          Case: 17-11466   Date Filed: 06/19/2018   Page: 1 of 19


                                                     [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11466
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 6:15-cv-01648-PGB-DCI



BRYAN HENNING,

                                                     Plaintiff - Appellant,

                                 versus

WALMART STORES INC. et al.,

                                                     Defendants,

D. CASEY,
Sargent, #550,
COUNTY OF BREVARD,

                                                     Defendants - Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________
                            (June 19, 2018)
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Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

       Bryan Henning was shopping at a Walmart in Brevard County, Florida,

when two law enforcement officers informed him that the store manager had asked

that he be issued a trespass warning. Despite the officers’ instructions to leave,

Henning attempted to remain in the store. After the officers escorted Henning

outside, they detained him for approximately 15 minutes while they completed a

written trespass warning.

       Henning sued Brevard County and one of the officers who detained him,

alleging that he was falsely imprisoned and that his detention violated his Fourth

Amendment rights. He also alleged that Brevard County caused his illegal

detention by adopting unconstitutional policies regarding trespass warnings and

failing to train its officers on proper detention procedures.1 The district court

granted summary judgment to Brevard County and the officer, and Henning

appealed. After careful review, we affirm.

                                 I.      BACKGROUND

A.     Factual History

       The Brevard County Sheriff’s Department received a complaint about a man

inside a McDonald’s restaurant who had been photographing another customer

       1
         Henning also sued two other defendants, but the claims against them have been resolved
and therefore are irrelevant to this appeal.
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without his permission. Brevard County Sheriff’s Deputy Aimee Slater was

dispatched to the McDonald’s to investigate. When she arrived, she observed a

white van matching the description of the man’s vehicle parked outside the

restaurant. The van’s rear windows were completely covered, and a divider

separated the front driver and passenger seats from the rear of the van.

         Slater knocked on the van’s door, and a man came through the divider to the

front of the van. On Slater’s request, the man exited the van and provided his

driver’s license, which identified him as Bryan Henning. Henning denied taking

any photographs while inside the McDonald’s. He explained that he was merely

using his camera’s viewfinder to look at photographs he had previously taken. He

also told Slater that he had been sleeping in his van a lot lately.

         Observing a child’s car seat containing a juice box and a McDonald’s toy in

the front passenger seat of Henning’s van, Slater asked Henning whether he had a

child with him. He asked Slater why she wanted to know, and she explained that

she wanted to make sure the child had a safe place to sleep. Henning responded

that he had two children, but they were not with him, nor had he seen them for a

while.

         Slater asked for Henning’s consent to search his camera and van, but he

declined. She then told Henning that he needed permission from the restaurant to

sleep in his van in the parking lot. After learning from a McDonald’s employee


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that McDonald’s does not permit anyone to park on its property overnight, Slater

informed Henning that he could not sleep in his van in the parking lot.

       As Slater was speaking with Henning, Brevard County Sheriff’s Department

Sergeant Dennis Casey arrived on the scene. Like Slater, Casey asked Henning for

consent to search his camera and van. According to Henning, Casey explained that

he wanted to search the van for “dead bodies.”2 Doc. 95 at 33. 3 Henning again

withheld his consent, which, according to Henning, made Casey “extremely irate.”

Id. at 34. Slater and Casey then completed their investigation and told Henning

that he was free to leave.

       Henning left the McDonald’s and traveled to a nearby Walmart. He noticed

that a Brevard County Sheriff’s Department vehicle was following him. When he

arrived at the Walmart, Henning went inside to purchase supplies to fix a broken

surfboard he had found. Meanwhile, Casey, Slater, and a few other law

enforcement officers observed Henning’s van in the Walmart parking lot. Casey

saw signs indicating that Walmart did not permit overnight camping in its parking

lot. Concerned that Henning planned to sleep in his van in the lot, 4 Casey again

approached the van and knocked on the windows. When there was no answer,

       2
         Because this is an appeal from a ruling on Casey’s and Brevard County’s motion for
summary judgment, we present the facts in the light most favorable to Henning, the non-moving
party. See Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011).
       3
           All citations in the form “Doc. #” refer to the district court docket entries.
       4
         Henning testified that he did not intend to sleep overnight in his van in the Walmart
parking lot and that he did not observe any signs prohibiting overnight camping.
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Casey instructed Slater and another deputy, Michael Hoffman, to locate Henning

inside the Walmart.

       With the assistance of Walmart personnel, Slater and Hoffman located

Henning in the aisle containing duct tape and rope. A Walmart employee told the

officers that Henning had been in this aisle for an “extended time.” Doc. 91 ¶ 18.

Slater conveyed Henning’s location to Casey, who then contacted the store

manager to explain his and Slater’s previous interaction with Henning at the

McDonald’s. The store manager told Casey that she wished for Henning to be

given a trespass warning.

       Slater and Hoffman approached Henning and informed him that the Walmart

manager wanted him “trespassed” from the store. Id. ¶ 20. Slater instructed

Henning to walk out of the store with her and Hoffman to complete paperwork,

but, according to Slater, Henning stood in place and became argumentative. It was

not until after Slater and Hoffman gave Henning several verbal commands that he

began walking with them toward the front of the store. As they approached the

front of the store, Henning again became argumentative and asked if he was being

forced to leave. Slater and Hoffman continued toward the exit, but Henning

stopped walking and became belligerent, using a “loud voice” and “foul language.”

Id. ¶ 21. Each of the deputies took hold of one of Henning’s arms and led him out

of the store.


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        Once outside, Slater and Hoffman escorted Henning to his van, where

Casey and at least one other deputy were waiting. Henning asked whether he was

being detained, and Casey responded that he was. The parties stipulated that Casey

detained Henning for the purpose of writing a trespass warning. Henning provided

the officers with his driver’s license and other information they needed to complete

the written trespass warning. One of the officers asked Henning to sign the

trespass warning after it was completed, but he refused. The officers informed

Henning that he would be arrested if he returned to the Walmart and advised him

to leave the property. Henning estimated that 20 minutes elapsed between when

Slater and Hoffman first approached him in the Walmart and when the officers told

him he was free to go after completing the trespass warning. He estimated that his

detention in the parking lot consisted of roughly 10 to 15 minutes of that time.

B.    Procedural History

      Henning, proceeding pro se, filed suit against Casey and Brevard County.

He asserted claims against Casey for malicious prosecution, abuse of process, and

illegal detention, all in violation of 42 U.S.C. § 1983, and for false imprisonment in

violation of Florida law. As for Brevard County, Henning asserted a § 1983 claim

for failure to train its officers regarding the constitutional limitations on detention.

      Casey and Brevard County filed a motion to dismiss, and a magistrate judge

recommended that the district court grant the motion. Henning raised no objection


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to the dismissal of his claims against Casey for malicious prosecution and abuse of

process, but he did object to the dismissal of his claims against Casey for illegal

detention and false imprisonment and against Brevard County for failure to train.

      The parties began discovery while the motion to dismiss was pending.

Henning filed two motions to compel, asking the district court to order Casey and

Brevard County to respond to certain interrogatories and requests for the

production of documents. These motions remained pending on the day before the

dispositive motions deadline, so Henning filed a motion to modify the scheduling

order and extend the dispositive motions deadline until after he received a ruling

on his motions to compel.

      Casey and Brevard County then filed a motion for summary judgment on all

of Henning’s claims. In his response, Henning argued only that his ability to

defend against summary judgment had been prejudiced by Casey’s and Brevard

County’s refusal to respond to his discovery requests and that, as a result, the

district court should defer ruling on the summary judgment motion until after it

ruled on his motions to compel. Henning attached no evidence to his response.

      The district court then entered an order ruling on the pending motions. First,

because Henning raised no objection, the district court dismissed Henning’s § 1983

claims against Casey for malicious prosecution and abuse of process. Second, the

district court granted summary judgment against Henning on his remaining claims


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for illegal detention, false imprisonment, and failure to train. Finally, the district

court denied Henning’s request to defer ruling because, in the court’s view, the

information and documents that Henning had requested would not have impacted

its analysis or conclusions regarding summary judgment.

      Henning appealed. He challenges the district court’s grant of summary

judgment on his claims for illegal detention, false imprisonment, and failure to

train and its refusal to defer ruling on the motion for summary judgment until after

it ruled on his motions to compel.

                        II.    STANDARDS OF REVIEW

      We review de novo summary judgment rulings, drawing all inferences and

reviewing all evidence in the light most favorable to the non-moving party. Moton

v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). Summary judgment is

appropriate “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.” Fed. R. Civ. P.

56(a). “The moving party may meet its burden to show that there are no genuine

issues of material fact by demonstrating that there is a lack of evidence to support

the essential elements that the non-moving party must prove at trial.” Moton, 631

F.3d at 1341 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

      We review the district court’s discovery rulings for an abuse of discretion.

See Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th


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Cir. 2011). We will not overturn discovery rulings “unless it is shown that they

resulted in substantial harm to the appellant’s case.” Id. at 1307 (alteration

adopted) (internal quotation marks omitted).

                                III.   DISCUSSION

A.    Casey Is Entitled to Qualified Immunity on Henning’s § 1983 Illegal
      Detention Claim.

      Henning first appeals the district court’s grant of summary judgment to

Casey on Henning’s § 1983 illegal detention claim. The district court concluded

that Henning’s claim failed as a matter of law because Casey was entitled to

qualified immunity. We agree.

      To prove a claim brought under § 1983, a plaintiff must show that he “was

deprived of a federal right by a person acting under color of state law.” Almand v.

DeKalb Cty., 103 F.3d 1510, 1513 (11th Cir. 1997). When defending against a

§ 1983 claim, however, a government official may assert the defense of qualified

immunity, which “allow[s] government officials to carry out their discretionary

duties without the fear of personal liability or harassing litigation.” Lee v. Ferraro,

284 F.3d 1188, 1194 (11th Cir. 2002). A government official asserting this

defense bears the initial burden of showing that “he was acting within his

discretionary authority.” Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir.

2007). This requires showing that the government official’s “actions were

undertaken pursuant to the performance of his duties and within the scope of his
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authority.” Roberts v. Spielman, 643 F.3d 899, 903 (11th Cir. 2011) (internal

quotation marks omitted).

      Assuming Henning has challenged whether Casey was acting within his

discretionary authority when he detained Henning outside the Walmart to issue a

written trespass warning, we have observed that law enforcement officers were

performing their law enforcement duties within the scope of their authority when

they informed an individual that he was no longer allowed to be on private

property, escorted him off the property, and issued him a trespass warning. See

Zivojinovich v. Barner, 525 F.3d 1059, 1071 (11th Cir. 2008) (explaining that the

law enforcement officers “were lawfully executing their legal duty” by undertaking

these actions). Based on Barner, we conclude that Casey was acting within his

discretionary authority here.

      Because Casey was acting within his discretionary authority, the burden

shifts to Henning to show that Casey is not entitled to qualified immunity. Cottone

v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003). To do so, Henning must show that

“(1) [Casey] violated a constitutional right, and (2) this right was clearly

established at the time of the alleged violation.” Holloman ex rel. Holloman v.

Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). Henning argues that his detention

violated his rights under the Fourth Amendment, but we disagree.




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      The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons . . . against unreasonable searches and seizures.” U.S. Const. amend

IV. “A person is seized by the police and thus entitled to challenge the

government’s action under the Fourth Amendment when the officer, by means of

physical force or show of authority, terminates or restrains [the person’s] freedom

of movement.” Brendlin v. California, 551 U.S. 249, 254 (2007) (internal

quotation marks omitted). Even a temporary detention for only a brief period of

time constitutes a “seizure” within the meaning of the Fourth Amendment. Whren

v. United States, 517 U.S. 806, 809-10 (1996). Typically, a Fourth Amendment

seizure is “reasonable” only if based on probable cause to believe that the

individual has committed a crime. Bailey v. United States, 568 U.S. 186, 192

(2013).

      Here, the parties agree that Casey’s detention of Henning outside the

Walmart was a “seizure” within the meaning of the Fourth Amendment. The only

issue, then, is whether the detention was reasonable because it was supported by

probable cause to believe that Henning had committed a crime. We conclude that

it was.

      Under Florida law, a person commits the crime of trespass when he violates

a trespass warning:

      Whoever . . . having been authorized, licensed, or invited, is warned
      by the owner or lessee of the premises, or by a person authorized by
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      the owner or lessee, to depart and refuses to do so, commits the
      offense of trespass in a structure or conveyance.

Fla. Stat. § 810.08(1). The issuance of a trespass warning as contemplated by this

statute is “a consensual encounter,” meaning that a law enforcement officer may

only issue a verbal warning, or, “if the individual voluntarily decides to remain in

order to receive a written warning,” then the officer also may issue a written

warning. Moore v. State, 200 So. 3d 1290, 1292 (Fla. Dist. Ct. App. 2016). Until

the potential trespasser has received a warning, the law enforcement officer lacks

the legal authority to conduct an investigatory stop or arrest for trespass. Gestewitz

v. State, 34 So. 3d 832, 834 (Fla. Dist. Ct. App. 2010). If the potential trespasser

receives a warning and remains on the property, however, then he becomes an

actual trespasser under the plain language of the statute. See Fla. Stat. § 810.08(1).

Once a law enforcement officer has probable cause to believe that a trespass has

occurred, she may detain the trespasser. See A.D. v. State, 939 So. 2d 1126, 1128

(Fla. Dist. Ct. App. 2006) (holding that an arrest for trespass was proper when the

defendant had received a trespass warning but nonetheless remained on the

property).

      Casey had probable cause to believe that Henning had committed trespass

under Florida law. Slater and Hoffman approached Henning inside the Walmart

and informed him that the manager had requested that he be “trespassed” from the

store. Doc. 91 ¶ 20. The officers then asked Henning to exit the store with them.
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At that point, the officers had provided Henning with a trespass warning.

Nonetheless, undisputed evidence shows that Henning was noncompliant and

attempted to remain in the store. Slater stated in her affidavit that Henning “stood

in place and became argumentative.” Id. She also asserted that it took “several

verbal commands” for Henning to begin walking with the officers to the front of

the store. Id. According to Slater, as she and Hoffman attempted to exit the store

with Henning, he “stopped walking and became argumentative again, advising that

he did not have to listen to us.” Id. ¶ 21. Slater stated that when Henning “became

belligerent,” and failed to comply with verbal commands to leave the store, the

officers took hold of his arms and directed him through the exit.5 Id.

       Henning cites no evidence refuting Slater’s account of his conduct inside the

Walmart. In response to Casey’s motion for summary judgment, Henning could

have submitted an affidavit or declaration explaining that Slater’s account was

inaccurate, but he failed to do so; his only argument in opposition to summary

judgment was that the district court should defer ruling until after it ruled on his

motions to compel. True, Henning testified in general terms during his deposition

that when Slater explained that the store manager wanted him “trespassed” and so

       5
         Henning testified that he was “escorted” through the “whole store,” but it is unclear
whether he meant that the officers walked along with him or that they physically held onto him.
Doc. 95 at 44. He testified that the officers “maybe” took hold of his arms, but did not indicate
whether they did so as soon as they asked him to leave or only as they approached the front door.
Id. Even if Henning’s testimony created a dispute of fact as to the timing of his physical restraint
inside the store, that dispute is immaterial because Henning’s claim for illegal detention is not
based on the officers’ conduct inside the Walmart.
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he had to come with her, “That’s what [he] did.” Doc. 95 at 42. And in response

to defendant’s counsel’s question, “You just left with Deputy Slater?” Henning

answered “[y]es.” Id. at 43. But he never testified about his demeanor in doing so

or denied that before leaving with the officers he attempted to remain in the store

despite their commands. Given the specificity of Slater’s testimony that Henning

stopped walking, refused to exit the store, and had to be physically removed,

Henning’s deposition testimony that he left with the officers—which neither party

disputes—was insufficient to create a genuine dispute of material fact regarding his

conduct.

        After they exited the Walmart, Slater and Hoffman escorted Henning to his

van, where Casey and at least one other deputy were waiting to prepare the written

trespass warning. Based on Slater’s undisputed account of Henning’s conduct

inside the store, Casey had probable cause to believe that Henning had committed

trespass under Florida law. See Fla. Stat. § 810.08(1). Casey’s detention of

Henning was not, therefore, a violation of Henning’s Fourth Amendment rights.

See Bailey, 568 U.S. at 192. Because Henning has failed to show that Casey

violated his constitutional rights, the district court correctly concluded that Casey

is entitled to qualified immunity on Henning’s claim for illegal detention under §

1983.




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B.    Henning’s Claim for False Imprisonment Under Florida Law Fails
      Because His Detention Was Lawful.

      Henning next argues that the district court erred in granting Casey summary

judgment on his claim for false imprisonment. Under Florida law, false

imprisonment is defined as “‘the unlawful restraint of a person against his will, the

gist of which action is the unlawful detention of the plaintiff and the deprivation of

his liberty.’” Escambia Cty. Sch. Bd. v. Bragg, 680 So. 2d 571, 572 (Fla. Dist. Ct.

App. 1996) (quoting Johnson v. Weiner, 19 So. 2d 699, 700 (Fla. 1944)). To prove

false imprisonment under Florida law, Henning must establish: (1) the unlawful

detention and deprivation of his person, (2) against his will, (3) without legal

authority or “color of authority,” and (4) that the detention was unreasonable and

unwarranted under the circumstances. Harder v. Edwards, 174 So. 3d 524, 530

(Fla. Dist. Ct. App. 2015). We agree with the district court that Henning cannot

establish these elements.

      As explained above, Casey’s detention of Henning was supported by

probable cause that Henning had committed the offense of trespass when he failed

to heed Slater’s trespass warning. The existence of probable cause provided Casey

with legal justification for detaining Henning. See Miller v. City of Jacksonville,

603 So. 2d 1310, 1312 (Fla. Dist. Ct. App. 1992) (“Probable cause is an

affirmative defense to a claim of . . . false imprisonment.”) As a result, Henning

cannot show that his detention was “unlawful” or that Casey conducted it “without
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legal authority.” Harder, 174 So. 3d at 530. Henning’s false imprisonment claim

thus fails as a matter of law.6

C.     Henning’s Municipal Liability Claim Fails Because He Has Not Shown
       a Violation of His Constitutional Rights.

       Henning also argues that the district court erred in granting summary

judgment to Brevard County on his claim that it violated § 1983 under a theory of

municipal liability. To establish municipal liability under § 1983, a plaintiff must

show that: (1) his constitutional rights were violated, (2) the municipality had a

custom or policy that constituted deliberate indifference to that constitutional right,

and (3) the policy or custom caused the violation. McDowell v. Brown, 392 F.3d

1283, 1289 (11th Cir. 2004). According to Henning, Brevard County violated

§ 1983 because his detention was caused by (1) its adoption of a policy or practice

of detaining people involuntarily in order to issue trespass warnings, and (2) its

failure to train its law enforcement officers on how to detain individuals without

violating their Fourth Amendment rights.

       Like the district court, we conclude that Brevard County was entitled to

summary judgment on this claim. As discussed above, Henning’s detention

outside of the Walmart was supported by probable cause that he had committed the


       6
          The district court held in the alternative that Casey was entitled to personal immunity on
Henning’s false imprisonment claim because Henning failed to show that Casey acted in bad
faith or with malice. But our conclusion that Henning cannot establish the elements of false
imprisonment means that we need not review this alternative holding.
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offense of trespass under Florida law. This means that his detention was

reasonable and not in violation of his Fourth Amendment rights. See Bailey, 568

U.S. at 192 (explaining that Fourth Amendment seizures are reasonable if

supported by probable cause to believe than the individual has committed a crime).

Without evidence that his constitutional rights were violated, Henning’s § 1983

municipal liability claim against Brevard County fails as a matter of law.

D.    The District Court Did Not Abuse Its Discretion in Declining to Defer
      Ruling on Summary Judgment.

      Henning’s final argument on appeal is that the district court abused its

discretion in declining to defer ruling on Casey’s and Brevard County’s motion for

summary judgment until after it ruled on Henning’s pending motions to compel.

In those motions, Henning asked the district court to order Casey and Brevard

County to respond to a number of his interrogatories and requests for production of

documents. The district court concluded that there was no need to rule on

Henning’s motions to compel before ruling on Casey’s and Brevard County’s

motion for summary judgment because, even if the court compelled responses to

Henning’s discovery requests, those responses would not yield evidence that

Henning’s detention was in violation of his constitutional rights. We agree.

      Many of Henning’s discovery requests sought information unrelated to his

claims. For example, Henning requested all documents relating to instances when

Brevard County law enforcement officers ran his van’s license plate number and
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his driver’s license number. He also requested all documents relating to

complaints received by Brevard County about a suspicious vehicle or white van.

These requests could not have yielded any evidence relevant to Henning’s claims,

so Casey’s and Brevard County’s failure to respond to them did not prejudice

Henning’s ability to defend against summary judgment.

      Henning’s remaining discovery requests related only to his claim for

municipal liability against Brevard County. For example, Henning requested “all

documents relating to Brevard County or its Sheriff’s Department’s policies,

procedures, practices or training relating to the issuance of trespass warnings.”

Doc. 71 at 9. He also asked for a description of “any policies or practices of either

Brevard County or the Brevard County Sheriff that involve the use of trespass

warning detentions as a pre-text for detentions.” Doc. 75 at 5. If Henning had

provided evidence that his Fourth Amendment rights were violated, then Brevard

County’s responses to these discovery requests could have provided evidence

relevant to whether Brevard County caused and was liable for that violation. But

because Henning failed to show a constitutional violation in the first place, his

municipal liability claim would have failed regardless of Brevard County’s

responses to his discovery requests.

      In sum, none of the discovery requests identified in Henning’s motions to

compel could have yielded evidence that would have assisted him in defending


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against summary judgment. As a result, the district court did not abuse its

discretion by declining to rule on those motions before granting summary

judgment to Casey and Brevard County.

                              IV.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of defendants Casey and Brevard County.

      AFFIRMED.




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