” Plaintiff’s Dep. at p. 82. Regarding that sentence, counsel states, “[T]o me, it sounds like you saw the cop car 11 12 pull up?” Plaintiff responded, “Okay. Then I did.” Id.; see also id. at p. 83 (“Must have, yes.”) 13 When asked if he had any reason to dispute that characterization, plaintiff did not identify any 14 such reason or deny seeing the police car arrive. In fact, plaintiff’s deposition answers re- 15 affirmed his prior statement (stating, “That’s a synopsis of what happened, yes.”) and confirmed 16 that he saw the police car arrive. Id. at p. 82 (when asked, “So what did you do after you saw the 17 police car pull up?” plaintiff responded, “Opened the door.”); id. at pp. 83-84; id. at p. 83 (when 18 19 asked, “So you don’t have a clear recollection of which window you looked out of when you 20 saw the cop car pull up?” plaintiff responded, “No. . . . It wasn’t important.”). The following 21 exchange occurred: 22 Q: But you knew it was a police officer knocking at your door because you had seen the 23 24 25 26 27 28 3 Plaintiff relies on readily distinguishable cases in which the plaintiff was not in the doorway on the home. United States v. Quaempts, 411 F.3d 1046, 1048 (9th Cir. 2005) (plaintiff opened the door of his trailer while lying on his bed; he was not in the threshold); LaLonde v. County of Riverside, 204 F.3d 947, 951 (9th Cir. 2000) (plaintiff was inside his apartment “and did not at any time reach the doorway”). ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 7 1 patrol car pull up to your residence, right? 2 A: Apparently. 3 Q: Okay. That’s a yes? 4 5 A: Yes, apparently. 6 Id. at pp. 84-85. Plaintiff has submitted a declaration with his response to this motion in which 7 he states that he was “surprised” to find a police officer standing at his door when he opened it. 8 Shope Decl. at p. 2. In an attempt to explain the inconsistency of that professed surprise with his 9 10 deposition testimony and previously written letter, plaintiff states that he was “confused” during his deposition.4 Id. at p. 4. Defense counsel, however, instructed plaintiff as follows at the 11 12 beginning of the deposition: “If you answer my question, the presumption is that you understood 13 it, so it’s important that you just alert me to the fact that you’re confused or that you don’t 14 understand the question, if that’s the case.” Plaintiff’s Dep. at p. 5. Plaintiff did not express any 15 confusion during the deposition. 16 In their reply memorandum, defendants seek to strike the portion of plaintiff’s declaration 17 that contradicts his sworn deposition testimony. A party may not avoid summary judgment by 18 19 contradicting prior deposition testimony with a declaration. See, e.g., Radobenko v. Automated 20 Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975); Hambleton Bros. Lumber Co. v. Balkin Enters., 21 397 F.3d 1217 (9th Cir. 2005). Although a deponent may later clarify his or her answers or 22 23 24 25 26 27 28 4 Plaintiff also cites to his use of the word “apparently” and, at one point, his preface of “if that’s what happened” to support his claim that he did not positively affirm seeing the police car arrive. A review of the entirety of the relevant portion of his deposition undermines his assertion. At most, the words plaintiff cites shows his attempt at evasiveness during his deposition, although, when specifically asked, he repeatedly confirmed seeing the police car arrive as set forth above. ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 8 1 resolve confusion, plaintiff’s “corrections” serve neither purpose in this case. Rather, he is 2 attempting to alter the substance of his deposition testimony to avoid coming within the ambit of 3 Vaneaton. Therefore, defendants’ request to strike is granted. The Court also did not consider 4 5 6 7 8 9 10 plaintiff’s sur-reply, which was not a request to strike but rather further argument in violation of Local Rule 7.5 Plaintiff also contends that Detective Jamison violated his civil rights by directing Detective Miles to arrest him and by continuing the violation by interrogating him. Plaintiff notes that a supervisor can be liable for condoning, ratifying, and encouraging the violation of civil rights. Because the arrest was lawful, however, Detective Jamison did not violate 11 12 13 plaintiff’s civil rights.6 Finally, in addition to the fact that the claims fail substantively, plaintiff has also failed to 14 establish that the City can be liable under the respondeat superior theory alleged. Pursuant to 15 Section 1983, a local government entity may not be sued based on a theory of respondeat 16 superior absent some policy or custom, which plaintiff has neither alleged nor established. 17 Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978). Therefore, the defendants are 18 19 entitled to summary judgment on plaintiff’s federal law claims. 20 2. State Law Claims for False Arrest, False Imprisonment, and Assault. 21 Plaintiff asserts state law claims against all three defendants for false arrest, false 22 23 24 25 26 27 28 5 Oddly, with his sur-reply, plaintiff submitted a proposed order on a “Motion of the Plaintiff for an Order Striking language [sic] from the Defendant’s Reply in Support of Motion for Summary Judgment” (Dkt. #43) but there is no such motion in the docket. Nor does plaintiff request to strike language from defendant’s reply in any memoranda filed with the Court. 6 In his response to the motion, plaintiff confirmed that he is not alleging that his Fifth Amendment rights were violated. ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 9 1 imprisonment, and assault. In his memorandum, plaintiff does not address the false 2 imprisonment claim under state law. Nor does he cite any authority in support of such a claim or 3 dispute defendants’ assertion that it is unavailable under state law. In addition, probable cause, 4 5 which defendants have established, is a “complete defense” to plaintiff’s claims for false arrest 6 and imprisonment. Hanson v. City of Snohomish, 121 Wn.2d 552, 563 (1983). Accordingly, 7 plaintiff’s state law claims for false arrest and false imprisonment are untenable. 8 9 10 Plaintiff also asserts a state law claim for assault against Detective Miles; his argument in support of the claim is scant. Although he cites a case for the proposition that an assault occurs “if unnecessary violence or excessive force is used in accomplishing the arrest,” he does not 11 12 argue or cite any facts to show that Detective Miles used excessive force. Response at p. 15. 13 Nor would such a claim be supported by the record. Even according to plaintiff’s version of 14 events, Detective Miles grabbed plaintiff by the wrist, spun him around, pushed him against the 15 wall and handcuffed him without inflicting any pain or injury. Miller Decl., Ex. A at p. 3; 16 Plaintiff’s Dep. at pp. 91-94. Instead, it appears that plaintiff’s assault claim is based on his 17 allegedly illegal arrest. “An assault also occurs when there is an illegal arrest.” Guffey v. 18 19 Washington, 103 Wn.2d 144 (1984) (citing State v. Rousseau, 40 Wn.2d 92, 95 (1952) (both 20 cases partially overruled on other grounds)). Notwithstanding the fact that the arrest was legal 21 under federal law, plaintiff notes that the Washington Supreme Court has held that, absent a 22 warrant or exigent circumstances, “the police are prohibited from arresting a suspect while the 23 suspect is standing in the doorway of his house.” State v. Holeman, 103 Wn.2d 426, 429 (1985). 24 25 26 However, a specific Washington statute, RCW 10.31.100(1), establishes that “[a]ny police officer having probable cause to believe that a person has committed or is committing a 27 28 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 10 1 misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or 2 property . . . shall have the authority to arrest the person.” Therefore, the statute explicitly 3 permits the warrantless arrest of a domestic violence suspect upon probable cause. Plaintiff 4 5 counters that the statute is inapplicable because his arrest occurred more than four hours after the 6 alleged domestic violence incident occurred. The provision on which plaintiff relies, however, 7 merely provides that officers have a duty to arrest within four hours of the incident; it does not 8 undermine officers’ right to arrest on probable cause. See, e.g., Torres v. City of Anacortes, 97 9 10 Wn. App. 64, 80 (1999) (citing RCW 10.99 et seq.); RCW 10.31.100(2)(c). Pursuant to the statute, Detective Miles was authorized to effect a warrantless arrest of plaintiff, which defeats 11 12 13 his state law claims of false arrest, false imprisonment, and assault. Even if the arrest was unlawful despite the statute, the detectives in this case cannot be 14 held liable if they are entitled to qualified immunity. A Washington statute provides, “A peace 15 officer shall not be held liable in any civil action for an arrest based on probable cause, 16 enforcement in good faith of a court order, or any other action or omission in good faith under 17 this chapter arising from an alleged incident of domestic violence brought by any party to the 18 19 incident.” RCW 10.99.070. The statute, rather than the common law doctrine, governs in this 20 situation that arose out of alleged domestic violence. See, e.g., Gurno v. Town of LaConner, 65 21 Wn. App. 218 (1992). In this case, plaintiff does not dispute the existence of probable cause, 22 and the arrest was the result of an allegation of domestic violence. Because the statute provides 23 the detectives with qualified immunity, plaintiff’s state law claims of false imprisonment, false 24 25 26 arrest, and assault fail. Similarly, the detectives are entitled to qualified immunity under federal law because no constitutional violation occurred. Pearson v. Callahan, 555 U.S. 223 (2009). 27 28 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 11 1 Even if it did, the qualified immunity standard “gives ample room for mistaken judgments” by 2 protecting “all but the plainly incompetent or those who knowingly violate the law.” Hunter v. 3 Bryant, 502 U.S. 224, 229 (1991) (internal citation and quotation omitted). In this case, 4 5 Detective Jamison had probable cause to believe that plaintiff had committed domestic violence, 6 and his decision to direct plaintiff’s arrest was reasonable in light of the state domestic violence 7 statute and relevant case law from the Ninth Circuit and United States Supreme Court. 8 Therefore, even if there was a violation of plaintiff’s civil rights, the detectives are entitled to 9 10 qualified immunity under both state and federal law. 3. Plaintiff’s State Law Outrage and Negligence Claims. 11 12 As for plaintiff’s claim of outrage, plaintiff has not shown that the detectives’ conduct 13 was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds 14 of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” 15 Grimsby v. Samson, 85 Wn.2d 52, 59 (1975). The facts in this case do not come close to 16 meeting that standard. Rather, the detectives were merely performing their job duties and did so 17 in a reasonable manner under the circumstances. 18 19 Plaintiff also asserts claims against the City for negligent training, supervision, hiring, 20 and retention. Plaintiff relies heavily on a suit against a private employer to establish the 21 existence of a duty, but the public duty doctrine undermines his claim. Response at p. 16 (citing 22 Betty Y. v. Al-Hellou, 98 Wn. App. 146 (1999)); Osborn v. Mason County, 157 Wn.2d 18, 27- 23 28 (2006) (explaining that the public duty doctrine “reminds us that a public entity – like any 24 25 26 other defendant – is liable for negligence only if it has a statutory or common law duty of care.”). Under the public duty doctrine, a plaintiff must show that the duty was owed to him 27 28 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 12 1 individually rather than “to the public in general.” See, e.g., Vergeson v. Kitsap County, 145 2 Wn. App. 526, 535 (2008) (quoting Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774, 3 785 (2001). The duty of the City to hire, train, retain, and supervise its officers is owed to the 4 5 6 7 8 9 10 public at large, not to plaintiff individually. Plaintiff has not identified any duty that the City owed to him and breached, so his negligence claims fail as a matter of law. Defendants have also moved to dismiss plaintiff’s request for punitive damages, which is moot now that all claims have been dismissed. Even if some of the claims survived, punitive damages are unavailable against municipalities such as the City. See, e.g., Newport v. Facts Concerts, 453 U.S. 257 (1981). Although a jury may award punitive damages under Section 11 12 1983 against individual defendants if their “conduct was driven by evil motive or intent, or when 13 it involved a reckless or callous indifference to the constitutional rights of others,” plaintiff has 14 not provided any evidence to support an award of punitive damages. See, e.g., Dang v. Cross, 15 422 F.2d 800, 807 (9th Cir. 2005). 16 17 III. CONCLUSION For all of the foregoing reasons, the Court GRANTS defendants’ motion for summary 18 judgment (Dkt. #19) and DENIES plaintiff’s request for a continuance (Dkt. #31). The Clerk of 19 20 the Court is directed to enter judgment in favor of defendants and against plaintiff. 21 22 DATED this 28th day of March, 2011. 23 24 A Robert S. Lasnik 25 United States District Judge 26 27 28 ORDER GRANTING MOTION FOR SUMMARY JUDGMENT - 13

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