# Johnson v. Harris County

> District Court, S.D. Texas · September 9, 2022

URL: https://www.frixlaw.com/law-library/cases/10675785

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** September 9, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT September 12, 2022
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

IVORY JAMES JOHNSON §
(Inmate #02358381), §
§
Plaintiff, §
§
vs. § CIVIL ACTION NO. H-21-1558
§
HARRIS COUNTY, et al., §
§
Defendants. §

MEMORANDUM OPINION AND ORDER

Ivory James Johnson, representing himself and proceeding without prepaying the filing
fee, sued multiple defendants under 42 U.S.C. § 1983 based on his confinement and the conditions
at the Harris County Jail. (Docket Entry No. 1). The court dismissed Mr. Johnson’s claims against
the Honorable Ramona Franklin, the Assistant District Attorney prosecuting Mr. Johnson’s
criminal case, defense counsel Lance Hamm, the Harris County Jail, and Jail Supervisors C. Jones
and Clinton W. Perkins. (Docket Entry Nos. 16, 46, 50). The two remaining defendants, Detention
Officers Demitrie Johnson1 and Benjamin Womba, answered the complaint, (Docket Entry Nos.
64, 74), and filed motions for summary judgment. (Docket Entry Nos. 68, 93). Mr. Johnson
responded by filing his own motions for summary judgment and responses to the defendants’
motions.2 (Docket Entry Nos. 66, 89, 97). The defendants filed responses to Mr. Johnson’s
motions for summary judgment, (Docket Entry Nos. 70, 95), and a reply to his response to Officer

1Because both the plaintiff and one of the defendants have the same last name, the court will refer
to plaintiff Ivory James Johnson as “Mr. Johnson” and to Detention Officer Demitrie Johnson as “Officer
Johnson” in this order.

2Mr. Johnson has also filed numerous documents that he titles “Statement of Facts.” (Docket Entry
Nos. 4, 34, 39, 65, 85, 91, 96). These documents generally restate the facts Mr. Johnson has alleged in his
pleadings.
Johnson’s motion for summary judgment. (Docket Entry No. 98). Having reviewed the pleadings,
the motions, the exhibits, and all matters of record, the court grants the motions for summary
judgment filed by Officers Johnson and Womba, denies Mr. Johnson’s motions for summary
judgment, and dismisses this action with prejudice. The reasons for this ruling are explained

below.
I. Background
Mr. Johnson alleges claims arising from two separate incidents in the Harris County Jail.
The first incident occurred overnight from November 16 to 17, 2020, on the third floor of D Pod.
(Docket Entry No. 93-4, pp. 6-7). On the evening of November 16, Mr. Johnson was involved in
a fight with several other inmates. (Id.). Officers broke up the fight, and Mr. Johnson was placed
in a holding cell pending his transfer to another pod. (Docket Entry No. 42-8, p. 69-70 [sealed]).
Mr. Johnson’s time in the holding cell was captured on video. In the early morning hours
of November 17, Mr. Johnson intentionally blocked the toilet drain, causing water to flood the
cell. (Docket Entry No. 93-2 at 0:18-0:48). Officer Johnson, along with Officers Alexander and

Hafford, responded to Mr. Johnson’s cell to investigate. (Id. at 0:48-0:51). Officer Johnson had
Mr. Johnson step out of the cell, he placed Mr. Johnson in handcuffs and shackles, and he removed
Mr. Johnson’s shoes. (Id. at 3:33-4:52). Officer Johnson then told Mr. Johnson to go back into
the cell. (Id. at 4:54-5:03). When Mr. Johnson hesitated, Officer Johnson placed one hand on Mr.
Johnson’s back, grasped his arm, and guided him toward the cell door. (Id.). Once inside, Mr.
Johnson slipped on the wet floor and fell on his left side. (Id.).
Officers Alexander and Hafford entered the cell and helped Mr. Johnson to his feet and
then onto a bench along the cell wall. (Docket Entry Nos. 93-2 at 5:05-5:23; 93-4, p. 3). The
officers left the cell. Once alone in the cell, Mr. Johnson climbed on top of the toilet and also
wandered around the cell. (Docket Entry No. 93-2, 5:31-6:50). The officers briefly removed Mr.
Johnson from the cell when maintenance arrived to unclog the toilet, but then they returned him to
the cell. (Id. at 6:52-7:45). Still handcuffed and shackled, Mr. Johnson removed his socks, climbed
on top of the toilet again, and continued wandering around the cell. (Id. at 8:25-9:28). A short

time later, Officer Johnson returned and removed Mr. Johnson’s handcuffs and shackles, without
incident. (Id. at 9:28-10:42).
Mr. Johnson alleges that Officer Johnson used excessive force by pushing him into the cell
while he was handcuffed and shackled, causing him to fall and injure his arm and ribs. (Docket
Entry No. 17, pp. 3-4). Mr. Johnson seeks monetary damages for the injuries he allegedly suffered.
(Docket Entry No. 1, p. 6).
The second incident occurred on December 31, 2020. Detention Officer Dadzie was
working in F Pod, heard a loud noise, and turned to see two inmates kicking Mr. Johnson, who
was on the floor. (Docket Entry No. 68-4). Officer Dadzie called for back-up, and Officer Womba
responded. (Id.). After the inmates were separated, Officer Womba escorted Mr. Johnson to the

medical clinic for treatment of his injuries. (Id.). Mr. Johnson alleges that Officer Womba failed
to protect him from harm by refusing to remove him from F Pod earlier in the day when Mr.
Johnson told him that he feared for his safety. (Docket Entry No. 1, p. 6). This failure to act
allegedly allowed Mr. Johnson to be “jumped” by other inmates later in the evening. (Docket
Entry No. 51-1, p. 2 [sealed]). Mr. Johnson seeks monetary damages for the injuries he suffered
as a result of Officer Womba’s alleged failure to protect him from harm by other inmates. (Docket
Entry No. 1, p. 6).
II. The Legal Standards
A. Actions Under 42 U.S.C. § 1983
Mr. Johnson brings his claims against Officers Johnson and Womba under 42 U.S.C.
§ 1983. “Section 1983 does not create any substantive rights, but instead was designed to provide

a remedy for violations of statutory and constitutional rights.” Lafleur v. Texas Dep’t of Health,
126 F.3d 758, 759 (5th Cir. 1997) (per curiam); see also Baker v. McCollan, 443 U.S. 137, 144
n.3 (1979). To state a valid claim under § 1983, a plaintiff must (1) allege a violation of rights
secured by the Constitution or laws of the United States, and (2) demonstrate that the alleged
deprivation was committed by a person acting under color of state law. See West v. Atkins, 487
U.S. 42, 48 (1988); Gomez v Galman, 18 F.4th 769, 775 (5th Cir. 2021) (per curiam).
B. Summary Judgment
Officer Johnson, Officer Womba, and Mr. Johnson have all filed motions for summary
judgment. “Summary judgment is appropriate only if ‘the movant shows that there is no genuine
[dispute] as to any material fact and the movant is entitled to judgment as a matter of law.’”

Tolan v. Cotton, 572 U.S. 650, 656-57 (2014) (per curiam) (quoting FED. R. CIV. P. 56(a)). “The
movant bears the burden of identifying those portions of the record it believes demonstrate the
absence of a genuine [dispute] of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253,
261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)). “A fact is
material if its resolution could affect the outcome of the action.” Dyer v. Houston, 964 F.3d 374,
379 (5th Cir. 2020) (quoting Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134,
134 (5th Cir. 2010)). “A dispute is genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Westfall v. Luna, 903 F.3d 534, 546 (5th Cir. 2018)
(cleaned up).
The court considering a motion for summary judgment must view all evidence and draw
all inferences “in the light most favorable to the opposing party.” Tolan, 572 U.S. at 657 (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)); see also Dyer, 964 F.3d at 380. But if
record evidence clearly contradicts the opposing party’s version of events, the court “should not

adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
Waddleton v. Rodriguez, 750 F. App’x 248, 253-54 (5th Cir. 2018) (per curiam) (quoting Scott v.
Harris, 550 U.S. 372, 380 (2007)). This is particularly true when there is video evidence. When
video evidence exists, the court will “view[] the facts in the light depicted by the videotape.”
Salazar v. Molina, 37 F.4th 278, 280 (5th Cir. 2022) (quoting Scott, 550 U.S. at 381); see also
Betts v. Brennan, 22 F.4th 577, 582 (5th Cir. 2022) (“[W]e assign greater weight, even at the
summary judgment stage, to the video recording taken at the scene.”) (cleaned up); Carnaby v.
City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (“A court . . . need not rely on the plaintiff’s
description of the facts where the record discredits that description but should instead consider the
facts in the light depicted by the videotape.”) (cleaned up). The “court will not adopt facts that are

clearly contradicted by the video.” Waddleton, 750 F. App’x at 254 (citing Scott, 550 U.S. at 378).
In addition, the court will not consider the nonmoving party’s conclusory allegations and
unsubstantiated assertions as evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc).
C. Pro Se Pleadings
Mr. Johnson is representing himself, so the court construes his filings liberally, subjecting
them to “less stringent standards than formal pleadings drafted by lawyers[.]” Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam). But even under this lenient standard, self-represented
litigants must still “abide by the rules that govern the federal courts.” E.E.O.C. v. Simbaki, Ltd.,
767 F.3d 475, 484 (5th Cir. 2014) (quoting Frazier v. Wells Fargo Bank, N.A., 541 F. App’x 419,
421 (5th Cir. 2013)). “Pro se litigants must properly plead sufficient facts that, when liberally
construed, state a plausible claim to relief, serve defendants, obey discovery orders, present
summary judgment evidence, file a notice of appeal, and brief arguments on appeal.” Id. (footnotes

omitted).
III. Analysis
A. The Claim Against Officer Johnson
1. Excessive Force
Mr. Johnson alleges that Officer Johnson violated his constitutional rights when he used
excessive force to push Mr. Johnson into his cell, causing him to fall. Pretrial detainees like Mr.
Johnson have a Fourteenth Amendment right to be free from the use of excessive force. See
Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015). “Force against a pretrial detainee is
‘excessive’ and a violation of the Fourteenth Amendment when the force was objectively
unreasonable.” Fairchild v. Coryell Cnty., Tex., 40 F.4th 359, 362-63 (5th Cir. 2022) (citing

Kingsley, 576 U.S. at 396-97). Objective reasonableness “turns on the ‘facts and circumstances of
each particular case,’” and the court must consider objective reasonableness from the perspective
of a reasonable officer on the scene. Kingsley, 576 U.S. at 397 (quoting Graham v. Connor, 490
U.S. 386, 396 (1989)). Factors relevant to the reasonableness of force include “the relationship
between the need for force and amount of force used; the extent of the plaintiff’s injury; any effort
made to temper or limit the amount of force; the severity of the security problem at issue; the threat
perceived by the officer; and whether the plaintiff was actively resisting.” Id. The court must also
consider the legitimate governmental interests in managing the facility and the policies and
practices that, in the jail officials’ judgment, are necessary to preserve internal order and discipline
and to maintain institutional security. Id. (citing Bell v. Wolfish, 411 U.S. 520, 540, 547 (1979)).
Because of this, “[n]ot every push or shove, even if it may later seem unnecessary in the peace of
a judge’s chambers, violates a prisoner’s constitutional rights.” Hudson v. McMillian, 503 U.S. 1,
9 (1992) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). The Constitution does

not recognize minimal uses of force that do not rise to a level “repugnant to the conscience of
mankind.” Id. at 10 (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)).
In support of his motion for summary judgment, Officer Johnson offered his sworn
testimony, along with video of the events. That evidence shows that Mr. Johnson created a security
threat at the jail by intentionally flooding his cell. Officer Johnson responded to the scene, secured
Mr. Johnson, and then instructed Mr. Johnson to return to his cell while they waited for
maintenance. Only after Mr. Johnson refused to comply with this instruction did Officer Johnson
place a hand on Mr. Johnson’s back, grasp his arm, and guide him back into the cell. The force
used was minimal, but the minimal force combined with the wet floor caused Mr. Johnson to slip
and fall. While Mr. Johnson told Officer Alexander that he had pain in his right arm from the fall,

(Docket Entry No. 93-4, p. 6), Mr. Johnson did not ask for medical treatment and did not report
any injury to medical staff when he was seen the next day. (Docket Entry No. 42-4, pp. 137-38
[sealed]). Nothing in this evidence shows that Officer Johnson’s use of a minimal amount of force
to gain Mr. Johnson’s compliance was objectively unreasonable in light of all of the circumstances.
In his response to Officer Johnson’s motion, Mr. Johnson does not dispute that he refused
to comply with Officer Johnson’s instruction to reenter his cell, but he asserts that Officer
Johnson’s testimony about the events is false, that the cell video has been falsified, and that the
internal affairs investigation contains falsified documents. (Docket Entry No. 97, p. 1). “Officers
may consider a [person]’s refusal to comply with instructions . . . in assessing whether physical
force is needed to effectuate the [person]’s compliance.” Darden v. City of Fort Worth, Tex., 880
F.3d 722, 729 (5th Cir. 2018) (quoting Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)).
The summary judgment evidence shows that Officer Johnson used minimal force to compel Mr.
Johnson’s compliance after he refused to voluntarily reenter his cell. Mr. Johnson’s description of

the force as excessive is not supported by the summary judgment evidence. Mr. Johnson offers
no evidence to support his assertions that the testimony, videos, and investigative documents are
false. Mr. Johnson’s unsworn and conclusory allegations of excessive force and falsified
documents are insufficient to create factual disputes that can defeat the motion for summary
judgment. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (“We resolve
factual controversies in favor of the nonmoving party, but only where there is an actual
controversy, that is, when both parties have submitted evidence of contradictory facts.” (quoting
Little, 37 F.3d at 1075).
Because Mr. Johnson failed to carry his burden to demonstrate factual disputes material to
whether Officer Johnson’s use of force was objectively reasonable, Officer Johnson is entitled to

summary judgment in his favor. Mr. Johnson’s claim against Officer Johnson is dismissed.
2. Qualified Immunity
Even if there was some evidentiary basis to conclude that Officer Johnson used
constitutionally excessive force, he would be entitled to summary judgment under qualified
immunity.3 “The doctrine of qualified immunity shields officials from civil liability so long as
their conduct ‘does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson
v. Callahan, 555 U.S. 223, 231 (2009)). A right is clearly established when the existence of the

3While not specifically argued in his motion for summary judgment, Officer Johnson raised the
defense of qualified immunity in his answer to Mr. Johnson’s complaint. (Docket Entry No. 74, p. 3).
right is “sufficiently clear that every reasonable official would have understood that what he is
doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (cleaned up); see also
Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc). The doctrine is intended to
protect officers who “reasonably but mistakenly” violate a plaintiff’s constitutional rights, see

Freeman v. Gore, 483 F.3d 404, 415 (5th Cir. 2007) (quoting Goodson v. City of Corpus Christi,
202 F.3d 730, 736 (5th Cir. 2000)), and it “protects ‘all but the plainly incompetent or those who
knowingly violate the law.’” Mullenix, 577 U.S. at 12 (quoting Malley v. Briggs, 475 U.S. 335,
341 (1986)).
When a government official moves for summary judgment on the basis of qualified
immunity, “‘the burden . . . shifts to the plaintiff, who must rebut the defense by establishing a
genuine fact [dispute] as to whether the official’s allegedly wrongful conduct violated clearly
established law.’” Dyer, 964 F.3d at 380 (alteration in original) (quoting Brown v. Callahan, 623
F.3d 249, 253 (5th Cir. 2010)). “This burden will not be satisfied by ‘some metaphysical doubt as
to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla

of evidence.’” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). Instead, the
nonmoving party must identify specific evidence in the record and explain how that evidence
supports that party’s claim. See Willis v. Cleo Corp., 749 F.3d 314, 317 (5th Cir. 2014). The court
has no obligation “to sift through the record in search of evidence to support a party’s opposition
to summary judgment.” Id. (quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
1998)).
Mr. Johnson does not meet his burden. The video evidence shows that, at most, Officer
Johnson pushed Mr. Johnson through the open doorway of his cell. Even if the court were to view
this push as unnecessary, “‘[n]ot every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers’” constitutes excessive force. Hudson, 503 U.S. at 9 (quoting
Johnson, 481 F.2d at 1033). The video evidence does not support a conclusion that Officer
Johnson used force excessive to the need. The record evidence does not show that Mr. Johnson
suffered any injury in his fall. “An inmate who complains of a ‘push or shove’ that causes no

discernable injury almost certainly fails to state a valid excessive force claim.” Wilkins v. Gaddy,
559 U.S. 34, 38 (2010) (per curiam) (quoting Hudson, 503 U.S. at 9); see also Tanner v. Harris,
31 F. App’x 154, 2001 WL 1748205, at *3 (5th Cir. Dec. 12, 2001) (per curiam) (an officer was
entitled to qualified immunity when he pushed the handcuffed plaintiff out of the open first-floor
window of a burglarized building, causing the plaintiff to fall, because the force was neither clearly
excessive nor objectively unreasonable under the circumstances).
Mr. Johnson fails to show factual disputes material to whether Officer Johnson violated
clearly established law, and Mr. Johnson’s unsupported assertions that the push was unnecessary
and constitutionally excessive are insufficient. Officer Johnson is entitled to qualified immunity,
and Mr. Johnson’s excessive force claim against him is dismissed, with prejudice.

B. The Claim Against Officer Womba
Mr. Johnson alleges that Officer Womba violated his constitutional rights when he failed
to protect Mr. Johnson from harm caused by other jail inmates. The summary judgment evidence
does not support Mr. Johnson’s claim.
Mr. Johnson alleges that Officer Womba was assigned as the “pod deputy” on F Pod, where
Mr. Johnson was housed, on December 31, 2020. (Docket Entry No. 65, pp. 1-2). Mr. Johnson
alleges that he approached Officer Womba sometime in the afternoon and explained that he
believed he was in danger from the other inmates and needed to be moved to a different pod, but
Officer Womba refused to help and instead laughed at his fears. (Id. at 2). Mr. Johnson was
assaulted by inmates later that evening. He alleges that this resulted from Officer Womba’s failure
to protect him. (Id. at 3-4).
Jail officials are required to “take reasonable measures to guarantee the safety of the
inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). This includes taking measures to

protect inmates from harm caused by other inmates. See Farmer v. Brennan, 511 U.S. 825, 833-
34 (1994). Relief on a failure-to-protect claim requires an inmate to show both that the jail official
actually knew of a threat to a pretrial detainee’s health or safety and that the jail official acted with
deliberate indifference toward that threat. Id. at 837; see also Hare v. City of Corinth, Miss., 74
F.3d 633, 647-49 (5th Cir. 1996). Prison or jail officials who lack actual knowledge of a risk of
harm cannot be liable for a failure to protect. See Farmer, 511 U.S. at 844. And jail officials who
actually know of a risk of harm but who take reasonable steps to respond to that risk may not be
held liable “even if the harm ultimately was not averted.” Id.
Mr. Johnson’s claim fails on the first element. Officer Womba testified in his sworn
affidavit that he was not assigned to F Pod on December 31, 2020, either as a “pod deputy” or

otherwise, and that he never spoke with Mr. Johnson that day. (Docket Entry No. 68-1, p. 1-2).
Instead, Officer Womba responded to F Pod only after the evening fight involving Mr. Johnson.
(Id. at 1). Even then, Officer Womba’s involvement with Mr. Johnson was limited to escorting
him from the pod to medical after the fight. (Id.). In sum, Officer Womba testified that he had no
actual knowledge of any threat to Mr. Johnson’s health or safety before the fight occurred.
In response to Officer Womba’s motion for summary judgment, Mr. Johnson alleges that
jail officials have provided false testimony on behalf of Officer Womba. (Docket Entry No. 85,
p. 1). He also alleges that there is video of Officer Womba denying him assistance. (Id. at 2). Mr.
Johnson has provided no evidence to support his assertions. His description of the alleged video
evidence seems to confuse this event with the November 17 incident involving his fall in the
holding cell.
Faced with Officer Womba’s motion for summary judgment, Mr. Johnson had the burden
to direct the court’s attention to evidence sufficient to show that a genuine dispute of fact exists

that is material to the question of whether Officer Womba knew of a threat to Mr. Johnson’s safety
and was deliberately indifferent to it. But Mr. Johnson offers no evidence to support his version
of the events of December 31, 2020, and his conclusory and unsubstantiated allegations are
insufficient to create a genuine factual dispute. Officer Womba is entitled to summary judgment
in his favor, and Mr. Johnson’s claim against him is dismissed.
IV. Mr. Johnson’s Motions for Summary Judgment
Mr. Johnson filed two motions for summary judgment. (Docket Entry Nos. 66, 89). These
motions are based on Mr. Johnson’s unsubstantiated allegations concerning the events of
November 17 and December 31, 2020. Mr. Johnson does not point to evidence in support of his
motions. Nor does he identify portions of the record that demonstrate the absence of a genuine

dispute of material fact. Because Mr. Johnson has not met his burden as the party moving for
summary judgment, his motions are denied. See Pioneer Expl., LLC v. Steadfast Ins. Co., 767
F.3d 503, 511 (5th Cir. 2014) (“If the moving party fails to meet this initial burden, the motion [for
summary judgment] must be denied, regardless of the nonmovant’s response.”).
V. Motion for “Time Emergency”
Mr. Johnson filed a document entitled “Motion Time Emergency Investigation 30 Days.”
(Docket Entry No. 90). This “motion” contains a rambling set of facts that begin in 2018 and
continue into 2020. (Id.). Construed liberally, the allegations summarize Mr. Johnson’s version
of the facts relating to his two remaining claims, while also merging the facts relating to those two
claims into a single incident. (/d.). The motion asks the court to award Mr. Johnson monetary
damages for the injuries he suffered in the assaults. This motion, which asks for no relief other
than what Mr. Johnson seeks in his complaint, is denied.
VI. Conclusion and Order
The motion for summary judgment filed by Officer Benjamin Womba, (Docket Entry No.
68), is granted. The motion for summary judgment filed by Officer Demitrie Johnson, (Docket
Entry No. 93), is granted. The motions for summary judgment filed by plaintiff Ivory James
Johnson, (Docket Entry Nos. 66, 89), are denied. This action is dismissed with prejudice as to all
defendants. All pending motions, including Mr. Johnson’s “Motion Time Emergency,” (Docket
Entry No. 90), are denied. Final judgment will be separately entered.
SIGNED on September 9, 2022, at Houston, Texas.

LW CnerTe
Lee H. Rosenthal
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10675785. Public record. Not legal advice.