The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANIEL AMAYA, )
)
Plaintiff, )
)
v. ) Case No. 16-cv-1390-RJD
)
KIMBERLY BUTLER, JOHN A. BURROW, )
and MICHAEL ATCHISON, )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
Plaintiff Daniel Amaya, an inmate in the custody of the Illinois Department of Corrections
(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging his constitutional rights were
violated while he was incarcerated at Menard Correctional Center. More specifically, Plaintiff
alleges he was sexually assaulted during a shakedown and strip search conducted on April 1, 2016.
Plaintiff is proceeding in this matter on his Third Amended Complaint that sets forth the following
claims:
Count One: Eighth Amendment claim against Defendant John Burrow for
inflicting unnecessary physical and emotional pain and suffering
upon Plaintiff during the strip search, shakedown, and related
actions on April 1, 2016.
Count Two: Eighth Amendment claim against Kimberly Butler and Michael
Atchison for condoning and/or approving the Orange Crush Tactical
Team’s policies, practices or customs, and for failing to intervene
and stop the deprivation of Plaintiff’s constitutional rights on April
1, 2016.
Count Three: Intentional infliction of emotional distress under Illinois state law
against Michael Atchison, John Burrow, and Kimberly Butler in
connection with the strip search, shakedown and related actions on
April 1, 2016.
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Count Four: Conspiracy under 42 U.S.C. § 1983, in that Michael Atchison, John
Burrow, and Kimberly Butler agreed to deprive Plaintiff of his
constitutional rights and protect one another from liability in
connection with the strip search, shakedown, and related actions on
April 1, 2016.
At all times relevant to the complaint, Defendant John Burrow was a correctional officer at
Pinckneyville Correctional Center and a member of the Special Operations Response Team,
Defendant Kimberly Butler was the warden at Menard, and Defendant Michael Atchison was the
Chief of Operations for the IDOC. Defendants filed a motion for summary judgment on all
claims that is now before the Court (Doc. 155). Plaintiff filed a response (Doc. 159), and
Defendants filed a reply (Doc. 161). For the reasons set forth below, Defendants’ Motion for
Summary Judgment is GRANTED IN PART AND DENIED IN PART.
Factual Background
At all times relevant to the complaint, Plaintiff Daniel Amaya was incarcerated within the
IDOC at Menard Correctional Center (“Menard”) (Doc. 156-1 at 3). During the relevant time,
Plaintiff was housed in the East House on Gallery 10 in Cell 20 (Id. at 5; see Doc. 156-10).
Plaintiff’s cellmate was an inmate named LaSean Jackson (Doc. 156-1 at 5). On April 1, 2016,
Menard’s East House, where Plaintiff was housed, was “shaken down” by the Special Operations
Response Team (“SORT”), also referred to by inmates as “Orange Crush” (Doc. 64; Doc. 156-1 at
4).
When SORT officers conduct a search, they generally line up with one officer in front of
each cell (Doc. 156-4 at 33-34). The officer in front of each cell calls each inmate in the cell to the
cell door individually to be strip searched (Doc. 156-1 at 5). During a search, SORT officers wear
identical uniforms, including a black helmet with a sliding clear shield that covers their face,
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orange jumpsuits, gloves and boots (Doc. 159-7 at 14). There is conflicting testimony as to
whether SORT officers were assigned a cell to conduct a strip search or cell shakedown. In
particular, Defendant Burrow, Defendant Atchison, and Anthony McAlister, a former captain and
member of the tactical team, testified that officers were not assigned to a specific cell (Doc. 156-3
at 8; Doc. 156-4 at 33-34; Doc. 156-8 at 50-51). However, Lance Phelps, a correctional counselor
at Menard and former member of the tactical team, testified that officers were assigned a cell to do
a strip search (Doc. 159-1 at 29). During the relevant time, SORT officers did not wear any
identification (Doc. 159-7 at 14).
During the shakedown of Plaintiff’s gallery on April 1, 2016, Plaintiff was strip searched
(Doc. 156-1 at 5-6). Plaintiff testified he was called to the bars of his cell and, while he was at the
bars, he was removing his clothing, including his underclothes (Id. at 6). Plaintiff placed his
clothing in the bars of the cell to be searched (Id.). The officer conducting the search told Plaintiff
to lift his testicles, “wiggle”, and pull back his foreskin, to which Plaintiff complied (Id.). The
officer also told Plaintiff to bend over and the officer then blew into Plaintiff’s anus (Id.).
Plaintiff later heard the officer do the same thing to his cellmate (Id. at 6-7). After he donned his
clothing, Plaintiff was handcuffed and lined up outside of his cell to be escorted out of the building
with the other inmates on his gallery (Id. at 7). While lined up outside of his cell, Plaintiff noticed
that his shirt was untucked (Id.). Plaintiff attempted to tuck in his shirt with his hands cuffed
behind his back (Id.). The officer who conducted Plaintiff’s strip search grabbed Plaintiff by the
neck and started tucking in his shirt (Id.). While taking this action, the officer grabbed Plaintiff
from behind, and grabbed his buttocks and genitalia, telling Plaintiff he had “easy access” (Id.).
The officer grabbed Plaintiff’s genitalia again just before he went down the stairs to the chapel
(Id.). Plaintiff and the inmates from his gallery remained in the chapel while the SORT officers
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were conducting a search of the cells on Plaintiff’s gallery (Id. at 11). When Plaintiff returned, his
cell was in disarray and his legal paperwork had been mixed with his cellmate’s and some legal
paperwork was missing (Id. at 10). Following the events that occurred on April 1, 2016, Plaintiff
was diagnosed with post-traumatic stress disorder (“PTSD”) (Id. at 15).
Generally, SORT officers return to the same gallery where they strip searched inmates to
conduct shakedowns of those cells (Doc. 156-3 at 8). Although Plaintiff did not witness the
shakedown of his cell, a log from April 1, 2016 and Defendant Burrow’s deposition testimony
confirm that Burrow conducted the search of Plaintiff’s cell (Doc. 159-5; Doc. 159-6; Doc. 159-7
at 12). There is conflicting testimony as to whether a SORT officer would strip search inmates
from the same cell that the officer conducted a cell shakedown. In particular, Defendant Burrow
testified that it would be rare to do a cell search of the cell he strip searched (Doc. 156-3 at 13), and
Darren Whitley, the Internal Affairs/Intelligence supervisor at the relevant time, and Anthony
McAllister testified the officers who conducted the strip searches would not necessarily search the
corresponding cell (Doc. 156-6 at 14; Doc. 156-8 at 52). However, Lance Phelps testified that he
would “normally” return to do a cell search of the same cell he strip searched (Doc. 159-1 at 30),
and Defendant Atchison testified that it “could be” the same officer who conducted both searches
(Doc. 159-10 at 66).
During a regularly scheduled mental health appointment on April 4, 2016, Plaintiff
reported the alleged sexual assault (Doc. 156-1 at 11; Doc. 156-5 at 3) and an internal affairs
investigation was completed with a finding that the allegations were not substantiated (Id. at 2).
With regard to the identity of the SORT officer who conducted the strip search, Plaintiff
described him at his deposition as a white male who wore shiny-framed glasses and tried to speak
to him in Spanish (Doc. 156-1 at 6). Plaintiff had previously described the SORT officer as a
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non-black male to his mental health counselor and during the Internal Affairs investigation (see
Doc. 150-5). Plaintiff testified that the officer who shook him down was the same officer that
escorted him and his cellmate to the chapel and then back to their cell because he recognized the
officer’s voice each time (Doc. 156-1 at 9). Based on a review of a photograph array, Plaintiff
identified the officer that conducted his strip search and committed the alleged assault as John
Burrow (Doc. 159-8 at ¶ 1). Plaintiff also reviewed the video deposition of John Burrow and
positively confirmed that Burrow was the officer who conducted the strip search and assaulted him
(Id. at ¶ 2). Burrow does not recall doing a strip search of Plaintiff and denies that he sexually
assaulted Plaintiff (Doc. 156-3 at 12; Doc. 64). Defendant Burrow testified that he was not
wearing glasses in April of 2016 because he had Lasik eye surgery in 2014 (Doc. 156-3 at 16).
Defendant Burrow was also named as a defendant in a lawsuit filed by Plaintiff’s cellmate,
LaSean Jackson, with the understanding that the same person allegedly assaulted Plaintiff and Mr.
Jackson (Doc. 159-7 at 12).
Defendant Butler was the warden at Menard from April 2014 to April 2016, when she
became Chief of Programs for IDOC (Doc. 159-11 at 4). Butler does not recall if she was at
Menard on April 1, 2016, as that was the first day on her new job (Id. at 10). However, she also
testified that she made it a point to be at the prison during “full scale” shakedowns (Id.). There
were many investigations involving Tactical Team members, and according to Darren Whitley,
the prisoners were often unable to identify the alleged perpetrator (Doc. 159-9 at 51). Butler
testified that “there may have been” grievances referencing an inability of prisoners to identify
SORT officers (Doc. 159-11 at 13). Once an internal affairs investigation was completed,
Whitley would submit it to Butler who, as warden, would either approve or disapprove (Doc.
159-9 at 60). Butler testified that she reviewed internal affairs investigations, but relied on
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investigative staff to conduct the investigations as they were specially trained in that area (Doc.
159-11 at 7). With regard to the investigation into Plaintiff’s claims of sexual assault, Defendant
Butler testified that the investigation was not thorough and she “probably would have requested
more interviews based on the incident report” (Id. at 16).
Prior to the occurrence at issue in this lawsuit, in October of 2013 or 2014, Plaintiff had
submitted a grievance directed to Butler asserting the institution had knowledge that “Orange
Crush” were abusing inmates (Doc. 156-1 at 13). Plaintiff is also aware of another lawsuit, Ross
v. Gossett, et al., 15-cv-309-SMY, that should have put Butler on notice of “sexual misconduct
with officers and inmates during the Orange Crush proceedings” (Id.).
Defendant Michael Atchison, the Chief of Operations for the IDOC at all times relevant,
testified that he is aware of the Ross lawsuit filed in 2015 and has been in conferences regarding
the same (Doc. 156-4 at 25). Atchison acknowledged that SORT officers do not wear identifiers
on their jumpsuit that would identify them by name, and testified that he was not aware of any
document listing the SORT officer that conducted a particular strip search (Id. at 30-35).
Anthony McAllister testified that he discussed with Defendant Atchison the inability to identify
SORT officers due to a lack of identification (Id. at 28). McAllister also testified that SORT
officers now may possibly have identification likely because of complaints similar to those made
by Plaintiff here (Id. at 90). Atchison does not know if he was at Menard during the SORT
shakedown on April 1, 2016 (Id. at 64).
Summary Judgment Standard
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also
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Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005).
The moving party bears the initial burden of demonstrating the lack of any genuine issue of
material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary
judgment is made, the adverse party “must set forth specific facts showing there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of
material fact exists when “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting
Anderson, 477 U.S. at 248). In assessing a summary judgment motion, the district court views the
facts in the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving
party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation
omitted).
Discussion
Count One – Eighth Amendment claim against Defendant Burrow
Plaintiff alleges Defendant Burrow violated his Eighth Amendment rights by inflicting
unnecessary physical and emotional pain and suffering upon him during the strip search that
occurred on April 1, 2016. More specifically, Plaintiff alleges Defendant Burrow blew into his
anus and grabbed his testicles during a strip search executed by SORT officers.
Defendant Burrow asserts summary judgment in his favor is warranted because Plaintiff
has not provided sufficient evidence he personally participated in or caused the alleged
unconstitutional action. Burrow relies on Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir.
2017), asserting Plaintiff is not able to determine which one of the several SORT officers present
for the April 1, 2016 shakedown violated his constitutional rights.
It is well settled that liability under § 1983 is predicated on a defendant’s personal
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involvement in the alleged constitutional violation. Palmer v. Marion County, 327 F.3d 588, 594
(7th Cir. 2003) (citations omitted). To be personally responsible, an official “must know about
the conduct and facilitate it, approve it, condone it, or turn a blind eye.” Knight v. Wiseman, 590
F.3d 458, 463 (7th Cir. 2009) (quoting Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006)
(citing Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).
As a preliminary matter, the Court finds Plaintiff’s claim related to the strip search is easily
distinguishable from Colbert insofar as the plaintiff in Colbert named ten officers who were
involved in a search of his apartment, but admitted he was unable to identify the officers who
destroyed his property. 851 F.3d at 657. In this instance, Plaintiff has identified Burrow as the
officer who assaulted him during the strip search on April 1, 2016, and Plaintiff was clearly
physically present during the alleged assault and able to make such an identification. However,
Colbert is similar to Plaintiff’s claims related to the shakedown of his cell. As argued by
Defendant, although Burrow was involved in and signed the shakedown slip of Plaintiff’s cell,
there were a number of other SORT officers involved in the shakedown of the gallery on that date,
and cells were double and triple-checked by supervisory staff (see Doc. 156-8 at 65-66). As such,
it is impossible to determine who left Plaintiff’s cell in disarray. Further, based on the record
before the Court, it is not apparent that the shakedown of Plaintiff’s cell and the attendant
“messiness” gives rise to a claim under the Eighth Amendment. For these reasons, Burrow is
entitled to summary judgment as to Count One related to the shakedown of Plaintiff’s cell.
The Court finds, however, that there is a genuine dispute of material fact as to whether
Defendant Burrow was personally involved in the strip search and alleged sexual assault that
occurred on April 1, 2016. The Court acknowledges Defendant’s position that he does not fit
Plaintiff’s description of the individual who sexually exploited Plaintiff as he does not wear
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glasses and asserts Plaintiff only named him as a defendant because he searched Plaintiff’s cell on
April 1, 2016. However, Plaintiff has set forth evidence that he was able to identify Defendant
Burrow by photograph and audio based on his recollection from April 1, 2016. Plaintiff also
submitted evidence that SORT officers strip searched inmates from the cells that they also
searched, and it is undisputed that Burrow completed a shakedown of Plaintiff’s cell on April 1,
2016. As such, there is at least some evidence that positively identifies Burrow as Plaintiff’s
assailant and the Court must view the evidence at this stage in the light most favorable to Plaintiff.
Because there is a genuine dispute as to the personal involvement of Burrow in the alleged sexual
assault set forth in Count One, Defendant Burrow is not entitled to summary judgment as to that
claim.
Count Two – Eighth Amendment claim against Defendants Butler and Atchison
Defendants Butler and Atchison assert summary judgment should be granted in their favor
because they were not personally involved in the alleged constitutional deprivation and the
doctrine of respondeat superior does not apply to actions under § 1983. Defendants argue there is
no evidence they were at Menard on April 1, 2016, and assert Plaintiff cannot base his claim on
their knowledge of other, prior cases involving alleged sexual misconduct by a member of the
SORT.
Plaintiff asserts he does not premise his claim on the doctrine of respondeat superior, and
asserts that Butler and Atchison should be held personally liable because they oversaw, turned a
blind eye to, and failed to intervene on the known violations of SORT officers. More specifically,
Plaintiff argues these Defendants knew about the allegations against SORT officers, had
reasonable opportunities to prevent future conduct of that nature, and instead, willingly and
knowingly turned a blind eye to the “unsubstantiated” allegations against SORT officers,
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including allegations where a SORT officer could not be identified.
To state a claim for failure to intervene under the Eighth Amendment, Plaintiff must
demonstrate that he was held under conditions posing a substantial risk of serious harm and that
Defendants acted with deliberate indifference to that risk. Brown v. Budz, 398 F.3d 904, 909 (7th
Cir. 2005). To constitute serious harm, “the deprivation alleged must be objectively, sufficiently
serious.” Id. at 910. It is well settled that being sexually assaulted meets that standard.
A substantial risk that the serious harm will occur has been variously described as a known
propensity of one person to harm a particular individual or class of individuals; highly probable
attacks; or a heightened risk of a plaintiff being assaulted. Brown, 398 F.3d at 911.
Here, Plaintiff has provided some evidence that there were previous complaints and
lawsuits against SORT officers for the way in which they conducted their searches. However,
even when viewing the evidence in the light most favorable to Plaintiff, the Court cannot find any
evidence in the record to support a finding that there was a substantial risk of the type of serious
harm alleged by Plaintiff. Further, there is no indication that Defendants Butler or Atchison were
aware of any propensity by Defendant Burrow to commit a sexual assault. The Court understands
that Plaintiff’s cellmate, LaSean Jackson, also filed suit against Burrow for an alleged sexual
assault; however, these allegations did not precede those here as both Plaintiff’s and Jackson’s
lawsuits relate to incidents that occurred on April 1, 2016. Moreover, even if there was evidence
that Burrow presented a substantial risk of serious harm to Plaintiff, there is no evidence that
Defendants knew of the risk of assault and disregarded it. The mere fact that there had been
other complaints about SORT officers and the inability of inmates to identify officers is not
sufficient to demonstrate a known risk of assault by Burrow.
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For these reasons, Defendants Butler and Atchison are entitled to summary judgment as to
Count Two.
Count Three – Intentional infliction of emotional distress under Illinois state law against
Defendants Atchison, Burrow, and Butler
Under Illinois law, a plaintiff must establish the following elements to succeed on a claim
of intentional infliction of emotional distress: (1) that the defendants’ conduct was extreme and
outrageous; (2) that Defendants intended their conduct to inflict severe emotional distress or knew
there was at least a high probability their conduct would inflict such distress; and (3) that their
conduct actually caused severe or extreme emotional distress. Lopez v. City of Chicago, 464 F.3d
711, 720 (7th Cir. 2006). Extreme and outrageous conduct is that which goes “beyond all bounds
of decency and [is] considered intolerable in a civilized community.” Id. (citations omitted).
The Court has already found that Defendants Butler and Atchison did not violate the
Eighth Amendment in failing to intervene and protect Plaintiff from the alleged sexual assault that
occurred on April 1, 2016. Based on the record in this case, the Court concludes that Plaintiff’s
failure to establish sufficient evidence to proceed on his § 1983 claim against Butler and Atchison
necessarily precludes him from making an adequate showing of extreme and outrageous conduct
or that these Defendants intentionally or recklessly caused severe emotional distress as a matter of
law.
With regard to Defendant Burrow, however, the Court reaches a different conclusion.
Based on the record before the Court, a reasonable jury could conclude that Defendant Burrow’s
conduct was “extreme and outrageous” to rise to the level contemplated for an IIED claim.
Moreover, Plaintiff has presented evidence he was diagnosed with PTSD as a result of the alleged
sexual assault.
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The Court also rejects Defendant Burrow’s argument that Plaintiff’s IIED claim is barred
by state law sovereign immunity or public official immunity as the statutes on which Burrow relies
require that the actions at issue be within Burrow’s authority and aligned with current law. Here,
the allegations that Burrow blew into Plaintiff’s anus and grabbed his genitalia are beyond his
employment authority and, as testified to by all Defendants, inappropriate and violate established
law. Accordingly, Plaintiff shall be allowed to proceed on Count Three against Defendant
Burrow, but summary judgment on this claim shall be awarded in favor of Defendants Butler and
Atchison.
Count Four - Conspiracy under 42 U.S.C. § 1983, in that Michael Atchison, John Burrow, and
Kimberly Butler
Defendants assert summary judgment as to Count Four is warranted because Plaintiff has
admitted that Defendants did not actually engage in a conspiracy or conspire to protect the SORT
officer who allegedly sexually assaulted Plaintiff. Plaintiff did not respond to Defendants’
argument as to Count Four.
The Court finds no evidence in the record to support this claim and summary judgment is
therefore granted in favor of Defendants on Count Four.
Qualified Immunity
Generally, government officials are protected from civil liability when performing
discretionary functions under the doctrine of qualified immunity so long as “their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Alvarado v. Litscher, 267
F.3d 648, 652 (7th Cir. 2001). Thus, in order to evaluate a claim of qualified immunity, the Court
engages in a two-part inquiry. The first question is whether the defendants’ conduct violated a
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constitutional right. Volkman v. Ryker, 736 F.3d 1084, 1090 (citing Saucier v. Katz, 533 U.S.
194, 201 (2001) (overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009)). The second
question is whether that particular constitutional right was “clearly established” at the time of the
alleged violation. Id. The two questions may be considered in either order. Volkman, 736 F.3d
at 1090 (citing Pearson, 555 U.S. at 236-42).
Defendants Burrow, Butler, and Atchison assert they are entitled to qualified immunity
arguing Plaintiff cannot establish they violated his constitutional rights and, if they were to be held
liable on the facts alleged, it would constitute a heightened standard for an Eighth Amendment
claim.
The Court need not consider the question of qualified immunity as to Defendants Butler
and Atchison as the Court has already found they did not violate Plaintiff’s constitutional rights.
With regard to Defendant Burrow, the only claim on which Plaintiff is proceeding is Count One
concerning the alleged sexual assault that occurred on April 1, 2016. The Court finds Burrow is
not entitled to qualified immunity as to this claim because it was clearly established at the time of
the occurrence that sexually exploiting and assaulting an inmate violated the inmate’s
constitutional rights.
Conclusion
Based on the foregoing, the Motion for Summary Judgment filed by Defendants Burrow,
Butler, and Atchison (Doc. 155) is GRANTED IN PART AND DENIED IN PART. The Clerk
of Court is directed to enter judgment in favor of Defendants Kimberly Butler and Michael
Atchison and against Plaintiff at the close of this case. Summary judgment is also GRANTED in
favor of Defendant Burrow as to Plaintiff’s claim in Count One related solely to the shakedown of
his cell.
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Plaintiff shall proceed in this matter on the following claims:
Count One: Eighth Amendment claim against Defendant John Burrow for inflicting
unnecessary physical and emotional pain and suffering upon Plaintiff
during the strip search that occurred on April 1, 2016.
Count Three: Intentional infliction of emotional distress under Illinois state law against
Defendant John Burrow in connection with the strip search that occurred on
April 1, 2016.
IT IS SO ORDERED.
DATED: June 17, 2021
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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