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Burke v. North Dakota Dep't of Correction and Rehabilitation

June 5, 2009

DALE JOSEPH BURKE, PLAINTIFF,
v.
NORTH DAKOTA DEPARTMENT OF CORRECTION AND REHABILITATION, WARDEN TIM SCHUETZLE, DEPUTY WARDEN PAT BRANSON, MEDICAL DIRECTOR KATHY BACHMEIER, CORRECTIONAL OFFICER J. PETERSON, AND LIEUTENANT RON BJELLAND, IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Before the Court is the Defendants' Motion for Summary Judgment filed on May 1, 2008. See Docket No. 40. The Plaintiff filed three motions for an extension of time to file a response. See Docket Nos. 49, 62, 64. The Court granted each of the Plaintiff's motions, and ultimately gave the Plaintiff until November 7, 2008, to file a response. See Docket Nos. 51, 63, 65. On November 5, 2008, the Plaintiff filed a response in opposition to the Defendants' motion. See Docket No. 70. On November 13, 2008, the Defendants filed a motion for an extension of time to file a reply brief. See Docket No. 75. The Court granted the Defendants' motion, and gave the Defendants until December 12, 2008, to file a reply brief. See Docket No. 76. The Defendants filed a reply on December 12, 2008. See Docket No. 77. The Plaintiff filed a surreply on December 17, 2008. See Docket No. 78. The Court gave the Defendants until February 5, 2009, to file a response to the Plaintiff's surreply. See Docket No. 84. On February 5, 2009, the Defendants filed a response to the Plaintiff's surreply. See Docket No. 85. For the reasons set forth below, the Court grants the Defendants' motion for summary judgment.

I. BACKGROUND

The plaintiff, Dale Joseph Burke, was convicted of two counts of murder and one count of arson in North Dakota state court. On September 17, 1998, he was sentenced to two life sentences without the possibility of parole on the murder convictions, and to ten years on the arson conviction. Burke was remanded to the custody of the North Dakota Department of Corrections and Rehabilitation (DOCR) for incarceration and hard labor pursuant to N.D.C.C. § 12-47-04.

Burke is an inmate at the North Dakota State Penitentiary (NDSP). He initiated a civil rights action under 42 U.S.C. § 1983 on January 23, 2007, in which he raised a myriad of claims. See Docket No. 2. On May 16, 2007, the Court conducted a preliminary screening of Burke's complaint under 28 U.S.C. § 1915A to identify any cognizable claims and to dismiss any part of the complaint that is frivolous, malicious, fails to state a claim, or seeks monetary relief from an immune defendant. See Docket No. 4. The Court dismissed four of the claims (claims 1, 5, 8, and 9) without prejudice, dismissed one of the claims (claim 15) with prejudice, and found the remaining claims (claims 2, 3, 4, 6, 7, 10, 11, 12, 13, 14, 16, and 17) cognizable. In the twelve surviving claims, Burke alleges statutory and constitutional violations, including interference with the free exercise of religion, lack of adequate medical care, retaliation for exercising his constitutional rights, failure to protect, refusal to accommodate his disability, and cruel and unusual punishment.

On May 29, 2007, Burke filed a motion for leave to file an amended complaint to include the following defendants to be sued in their official capacities: Warden Tim Schuetzle, Deputy Warden Pat Branson, Medical Director Kathy Bachmeier, Correctional Officer J. Peterson, and Lieutenant Ron Bjelland. See Docket No. 6. The individual defendants are employees of the NDSP. On October 10, 2007, the Court granted Burke's motion for leave to file an amended complaint. See Docket No. 16. On October 10, 2007, Burke filed an amended complaint setting forth the same seventeen claims as in the original complaint, but adding the individual defendants to be sued in their official capacities. See Docket No. 17.

On April 28, 2008, Burke filed a motion for a temporary restraining order against NDSP Correctional Officer Barb Bailey "to stop harassing and interfering with plaintiffs legal work and law library rights and his access to the courts." See Docket No. 38 (error in original). The Court denied the motion on April 29, 2008. See Docket No. 39. On October 24, 2008, Burke filed a motion for a temporary restraining order against Medical Director Kathy Bachmeier "to treat plaintiffs testicle pain and allow plaintiff to purchase a new jock strap." See Docket No. 67 (error in original). On November 3, 2008, the Court denied Burke's motion for a temporary restraining order against Kathy Bachmeier. See Docket No. 69.

In his 42 U.S.C. § 1983 action, Burke seeks monetary damages and injunctive relief from the Defendants. The Defendants move for summary judgment on all twelve surviving claims. The Defendants contend that there are no material facts in dispute and that they are entitled to judgment as a matter of law.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir. 2007); see Fed. R. Civ. P. 56(c). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the non-moving party.

The Court must inquire whether the evidence presents a sufficient disagreement to require the submission of the case to a jury or whether the evidence is so one-sided that one party must prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party bears the ultimate burden of proof to establish that there are no genuine issues of material fact, and that the movant is entitled to judgment as a matter of law. Carrington v. City of Des Moines, Iowa, 481 F.3d 1046, 1050-51 (8th Cir. 2007). The non-moving party "may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).

III. LEGAL DISCUSSION

Of Burke's twelve claims, he has alleged one claim pursuant to Title II of the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12131 et seq., and the remaining eleven claims are brought pursuant to 42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).

A bulwark for individual liberties, 42 U.S.C. § 1983 provides legal redress to individuals who suffer violations of their federal rights at the hands of any "person" who acts "under color" of state law. That being so, a § 1983 plaintiff can prevail only if he proves he has been subjected to a deprivation of "rights, privileges, or immunities secured by the Constitution or laws of the United States." And naturally, the challenged conduct must have been committed by one who acts "under color of state law."

Montano v. Hedgepeth, 120 F.3d 844, 848 (8th Cir. 1997) (citations omitted).

A. CLAIMS 2, 12, 13, AND 16 -- RELIGIOUS DISCRIMINATION OR RETALIATION AND INTERFERENCE WITH RELIGIOUS PRACTICES

Burke is a self-proclaimed practicing shaivite Hindu. In claims 2, 12, 13, and 16, Burke raises violations of the First and Fourteenth Amendments to the United States Constitution and the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1, in his practice of the Hindu faith. Burke contends that the Defendants have violated the First and Fourteenth Amendments by denying him an hour of worship akin to a Sunday worship service afforded to Christian inmates, and by refusing to seek Hindu volunteers from the Bismarck, North Dakota community to assist him in his Hindu worship. Burke alleges that the Defendants violated the First Amendment and the Religious Land Use and Institutionalized Persons Act by denying him the use of items important to his religious faith: camphor, kumkum, incense, and a butter lamp.

1) CLAIMS 2 AND 12

In claim 12, Burke argues Thursdays are holy days in the Hindu religion, and the Defendants denied him a Hindu worship service on Thursdays even though the Defendants provide over twenty religious services and study hours for Christian inmates during the week. Essentially, Burke is alleging that the prison regulations denied him the equal protection of laws in violation of the Fourteenth Amendment by not affording Hindus the same opportunity for religious services as is given to members of other religions. Burke also alleges that the denial of a Hindu worship service on Thursdays violated his First Amendment right to the free exercise of religion.

In claim 2, Burke alleges that the Defendants denied his First Amendment right to the free exercise of religion in retaliation for filing a civil action, Burke v. North Dakota Dep't of Corr. and Rehab., 294 F.3d 1043 (8th Cir. 2002), against the Defendants. Burke states,

On 12-21-06 at the North Dakota State Penitentiary, hereafter known as NDSP, inmate Christmas party Plaintiff and a witness approached Deputy Warden of Operations, Patrick Branson. Plaintiff ask Branson, "Why did you take away my religious study day, the Christian inmates get a bible study" Branson then said, "Don't come to me whining about your religion or being disabled, you should have thought about that before you sued us, you don't have anything coming, so go bother someone else".

See Docket No. 17 (errors in original).

a) FOURTEENTH AMENDMENT

On November 14, 2006, Burke filed a grievance against Chaplain Dave Vaughn, the prison chaplain at the NDSP, in which he complained that he was denied a Hindu worship service on Thursdays. Burke states as follows:

My Thursday Hindu sat sang meeting was taken from me.

It was established with Chaplain Dave Vaughn over three years ago that Thursday is a holy day of prayer for worshipers of the Hindu God Shiva. That is the reason that my Hindu sat sag has been held on Thursdays for the last three or four years. The Chaplain knows this I proved it to him, in fact I proved to the Chaplain that I should have daily access to my Shiva Lingham and my statues of my deities, to anoint them with water, ghee, and holy oil. For awhile I did have daily access, but I was having trouble with my mental illness and the medicine I am on. I cut it back to the essential day of Thursdays for worship and prayer, and Tuesdays were for study and reflection . . . .

See Docket No. 46-5 (errors in original).

Prior to November 2006, Hindu services were offered to the inmates two hours per week, Tuesdays from 12:30 p.m. to 1:30 p.m. and Thursdays from 12:30 p.m. to 1:30 p.m. Burke, who is the only practicing Hindu at the NDSP, failed to take advantage of the weekly service hours offered for Hindu worship. Subsequently, the Defendants reduced Hindu services from two hours to one hour per week, with the weekly services held on Tuesdays from 5:45 p.m. to 6:45 p.m.

Burke argues the denial of a Hindu worship service on Thursdays violates the Fourteenth Amendment. Burke states, Christian inmates have over twenty religious services and bible studies they can attend everyone of them if they wish. The Buddhist inmates, Asatru inmates, also have a religious study day and a education day. The room that Burke uses for his religious service and study remains empty all the time, there is no reason Burke can not use it, and it is next door to the Chaplains office.

See Docket No. 70 (errors in original).

The equal protection clause of the Fourteenth Amendment prohibits religious discrimination by the state. The Fourteenth Amendment provides, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. "This mandate has been interpreted to require the government 'to treat similarly situated people alike,' and it extends to prison inmates." Rouse v. Benson, 193 F.3d 936, 942 (8th Cir. 1999) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)). To succeed on an equal protection claim, Burke "must show that he is treated differently than a similarly situated class of inmates, that the different treatment burdens one of his fundamental rights, and that the different treatment bears no rational relation to any legitimate penal interest." Murphy v. Missouri Dep't of Corr., 372 F.3d 979, 984 (8th Cir. 2004).

The Court must first determine whether Burke is, in fact, similarly situated to members of other religious groups that he claims were accommodated. To survive summary judgment, Burke "must identify the characteristics of the class he claims to be similarly situated to and present some evidence that other groups within the class were not also restricted in similar ways." Id. Burke has provided the "Religious Activity Schedule" for the NDSP from November 19, 2006, through November 25, 2006, which identifies the daily schedule of religious services for that week. According to the "Religious Activity Schedule," it is clear that inner-faith and Catholic worship services were provided on Sunday, November 19, 2006, and that Bible study hours were provided later in the week for various religions.

Chaplain Dave Vaughn is responsible for evaluating the "legitimacy of a religious activity or materials and the inmate's participation in such activity." See Docket No. 86. The Defendants permit religious meetings in accordance with faith obligations, such as holy days and weekly worship. See Docket No. 46-4. Chaplain Vaughn "designates the area for meeting location, staff supervision, volunteer worker or spiritual advisor participation and program monitoring." See Docket No. 46-4.

Chaplain Vaughn has independently researched the tenets of Hinduism to accommodate Burke's religious needs:

I have learned that most observant Hindus engage in some type of formal worship (puja). They usually have a special place that is used as a shrine, and contains a picture or statue symbolizing the individual's chosen form(s) of God (ishta). Typically a devotee enters a shrine at dawn and/or dusk to make an offering to God, symbolized by placing items such as food, water and flowers before the image, with incense, oil lamp (diya) and bell to ring. The devotee thus symbolically offers to God items that can be enjoyed by each of the five senses. A time of meditation (dyana) can then be offered. . . .

Furthermore, in my research I have not found any weekday specified as a worship day for Shiva, Hindus. Also, the new Tuesday evening worship schedule is actually more conducive to the worship at dusk as mentioned above. See Docket No. 46-5.

Burke has not provided any evidence to refute Chaplain Vaughn's research of Hinduism. Nor has Burke provided evidence to establish that the tenets of Hinduism are similarly situated to other religious groups found at the NDSP. As a result, Burke has not established that other religions recognized at the NDSP which receive both a worship service in accordance with a holy day and a bible study hour are similarly situated to Hinduism. Accordingly, Burke has failed to raise a genuine issue of material fact as to whether the denial of a Hindu worship service on Thursdays violates the Fourteenth Amendment.

b) FIRST AMENDMENT

Prior to November 2006, inmates at the NDSP were permitted to attend Hindu services two hours per week, on Tuesdays and Thursdays from 12:30 p.m. to 1:30 p.m. Subsequent to November 2006, Hindu services were provided at the NDSP on Tuesdays from 5:45 p.m. to 6:45 p.m. Patrick Branson, the Deputy Warden for Operations at the NDSP, stated the reasons for the schedule change:

The schedule change was made to accommodate Burke because, at the time, he had lost his privileges for afternoon recreation due to his noncompliance with job requirements. Additionally, the Chaplain's independent research of the Hindu religion revealed that most observant Hindus typically enter a shrine at dawn and/or dusk to make an offering to God. Changing the schedule to begin at 5:45 p.m. was more conducive to this Hindu doctrine than the original 12:30 time slot. At the time of the schedule change, Burke was the only inmate attending Hindu services and he was not taking advantage of the two hours scheduled.

See Docket No. 46-4.

Burke contends that the Defendants reduced Hindu services from two hours to one hour per week in retaliation for Burke filing a civil lawsuit against the Defendants, and that the denial of a Hindu worship service on Thursdays violates his First Amendment right to the free exercise of religion. In other words, Burke charges the Defendants with unconstitutional retaliation against the exercise of his First Amendment right to the free exercise of religion.

Religious freedom is guaranteed by the free exercise clause of the First Amendment, which provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. Const. amend. I. "First Amendment protection only attaches to beliefs rooted in religion, as opposed to purely secular beliefs or personal preferences." Love v. Reed, 216 F.3d 682, 687 (8th Cir. 2000). "In analyzing a Free Exercise claim, 'we consider first the threshold issue of whether the challenged governmental action infringes upon a sincerely held religious belief and then apply the [Turner v. Safley, 482 U.S. 78 (1987)] factors to determine if the regulation restricting the religious practice is reasonably related to legitimate penological objectives.'" Gladson v. Iowa Dep't of Corr., 551 F.3d 825, 831 (8th Cir. 2009) (citing Murphy, 372 F.3d at 983).

In Turner, the United States Supreme Court held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S. at 89. To determine the reasonableness of the regulation, a court should consider four factors: (1) "there must be a 'valid, rational connection' between the prison regulation and the legitimate government interest"; (2) "whether there are alternative means of exercising the right that remain open to prison inmates"; (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally"; and (4) whether there is an "alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological objectives." Id. at 89-91 (emphasis in original).

As a preliminary matter, the Court must determine that Burke's belief in shaivite Hinduism is sincere. Burke has admitted that his belief in shaivite Hinduism "is sincere." Burke has provided a certificate which indicates that in August 2003 he was granted the honorary Hindu title of "Swami" from the Universal Life Church in Modesto, California. See Docket No. 71-2. The Defendants have not offered any evidence to refute Burke's sincerity. Accordingly, Burke satisfies the threshold sincerity requirement. At issue is whether the prison regulation restricting an additional hour of Hindu services per week is reasonably related to legitimate penological objectives.

Applying the first factor under Turner, the Court must find that there is a valid, rational connection between the prison regulation and a legitimate government interest. Deference should be accorded to the judgment and expertise of prison officials, "particularly with respect to decisions that implicate institutional security." Murphy, 372 F.3d at 983. As the chaplain at the NDSP, Chaplain Vaughn has been designated to "evaluate matters of a religious nature relating to the legitimacy of a religious activity or materials and the inmate's participation in such activity." See Docket No. 86. The NDSP provides religious services to a large number of inmates with a wide variety of religious needs. "The Religious Advisory Committee considers the number of inmates wishing to participate in a religious group activity and plans accordingly. The NDSP is accountable for all the religious groups in the penitentiary." See Docket No. 86. Inmates at the NDSP are allowed to attend one hour of religious service per week. See Docket No. 46-4. The services are held during recreational hours, which grants inmates the discretion to attend the services. See Docket No. 46-4.

The evidence establishes that prior to November 2006, Burke failed to utilize the two hours scheduled for Hindu services per week. Subsequently, Hindu services were reduced from two hours to one hour per week. By reducing the scheduled hours for Hindu services, resources were freed to provide other religious services to inmates practicing their religions. The reduction to one hour of religious service per week was consistent with the policies at the NDSP. See Docket No. 46-4

("Pursuant to the facility policies, inmates are allowed to attend one hour of religious service each week. The institution's weekly schedule of religious services and activities is made available to all inmates."). The Court finds that the Defendants have a legitimate government interest in preserving scarce prison resources for religious worship. The Court further finds that there is a reasonable connection between reducing the number of hours for Hindu services and maximizing the resources.

The second factor under Turner is whether an inmate has an alternative means of exercising his religion. Burke has not shown he has been denied access to attend Hindu services, and has only shown that such access is limited to one hour per week. Burke has failed to provide any evidence establishing Thursdays as holy days of worship in the Hindu faith. Nor has Burke provided any evidence to refute Chaplain Vaughn's assertion that shaivite Hindus do not recognize a specific day of the week as a holy day for worship. Accordingly, the evidence establishes that the Defendants have afforded Burke sufficient means for Hindu worship on Tuesdays from 5:45 p.m. to 6:45 p.m.

Under the third factor of Turner, the Court must consider what impact the accommodation of the asserted constitutional right will have on (a) guards and other inmates and (b) the allocation of prison resources. The Court defers to the Defendants' determination that resources at the NDSP to serve the religious needs of the inmates are scarce. The Defendants are under a burden to allocate prison resources efficiently and effectively to minimize waste. The evidence reveals that the inmates are allowed to attend one hour of religious service per week. The Defendants allowed Burke to attend an additional hour of religious service per week prior to November 2006. Burke failed to take advantage of the extra hour and, therefore, the Defendants reduced Hindu worship services to one hour per week. By reducing Hindu worship services to one hour per week, prison resources were freed to be devoted to participating inmates. The efficient allocation of prison resources is a legitimate government interest. Accordingly, the Court finds that this factor weighs in favor of a finding that the regulation limiting Hindu worship services to one hour per week is reasonable.

The fourth factor under Turner is whether there are ready alternatives to the challenged regulation. "[P]rison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint. But if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard." Turner, 482 U.S. at 90-91 (emphasis in original). While the Court could envision other means by which the Defendants could accommodate Burke's religious needs, the Court defers to the Defendants on their choice of means to further legitimate penological interests. Policies at the NDSP allow inmates to attend one hour of religious service per week, and the Hindu worship service offered on Tuesdays satisfies prison policies. Burke requests that the Defendants to provide an additional hour for religious services regardless of the cost to valid penological interests. Burke has not presented any alternative means of accommodating his constitutional right to practicing his religion at de minimis cost to valid penological interests.

Burke contends the regulation limiting Hindu services to one hour per week violates the First Amendment, and the Defendants have unconstitutionally retaliated against Burke by reducing Hindu services to one hour per week. Burke contends he needs an additional hour per week on Thursdays for worship. Burke has failed to provide any evidence that his faith mandates a minimum number of hours of worship per week, or that Thursdays are holy days for shaivite Hindus. Even though Burke prefers to engage in Hindu worship on Thursdays, the evidence reveals that shaivite Hindus may worship on any day and often worship at dawn and/or dusk.

The record establishes that the Defendants have fully accommodated Burke's rights. Burke, along with other inmates incarcerated at the NDSP, may attend one hour of religious service per week. Prior to November 2006, the Defendants provided Burke with an additional hour of religious service per week, but Burke failed to utilize the extra hour. The Defendants have established that the regulation limiting an inmate's attendance of religious services to one hour per week was enacted to preserve scarce prison resources. Prison resources are scarce and must be utilized efficiently and effectively. Burke can adequately engage in Hindu worship on Tuesdays from 5:45 p.m. to 6:45 p.m. The Court finds that Burke has failed to raise a genuine issue of material fact as to whether the regulation limiting Hindu services to one hour per week violated his right to the free exercise of religion.

c) OVERVIEW

The Court finds that Burke has failed to raise a genuine issue of material fact of a Fourteenth Amendment or First Amendment violation on claims 2 and 12. Summary judgment is granted on claims 2 and 12.

2) CLAIM 13

In claim 13, Burke alleges that the Defendants have denied him items which are an essential part of Hindu worship. In the Court's order dated May 16, 2007, the Court determined that in claim 13, Burke raised a cognizable free exercise claim under the First Amendment. Burke clarified in his response to the Defendants' motion for summary judgment that he seeks relief pursuant to the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1, on this claim. The Court will address whether the denied use of camphor, kumkum, incense, and a butter lamp violated Burke's First Amendment right to the free exercise of religion and RLUIPA.

a) FIRST AMENDMENT

The penal regulation restricting Burke's use of camphor, kumkum, incense, and a butter lamp satisfies constitutional muster if the regulation is reasonably related to legitimate penological interests. See Turner, 482 U.S. at 89. To make this determination, the Court will examine the four factors under Turner.

First, the Court must determine whether there is a valid, rational connection between the regulation and a legitimate government interest. Pursuant to N.D.C.C. § 12-47-12, the warden, subject to the approval of the director of the DOCR, shall make laws regarding the admission of visitors, the government of officers and employees of the penitentiary, and the conduct of inmates imprisoned in the penitentiary. In accordance with N.D.C.C. § 12-47-12, Warden Tim Schuetzle and Director of Corrections and Rehabilitation Leann K. Bertsch, have approved the DOCR Policies and Procedures Manual. The Manual includes the procedures for ...


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