Even With Legal Help, Transgender Prisoners Are Never Safe in Prison
Samantha Hill knew it was going to happen.
Her cellmate was leering at her and acting strangely. Although Hill had only been housed with him for a few days at the U.S. penitentiary in Florence, she’d been in prison long enough to recognize the warning signs. But when her cellmate began stuffing rosary beads into the tip of his penis on the night of December 16, 2011, Hill’s nervousness turned to terror. “If you wake it, you’re going to burp it ’til it spits,” the cellmate told her, according to legal documents.
Hill immediately told the guard in charge that she wasn’t safe and needed to be moved out of the cell. The guard, who was female, said there was nowhere else to put her. “She said, ‘You’ll be fine for the night,’” Hill recalls.
Hill is transgender. Although she identifies as a woman, she was born with male genitalia and has done her time behind bars — nearly twenty years in federal prison — in men’s prisons. It hasn’t been easy. She’s a diminutive five-foot-six and feminine, with long, dark hair, and she’s been labeled a “punk” and a “gump” — slang for a small, timid inmate who’s seen by bigger, tougher inmates as sexual prey.
“The whole hierarchy of prisons, I’m way at the bottom of it,” she says in a phone interview. “I’m looked at as just something that’s put here to take care of their needs.”
At Florence, a federal prison located forty miles southwest of Colorado Springs, Hill was living in the special housing unit, or SHU, separated from the general population. Most of the inmates in the SHU are there because they’ve caused some sort of trouble; they’re locked up 23 hours a day, without access to classes, work opportunities or the ability to walk freely around the prison yard. But for Hill and other transgender prisoners, it can be the safest place in an inherently unsafe institution. In the SHU, she has only her cellmate to protect herself from, as opposed to an entire yard of men.
But sometimes even that’s not possible.
Shortly after midnight, Hill’s cellmate violently raped her, according to a lawsuit that Hill filed against the federal Bureau of Prisons in 2013. Red marks bloomed on her hips where he held her down, and the rosary beads tore her anus. Afraid that things would get even worse if she called for help, she sat in her semen-soaked underwear for more than eight hours. When a nurse came by to distribute the prisoners’ morning medications, Hill slipped the nurse a note. It said that she’d been raped and needed to be removed immediately.
“Is this real?” the nurse asked. “This better be real.”
Rape in prison has been all too real for Hill. Over the years, she says, she’s been sexually assaulted numerous times, despite her persistent requests for protection. Following each rape, the Bureau of Prisons has offered an increasingly predictable response: a transfer to another facility — away from the rapist, but inevitably into the hands of another.
In the months before the Colorado rape, Hill decided that she’d had enough. She’d gotten hold of a directory of lawyers from the American Civil Liberties Union and began writing to them. In all, she sent more than 100 handwritten letters.
“I told them I was an LGBT inmate, that I was feminine, that I was [of] small stature,” says Hill during a one-hour interview with Westword. “I’ve been raped and physically assaulted numerous times. I needed legal representation to help me to prevent the assaults from happening. I asked them for justice. I asked them to help me. I asked them to overlook the fact that I’m a prisoner and look to the fact that I’m a human being.”
Transgender-rights issues have been making the news recently, and not just because of Caitlyn Jenner or shows like Transparent and Orange Is the New Black. In April, the U.S. Department of Justice intervened in the court case of a transgender prisoner in Georgia, reminding that state’s department of corrections that it is unconstitutional to withhold hormone treatments and other medical care from transgender prisoners.
Still, most of the attorneys whom Hill contacted declined to take her case because, she says, she couldn’t pay them up front. But one, Denver-based prisoner-rights attorney Elisabeth Owen, wrote back to say that she wanted to learn more and agreed to visit Hill in Florence. She made no promises, but to Hill, it was an important step. After fighting to get out of harm’s way by herself for so long, she felt a little less alone.
Denver-based prisoner-rights attorney Elisabeth Owen represented prisoner Samantha Hill.
The dangers of being a transgender woman in a men’s prison are well documented.
In fact, the nation’s landmark prison-rape court case was filed by a transgender woman. In 1989, Dee Farmer — described in court documents using the outdated term “transsexual” — sued the director of the federal Bureau of Prisons for violating the Eighth Amendment, which prohibits cruel and unusual punishment. Her lawsuit, Farmer v. Brennan, alleged that Bureau officials knew that because of her feminine nature, she was likely to be sexually assaulted if they transferred her to a notoriously violent prison in Indiana. She was transferred anyway, and Farmer claimed that within two weeks, she was beaten and raped by another inmate.
A local court dismissed the lawsuit, but Farmer appealed all the way up to the U.S. Supreme Court. The justices remanded the case, and the lower court held a jury trial. Farmer lost, but many advocates consider her case a victory nonetheless because, in its decision, the Supreme Court held for the first time that it is unconstitutional for prison officials who know about a serious safety risk to deliberately ignore it. Doing so, the justices said, is cruel and unusual punishment.
“Farmer was the first case that said, ‘If you get raped in prison, you can sue the prison for failure to protect you,’” says Chris Daley, deputy executive director of Just Detention International, a Los Angeles-based organization dedicated to ending sexual abuse in detention facilities. “It’s fascinating that this was filed by a transgender woman.”
But the case didn’t improve things for the vast majority of prisoners. In 2001, Human Rights Watch published a report called “No Escape: Male Rape in U.S. Prisons.” It was based on information gathered from more than 200 inmates, and it helped bring the problem of sexual violence in prison to the attention of Congress. The report included graphic excerpts from prisoners’ letters: “Mostly young youthful boys are raped because of their youth and tenderness and smooth skin,” one prisoner wrote, “that in the mind of the one doing the raping, he think of the smooth skin and picture a woman.”
The report acknowledged that LGBT inmates are also at increased risk and cited Farmer’s case as an example. “Certain prisoners are targeted for sexual assault the moment they enter a penal facility: their age, looks, sexual orientation, and other characteristics mark them as candidates for abuse. A clear example is that of Dee Farmer, a young preoperative transsexual with ‘overtly feminine characteristics’ who was placed in regular housing in a maximum-security federal prison.... Unsurprisingly, transsexual prisoners like Dee Farmer, whose case went to the Supreme Court, face unrelenting sexual harassment unless another inmate is protecting them.”
Persuaded by that report and the relentless advocacy of several human-rights organizations, Congress unanimously passed the Prison Rape Elimination Act (PREA) in 2003. The law did several things. Among the most important was that it required the federal government to start collecting statistics on sexual violence in detention facilities. It also called for the creation of national standards for preventing, investigating and prosecuting prison rape.
The federal Bureau of Justice Statistics (BJS) began compiling data right away, but it wasn’t until 2007 that the agency surveyed the inmates themselves. The questions were straightforward: “During the last twelve months, did another inmate use physical force to make you have anal sex?” The survey also asked about oral sex, unwanted touching and coercion. More than 23,000 prisoners took it, and just over 1,100 reported being victimized. Using those numbers, the BJS estimated that 4.5 percent of all state and federal prisoners had been sexually assaulted.
It took seven more years of collecting and parsing data, but the BJS eventually published a report in December 2014 recognizing that the percentage for transgender inmates was much higher. It estimated that 24 percent of transgender inmates had been victimized by other inmates. When assaults by prison staff were added in, that number jumped to 35 percent.
One major reason, advocates say, is housing. “For transgender inmates, the vast majority are housed in the wrong facility,” Daley says. “Even though the agencies don’t recognize transgender inmates like Samantha as women, the inmates certainly do.”
“If you come in and you still have your penis, there’s an assumption that you’re weak and you’re available,” says Brenda Smith, an American University law professor who has studied prisoner rape. The other inmates, she says, “view your gender presentation — you’re presenting yourself as a woman — as an invitation or a provocation.”
In that environment, Hill never stood a chance.
Born in 1971 in Massachusetts to a mother who drank and a father she never met, Hill was given the name Scott. She grew up in the blue-collar city of Worcester with her mother and stepfather, both of whom were violent; according to a psychological assessment included as an exhibit in Hill’s lawsuit, her mother beat her with a billy club, and her stepfather made her kneel on a two-by-four in a corner. “This is how we make men in the military,” he’d reportedly said.
These days, she’s locked up in North Carolina. Even over the phone, it’s clear that Hill is determined to tell her story. She speaks matter-of-factly and doesn’t shy away from uncomfortable details. But she’s also polite, never raising her soft voice and apologizing to the public-information officer in the room with her for using the word “bitch” when describing how she’s treated by other inmates. Despite having been incarcerated all over the country, Hill hasn’t lost her Massachusetts accent. Her speech is full of dropped r’s and a’s that sound like “ah.”
Even as a youngster, she says, she knew “there was something wrong with me.” Hill identified more with girls than boys. She preferred playing with dolls to building tree forts, and when she was with other little girls, she didn’t feel pressure to pretend to be something she wasn’t. As for her stepfather, she says, “I could never be the son that he wanted, because I was girly.”
When Hill was eight, an uncle began molesting her. “I didn’t know I was being sexually assaulted,” Hill says. “He used to tell me that he loved me after he did it.” Hill thought that kind of love was normal. She explains her childhood reasoning like this: “Mommy was dropping me off at his house. Mommy would not drop me off somewhere to hurt me, so she must know what’s going on, and it’s okay.” When Hill tried years later to tell her mother what had happened, her mother didn’t believe her: “She goes, ‘He wouldn’t do that. He’s married and has three children.’ So the whole time, our family was about denial.”
Hill grew into an angry teenager. She began starting brush fires and eventually set fire to her uncle’s house, injuring him and earning herself a juvenile-delinquency record. Around the same time, she came out to her parents. As a teenage boy, she knew she felt an attraction to boys, not girls, so she figured she was gay. When she was sixteen, she sexually assaulted a fourteen-year-old boy. At the time, she says, she didn’t know it was wrong: “I thought it was right. I thought it was love. I didn’t know. I hate rapists. I hate them.”
When her stepfather found out about the assault, he kicked her out of the house. Her mother drove her to downtown Worcester. “My mother basically said, ‘Don’t ever call; don’t ever come home. Your father is the one who makes the rules in the house, and I can’t deal with it,’” Hill recalls.
So Hill lived on the streets. Free of her abusive family, she began dressing as a girl. She also started using drugs to numb her harsh new reality. She turned to petty crime and prostitution to support herself. “I let old men pick me up, as a child, and have their way with me,” she says. “It put $20 or $40 in my pocket for my drugs or to eat food.”
Her criminal record shows a string of arrests for theft and drug possession, and she eventually ended up in federal prison in Pennsylvania in 1998 on a bank-robbery charge. Prison records attached to her lawsuit indicate that she told the Bureau of Prisons right away that she’d been raped before and was afraid it would happen again. The records say she tried to change her housing several times “due to believing [she] may be re-victimized while incarcerated.”
(Prison records refer to Hill as “he”; Westword has chosen to use “she.”)
Hill was placed among the general population, but the other prisoners made her life unbearable. The solicitations for sex got so bad that she “checked in” to the SHU voluntarily in the hopes that she would be safe there. But in March 2001, Hill was raped by her cellmate, according to her lawsuit and to prison records. As a result, she was transferred and then transferred again to a different prison in Pennsylvania. On her third day there, in July 2002, she had to be put in the SHU again.
A report from staff psychologist Dr. John Mitchell notes that Hill “was unable to make it here for even three days without encountering pressure for sex from predatory inmates.”
Mitchell’s report describes Hill as a “physically meek” prisoner with a “known history of homosexuality” and a “significant history of being sexually assaulted.” He writes that when he went to talk to Hill in the SHU, she was upset over having to be placed there. She told him that “[she] does not do well in segregation and tends to become ‘my own worst enemy,’” the report says. “[She] related that [she] typically becomes hopeless, depressed, and questions why [she] should go on in life if [she] cannot successfully adjust to serving out [her] time in prison.”
Mitchell spoke with prison officials, who agreed that Hill should be housed with a cellmate who was also “meek and mild,” his report says. “It must be emphasized how inappropriate inmate Hill is to remain at a penitentiary environment,” Mitchell wrote. Instead, he suggested transferring her to a lower-security facility, where inmates tend to be less violent.
Despite the doctor’s advice, Hill was housed in a string of high-security penitentiaries, where she was physically and sexually assaulted again and again. It happened once in 2002 and again in 2003. Hill briefly got out of prison in 2006, but committed another bank robbery and was sent back that same year. The rapes continued: one in 2009 and three in 2010, according to her lawsuit.
The last assault in 2010 was particularly brutal. Hill was at a penitentiary in California, where prison officials put her in a cell with a Latin Kings gang member. He repeatedly raped her over the course of ten days in October, she says. He warned her that if she told the guards, he’d kill her — and she believed him. When she finally reported him, the BOP decided to transfer her again, this time to Florence. “It was, ‘You get raped at this institution and we’re going to send you out,’” Hill says. “You’re basically passed on. It’s like passing the buck.”
Unfortunately, her cellmate was also being transferred (though to a different prison). The two of them ended up on the same plane, along with several of his fellow gang members. “He’s telling people on the plane that I ratted on him,” Hill says. Some of them were also headed to Colorado. “I haven’t even put my foot on the compound,” she says, “and I’m labeled a snitch.”
Hill arrived at Florence in December 2010. She asked to be housed in a cell by herself, but prison officials denied her request and gave her a cellmate in the SHU. Over and over again, staff assured her that they’d only put her with inmates who posed no safety threat. “I’ve basically become a pain in the ass to staff,” she says. “I fight for my rights and I advocate for myself.”
When other SHU inmates sent her sexually explicit notes, or “kites,” she showed them to the guards. “Cherokee, what’s up. I asked the [corrections officer] about moves, right? He said to let him know who’s going to move where and he will get the moves done,” one kite attached to her lawsuit says (Hill is Cherokee). “I told him you can move in with me.... Man, I want you for my celly. I can’t wait to have your hot ass.”
The note gets more explicit from there.
Hill didn’t end up with that cellmate. Instead, she ended up with the one with the rosary beads, the one who violently raped her just after midnight on December 17, 2011.
After Hill passed the note to the nurse later that morning, the guards removed her from her cell and took her to a room to be interviewed. Her clothes were still streaked with her cellmate’s semen and her teeth were chattering. “What, are you cold?” one guard asked her, according to the lawsuit. “No,” Hill said. “Don’t you understand how I feel right now?” The guard told her he didn’t. “I’ve never had a dick in my ass,” he said.
Hill was taken to the local hospital, where nurses did a rape kit, catalogued her bruises and noted the tears to her anus. Prison staff investigated, but, as happened after all of Hill’s previous rapes, their investigation wound up “inconclusive.”
“He was never tried for it. He’s out on the street,” Hill says about her cellmate. “That’s what it is with the BOP. To minimize damage, they will just say it’s inconclusive.”
A few weeks later, Hill was transferred again. But by then, she had a lawyer.
Commercial litigator Sarah Hartley helped fight for Samantha Hill’s Eighth Amendment rights.
Elisabeth Owen had met Hill before the rape. After agreeing to come to Florence, she’d sat with Hill, but she’d told her that she wasn’t sure what she could do. Nothing had happened yet in Colorado, and it can be difficult to file a lawsuit based on the possibility of future harm. “I was trying to figure out what to do,” Owen says, “and she was raped during that period.”
Hill’s situation was now ripe for a lawsuit, and Owen felt it was a strong case: The Bureau of Prisons had repeatedly identified Hill as an at-risk inmate and at the same time denied her requests for more protection.
Owen has been representing prisoners since she was a law student at the University of Denver. After she graduated in 2010, she founded the Colorado Prison Law Project in order to continue that work. She’s now the sole attorney for a new project called the Prisoners’ Justice League of Colorado. The superhero vibe is intentional: It’s a mission-oriented law firm that aims to change the way people are incarcerated in this state. An aggressive advocate for prisoner rights, Owen provides free legal representation and also does work on a sliding-scale basis.
But she can’t always do it alone. For Hill’s case, she approached a big-name Denver law firm for some pro bono help. That request eventually led her to Sarah Hartley, a commercial litigator who usually focuses on contract disputes and antitrust violations but felt that this case was meaningful. In September 2014, the two attorneys filed a detailed amended complaint in U.S. District Court in Denver. It alleged that the BOP had violated Hill’s Eighth Amendment rights.
“Despite her frequent pleas to the BOP for placement in a single cell or in a facility where she is not facing the risk of assault, and despite her exhaustion of administrative remedies to put all levels of the BOP on notice of her serious concerns regarding her personal safety, the BOP continues to house Ms. Hill in penitentiaries with violent criminals who target her as ‘prey,’” it said.
The lawsuit also alleged that the BOP was failing to provide hormone therapy for Hill’s gender dysphoria, which BOP doctors had diagnosed back in 2005. The agency wasn’t providing talk therapy for Hill’s post-traumatic stress disorder or rape-trauma syndrome, either, the lawsuit said, nor was it following the standards set by the 2003 Prison Rape Elimination Act.
Those standards are meant to protect all inmates, but they pay special attention to LGBT ones. Adopted in 2012 after nine years of hearings, drafts and blown deadlines, they cover everything from how to screen new inmates to determine who might be a victim and who might be a perpetrator, to a requirement to provide mental-health treatment for both after an assault has taken place. There are separate standards for prisons, lockups, community corrections and juvenile facilities, but each is required to have a zero-tolerance policy on rape.
Smith, the American University law professor, served on the nine-member commission that wrote the standards. “The commission was pretty clear from the beginning that LGBT prisoners are particularly vulnerable to abuse,” she says.
And it’s not just because of other inmates, Smith says. Staff can also be to blame. “There’s a saying in corrections that an inmate is an inmate is an inmate,” she says. “Corrections doesn’t deal well with individuality or people who are different. Transgender inmates represent difference magnified.”
The Prison Rape Elimination Act standards require that housing decisions for transgender inmates be made on a case-by-case basis, taking the inmates’ “own views” into account. In an attempt to stop the nearly universal practice of housing prisoners based on their genitalia, the standards prohibit strip searches “for the sole purpose of determining inmates’ genital status.” They also require that prison staff reassess transgender prisoners’ housing assignments twice a year “to review any threats to safety.”
Advocates hailed the standards as progressive, but to prison officials, they represented a big shift. “If you want to see a corrections professional’s head explode, have them understand they need to take an inmate’s view into account,” Smith says.
As a federal agency, the BOP must follow the PREA standards. But Congress provided the agency some protection: PREA does not create a “private right of action,” which means that individual prisoners can’t sue the Bureau for violating the standards.
“It’s the law that they have to follow the PREA standards, but there’s not really anything you can do about it,” Owen says. “Certainly, we can clamor for them to do better. But I can’t sue if they just violate one of their standards unless it rises to the level of an Eighth Amendment violation.”
Owen and Hartley believed that Hill’s case did. But the BOP approached them and asked to negotiate a settlement. The decision was ultimately up to Hill, and Owen can’t disclose the reasons that she chose to settle. In general, Owen says, civil lawsuits can take a long time to get to trial, and a trial may require a defendant to relive painful trauma.
The settlement agreement was finalized in May. It requires that Hill be housed “with a pre-screened cellmate” and that her opinions on who that cellmate is be given “serious consideration.” The BOP also agreed to re-evaluate her cellmate assignment within seven days if she notifies prison officials that her cellmate is threatening her.
The BOP did not agree to house her in a cell by herself, nor did it agree to move her to a women’s prison, both of which the lawyers asked for. Instead, the settlement agreement stipulates that every six months, the BOP will re-evaluate whether to house her at a men’s prison. It does not say what that evaluation will be based on or what it will take for the BOP to change its mind.
“It really is about the genitalia,” Owen says. She explains that “we ended up with the settlement agreement language…in an effort to get the case resolved.”
Much of that language is straight out of the PREA standards. It’s unfortunate, Owen says, that it often takes a lawsuit to get prisons to follow their own rules.
“Part of the reason for that is because there is no accountability,” she says. “I see it every day: They violate the law, knowingly violate the law, and say to people, ‘What are you going to do about it?’ So we get to this point where you have to codify things that are already in the law.”
Bureau of Prisons spokesman Ed Ross declined to discuss Hill’s case. He says that the BOP does not “provide information regarding custody and care matters related to any specific inmate.” The Colorado U.S. District Attorney’s Office, which represented the BOP in the case, also declined to comment.
Ross did answer some general questions in writing, however. The BOP has a national office, he says, “that coordinates PREA mandates and ensures compliance.”
Transgender inmates “are assigned to male or female facilities based on a thorough review of all the available information” by a multidisciplinary team, he says.
The agency “does not have a specific policy requiring single-celling transgender inmates,” he adds. “This would likely be discouraged, as transgender inmates should be treated as all other inmates and be part of the prison community.”
Being part of the prison community has proven to be nearly impossible for Hill. She landed behind bars well before Caitlyn Jenner graced the cover of Vanity Fair and well before the advent of Orange Is the New Black, a show that takes place in a women’s prison and depicts a transgender prisoner played by Laverne Cox, a real-life transgender woman.
However, the recent swell of transgender awareness does appear to be infiltrating the world of corrections, advocates say. The federal Department of Justice’s statement of interest in the case of Ashley Diamond, a transgender prisoner suing the Georgia Department of Corrections, is proof. Diamond’s claims are familiar: She says prison officials did not protect her from being raped in men’s prisons and denied her access to hormone treatments. The DOJ’s statement addressed the latter claim only. “Failure to provide individualized and appropriate medical care for inmates suffering from gender dysphoria violates the Eighth Amendment’s prohibition on cruel and unusual punishment,” it says.
But that increased understanding hasn’t alleviated the day-to-day horror faced by prisoners like Hill and Diamond. Last month, Diamond made headlines again when her attorneys petitioned the court to move her to a different prison because she was raped by her cellmate.
So they continue to fight. In some ways, Hill’s lawsuit has improved her life. Last year, at the same time that Hill’s lawyers started negotiating with the BOP to settle her case, the BOP began providing her with hormone treatments for the first time. She’d tried to get them in Boston in 2006 after she was released from prison, but she says the community health clinic told her she didn’t qualify for free care. That was part of the reason she robbed another bank. “That’s when I gave up,” Hill says. “I was like, ‘That’s it. I’m going back in.’”
The settlement agreement stipulates that the BOP continue Hill’s hormone-therapy treatments. It also requires that Hill’s doctors evaluate her every six months to determine if additional treatments, including sex-reassignment surgery, “are clinically indicated.”
Hill is currently housed at FCI Butner, a medium-security prison in North Carolina. Even though it’s a men’s facility, the settlement agreement ensures that she can buy female commissary items such as bras, panties, ladies’ razors and women’s deodorant. It also says that the BOP won’t discipline her for dressing like a woman and wearing homemade makeup.
In addition, it requires the BOP to provide her with psychological treatment for her gender dysphoria, PTSD and rape-trauma syndrome, including biweekly talk-therapy sessions. Lastly, the Bureau agreed to pay her a sum of $70,000 if she agreed to drop her claims.
In all honesty, Hill says, that’s the part that will most likely change her life. She’s due to be released from prison in 2018, and she plans to use the money to pay for sex-reassignment surgery. In the meantime, she’s grateful for the hormone therapy, which is helping to prepare her. But she adds that she’s frustrated because the BOP recently lowered her dose.
She’s also frustrated by what she sees as a continued flouting of the PREA rules and the terms of her settlement agreement. “I’m supposed to be addressed as Samantha Hill,” she says. “They’re still calling me Mr. Hill and Scott Hill. One officer says, ‘You still have a pecker, right? As long as you still have a pecker, you’re a guy.’”
What’s more, Hill is back in the SHU. This time, she was put there as punishment. Although she’s in a cell by herself, which she says is good, she misses having access to the work assignments and classes that are only available to general-population inmates. A high-school dropout, Hill says she was just one course away from earning her GED when she landed back in solitary confinement a couple of months ago.
The reason she’s there is that her cellmate, another transgender prisoner, filed a complaint saying that Hill was sexually harassing and groping her. Hill says it’s not true. The two had been having problems for months, and Hill says her cellmate made several threats, which she reported to prison staff. But when she asked for a different cellmate, she and Owen say, prison officials told her they had just three others available. All of them were sex offenders, Hill claims.
So Hill stayed with her cellmate until the cellmate complained about her and Hill was moved to the SHU. Prison officials investigated, but the results were inconclusive, she says. Now, Hill has been told that she’s going to be transferred again. She doesn’t know where she’ll end up, but she’s afraid that all of the concessions she won in the lawsuit will go away. The settlement agreement requires that she stay at Butner until she’s released, but it also gives the BOP several outs, including that the agency can transfer her if she engages in misconduct that warrants it.
Hill says the BOP has broken her. “They have done what the Marines do to soldiers: They tear them down and rebuild them up,” she says. “The BOP has broke me emotionally and rebuilt me to where I never, ever want to set foot in prison again. I don’t care what I have to do stay out of prison. I’m going to live a square life, a simple life. I don’t ever want to come back.”
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