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McKnight v. Vasile

United States District Court, W.D. New York

March 30, 2017

G. VASILE and M. NICHOLLS, Defendants.

          DECISION & ORDER

          MARIAN W. PAYSON United States Magistrate Judge


         Plaintiff Miriam McKnight filed the pending lawsuit against the City of Rochester and three of its police officers asserting constitutional and state law claims arising from her arrest on July 3, 2010. (Docket # 1). Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Docket # 11).

         Summary judgment was granted in favor of the City and defendant Laura Grande dismissing the claims against them. (Docket ## 56, 58). Two of the state law claims against defendants Gregory Vasile and Michael Nicholls - those for trespass and malicious prosecution - were also dismissed before trial. (Docket # 56). As a result of those decisions, the claims remaining for determination are claims against Vasile and Nicholls under 42 U.S.C. § 1983 for excessive use of force, and claims under New York State law for false arrest, false imprisonment, battery, and abuse of process. (Docket ## 56; 76 at 5-7). McKnight seeks both compensatory and punitive damages. (Docket ## 1, 56).

         A bench trial was conducted before this Court on January 11-13 and February 26, 2016.[1] (Docket ## 72-78, 80, 82). McKnight testified on her own behalf and offered testimony from her son Javion Jones and two expert witnesses, James Williams, PhD, and Charles Ewing, PhD. The defense called Officer Vasile, Sergeant Nicholls, and Sergeant Andrew McPherson as witnesses. Both parties also introduced into evidence portions of deposition testimony from Lieutenant Laura Grande, who was a defendant in the action at the time of her testimony. (Docket # 81). Following trial, both parties submitted proposed findings of fact and conclusions of law. (Docket ## 83-85).

         Based upon the findings of fact set forth below, and for the reasons explained more fully herein, judgment is granted in favor of McKnight on her claims against Vasile for false arrest, false imprisonment, and battery. Judgment is granted in favor of defendants on the remaining claims.


          A. McKnight's Call to 911

          McKnight testified that she spent much of the afternoon of July 3, 2010, on the front porch of her home at 232 Pierpont Street. (Tr. 38-39, 44-45). She owned the house and was living there at the time with her husband, Kelly, and her sons, Malik, Javion and Naseem. (Tr. 38-39). From her porch, she observed and heard a party that was taking place in the backyard of her neighbor's house at 234 Pierpont Street, which was situated directly north of her house. (Tr. 45). According to McKnight, when she first became aware of the party at about 3:00 p.m., approximately 40 to 50 people were in attendance, and the party was noisy and involved music and a barbeque. (Tr. 45, 171, 172). She did not know any of the partygoers other than her neighbor and did not attend the party. (Tr. 172, 173). McKnight recalled that the party began in the afternoon and began to breakup about 10:00 or 11:00 p.m. (Tr. 45, 172, 173).

         Photographs and testimony establish that McKnight's front porch is on the northwest corner of her house near the property line between 232 and 234. (Tr. 53-57; P. Ex. 16; D. Exs. 414, 415). A fence runs along her property line between the two houses. (Tr. 179; D. Ex. 415). It runs parallel to the northern facade of McKnight's house from a point several feet east of the northwest corner of the house and into her backyard. (D. Ex. 415).

         At approximately 11:00 p.m., McKnight was on her porch and observed an argument between two women in front of 234 Pierpont. (Tr. 45-46, 175, 176, 209). She testified that a man emerged from the backyard of 234, walked along her fence line toward Pierpont Street, and tried to escort one of the two women across Pierpont and to the north. (Tr. 46, 175, 177). The woman, who had had too much to drink, was screaming at him to take his hands off her and to let her go. (Tr. 46). At that point, McKnight observed the other woman run up, and a physical fight ensued between the two women in the middle of Pierpont Street in front of 236, the second house to the north of McKnight's house. (Tr. 47, 178-79, 209). McKnight testified that approximately ten people ran along her fence line to the area where the fight was occurring in an apparent attempt to break it up. (Tr. 47, 179).

         At that point, according to McKnight, she told her sons to go inside the house, and she herself went inside briefly. (Tr. 59, 180). When she reemerged on the porch, she saw the two women fighting and heard someone say that someone had been stabbed. (Tr. 180-81). McKnight went back inside her house and called 911. (Tr. 181).

         Identifying herself as Olivia Coles, McKnight reported to the 911 operator that two females were fighting and that there was a possible stabbing. (Tr. 62-63; P. Ex. 12). She testified that she provided her middle name (Olivia), which she “go[es] by, ” and her maiden name (Coles) because she “wanted to report it, but not really be involved.” (Tr. 40, 63, 183). Records reflect that her call was made at 11:14 p.m. and that her address was identified as 232 Pierpont Street. (Tr. 62; P. Ex. 12). Other calls about the incident were also received by 911 immediately after McKnight's call and identified 236 Pierpont Street and the area of Pierpont and Bryan Streets (across the street from 234 Pierpont Street) as the vicinity of the stabbing. (P. Ex. 12; Tr. 271, 419).

         McKnight testified that she remained inside her house until the police arrived. (Tr. 63, 185). When the police arrived, she went back outside, but before she did, she retrieved her cellphone and turned on the voice recorder. (Tr. 64, 185).

         B. The Arrival on Scene of Officer Vasile and Sergeant Nicholls

          Gregory Vasile, an officer with the Rochester Police Department (“RPD”) since 2008, was dispatched to the area of Pierpont Street and Bryan Street at 11:15 p.m. on July 3, 2010. (Tr. 262, 270; P. Ex. 12). He testified that he was dispatched in response to a call reporting a stabbing. (Tr. 270). As he was driving to the area, he overheard more calls reporting fighting, noise, and chaos in the vicinity. (Tr. 274-75). Those dispatches reported that two shots had been overheard and that a victim was on the ground. (Tr. 274-75).

         Vasile recalled that he was the first officer to arrive on scene at 234 Pierpont Street. (Tr. 272). He described the scene upon his arrival as “noisy” and “chaotic” and testified that he saw between fifteen to twenty people in the vicinity of two to three houses. (Tr. 270, 287). He observed a “crowd” on the stairs in front of 234 on either side of the sidewalk. (Tr. 277-78; D. Ex. 415). According to Vasile, that crowd was closer to 232 than it was to 236. (Tr. 277-78). Shortly after Vasile arrived, his supervisor Sergeant Michael Nicholls arrived on scene. (Tr. 275-76, 403).

         Sergeant Nicholls, who had been employed by RPD since 1995, also responded to the call about a possible stabbing. (Tr. 398, 410). Records demonstrate that at 11:19 p.m. he called out that he was responding. (Tr. 412). He testified that the dispatcher identified the address as 234 Pierpont Street. (Tr. 412). On his drive to 234, he learned through dispatches that other calls had reported that shots had been fired and that another victim had been located approximately one block from 234 Pierpont Street. (Tr. 417-19).

         When Nicholls arrived at the scene, one or two patrol cars were already there; he parked in front of 234. (Tr. 416, 420). He testified that the scene was chaotic and approximately fifteen to twenty people were spread out between the houses at 232 and 234. (Tr. 419-21, 430). He observed an apparent victim on the ground in the area near the steps above the sidewalk in front of 234. (Tr. 417, 419, 421). Nicholls approached the victim and attempted to speak to him, but the victim declined to respond to him. (Tr. 422). Nicholls described the scene as “volatile” and observed individuals yelling and screaming. (Tr. 424). At 11:22 p.m., Nicholls requested that more patrol cars be dispatched to the scene. (Tr. 415; P. Ex. 12).

         Nicholls testified that sometime between 11:19 and 11:22 p.m., he directed Officer Vasile to start securing the scene. (Tr. 425). As he explained, RPD General Order 401 provides that upon arrival at a crime scene, police officers should “provide aid and comfort to the victim(s), observe all conditions, events, and remarks and secure the scene to maintain and protect physical evidence, utilizing yellow crime scene tape, as applicable.” (Tr. 426-27; D. Ex. 410 at 2). Nicholls identified several purposes served by using crime scene tape to secure a scene:

To protect evidence, to prevent any egress or exit from the scene. . . . [S]ometimes we'll have people inside of the scene. It generally calms things down and people start to understand that we're there and starting to take control of what's going on. The initial scene is set up to preserve the initial area where we believe that the stabbing may have occurred. We reassess that later to determine whether or not to expand it.

(Tr. 427). Nicholls explained that as a matter of practice crime scene tape is affixed to “one house at a minimum to either side of where we think the scene is.” (Tr. 457). In response to Nicholls's direction, Vasile walked to his patrol car to retrieve his crime scene tape. (Tr. 280-81, 429). Nichols returned to the area where the victim was on the ground to question the individuals present about what had happened. (Tr. 429).

         C. McKnight's Encounter with Officer Vasile

          After McKnight had called 911 and returned to her porch, at some point she saw a victim with ambulance personnel near the individual. (Tr. 59, 64, 186). She testified that the victim was in the driveway between 234 and 236. (Tr. 59). She asked a man who was standing nearby, north of her porch close to 234, whether the victim was alive. (Tr. 64). The man responded affirmatively. (Tr. 65).

         As McKnight was watching the scene, she noticed a group of teenagers come onto her yard in front of her house. (Tr. 65, 187-88). She testified that they were located near the southwest corner of her property near her driveway, which was on the south side of her property abutting the property at 230 Pierpont Street. (Tr. 65). McKnight called to them twice to tell them to get out of her yard. (Tr. 78, 188, 204). Because they did not respond, she got off her porch and walked toward them and told them again they had to leave her yard. (Tr. 78, 188, 204). She testified that the group began to walk off, and she turned back toward her house. (Tr. 188-89, 204-05). At that point she noticed Officer Vasile for the first time. (Tr. 65, 205).

         According to McKnight, Vasile was standing on the ground at the north corner of the steps leading to her front porch affixing yellow tape to her porch railing. (Tr. 66, 79, 85, 90, 216; P. Ex. 8A). McKnight testified that he was tying the tape to the knob at the top of the first spindle of the railing at the bottom of the stairs. (Tr. 206, 245; P. Ex. 8A).

         Vasile, who had retrieved the crime scene tape, was tying it to McKnight's porch railing when he first encountered McKnight. (Tr. 280-89). He testified that because the crime had occurred at 234 Pierpont Street and he had been trained to “start bigger and then close it in” when securing a crime scene, he chose 232 as a starting point. (Tr. 281). Specifically, he stated:

232 [was] one house south of where it appeared that the crime occurred at 234 and that's the nearest place for me to logically attach the crime scene tape.

(Tr. 281). Vasile had intended to run the tape west from McKnight's porch railing to a large tree in the apron near the bottom of the stairs in front of 234 and then north to another spot likely “to include 236.” (Tr. 283-84). According to Vasile, the presence of a substantial number of people in the vicinity created an urgent need to put up the crime scene tape. (Tr. 293). He explained that the purpose of putting up tape was twofold: to keep people out of the crime scene and to assist technicians to locate evidence. (Tr. 287-88).

         McKnight testified that as she was walking toward her porch stairs, she said to Officer Vasile, “Excuse me, Officer. You cannot put that yellow tape in my yard.” (Tr. 66, 205). She explained that she did not want the tape on her property because of its negative connotations. (Tr. 79). He said, “Yes, I can, ” and she responded, “You can't, ” and told him that “[t]his is not a crime scene” and “[t]he crime didn't happen here.” (Tr. 66, 207-08). McKnight testified that she pointed to the middle of the street where the victim was located and told Vasile that the crime had happened “over there.” (Tr. 66, 208-09, 211). McKnight testified that she was walking up the south side of the stairs as she was speaking to the officer. (Tr. 87, 206-07, 216; P. Ex. 8A). Vasile responded that he could put up the tape. (Tr. 66). As McKnight approached or reached the top of the porch stairs, she replied, “It's not going to be here all night.” (Tr. 66-67, 87-89, 208, 212, 216, 218; P. Ex. 8A). McKnight testified that she did not mean that she intended to remove it, but rather that the kids who were outside would likely tear it down. (Tr. 67, 88). According to McKnight, Vasile then came running up the stairs behind her, declared, “I'm tired of this shit, ” and ordered her to put her hands behind her back and grabbed her left arm. (Tr. 67, 89-90, 214, 218). McKnight testified that she never gestured to the tape, touched it, or tried to remove it. (Tr. 151, 217). Vasile acknowledged that the tape rips easily. (Tr. 362).

         Vasile's testimony of the verbal exchange is similar to McKnight's in many material respects except concerning his stated conclusions as to her intent to rip down the tape. Vasile testified that as he was putting up the tape he noticed McKnight standing nearby. (Tr. 291). He heard her say to him that he could not put up the tape. (Tr. 295, 297-98). At the time, he was on the ground near the front bushes and porch railing and she was on the walkway near the porch stairs. (Tr. 294, 296, 300). Vasile replied, “[Y]es I can . . . it's a crime scene.” (Tr. 295, 297-98). McKnight responded that it was not a crime scene and told him that the crime happened “over there, ” pointing in the direction of 234. (Tr. 299). Vasile stated that he said he did not care, to which she replied “something to the effect of ‘This isn't going to stay up here all night.'” (Tr. 298-99). Vasile testified that when McKnight made that statement, she was “motioning toward [the tape], moving toward it.” (Tr. 301). Vasile was asked what movement McKnight made toward the tape, and he testified, “She was extending her arm in a reaching manner.” (Tr. 301). Vasile admitted that she made no other movements toward the tape and did not rip it. (Tr. 302). He testified that he did not know if she touched it. (Tr. 302).

         As McKnight walked up the stairs toward her front door, Vasile told her he had had enough of her “shit, ” to turn around and put her hands behind her back. (Tr. 302, 304). Vasile testified that he believed McKnight was going to rip down the tape and decided to arrest her for interfering with his performance of his official duties. (Tr. 302-03). According to Vasile, McKnight ignored his order to put her hands behind her back and interpreted her actions as an “attempt[] to flee inside of her house.” (Tr. 305, 309). He grabbed her arm. (Tr. 312, 315).

         Vasile testified that he believed that he had told her several times to go inside her house, although he acknowledged that he did not hear that on the cellphone recording of the encounter. (Tr. 299, 307). McKnight testified that no officer ever ordered her to go inside her house. (Tr. 80).

         The recording of the encounter made from McKnight's cellphone captures the following exchange, which McKnight testified accurately recorded her statements to the teenagers and her verbal interaction with Vasile:[2]

McKnight: Y'all gonna have to get off my um yard.
McKnight: Y'all gonna have to get out my yard.
McKnight: Excuse me.
McKnight: Y'all gonna have to get out my yard.
McKnight: Ah, Officer, you cannot put that yellow tape in my yard.
Officer: Ah, yeah I can.
McKnight: Why?
Officer: Because it's a crime scene, that's why.
McKnight: This is not a crime scene.
Officer: There's a victim over there.
McKnight: It didn't happen here. It happen there.
Officer: I don't care.
McKnight: Well, this is not gonna stay here all night.
Officer: Turn around and put your hands behind your back.
I've had enough of this shit.
McKnight: I don't, I live here. What are you doing to me?
McKnight: Ah, get him.
Officer: Put your hands behind your back.
Javion: Ma Ma.
McKnight: Kelly. Kelly. Kelly. Kelly. Kelly.

(Tr. 70; P. Ex. 1; see also P. Ex. 2). The recording reveals that approximately thirteen seconds elapsed from McKnight's first statement to Vasile about the tape and his direction to her to put her hands behind her back. (P. Ex. 1). The recording also reveals that Vasile's direction to put her hands behind her back occurred instantaneously in response to McKnight's statement that the tape would not stay there all night. (P. Ex. 1). Another order to put her hands behind her back was issued four or five seconds after the first. (P. Ex. 1). It is not entirely clear which officer issued the verbal order, although the timing suggests that Vasile did.

         McKnight testified that the recording refreshed her recollection that Vasile did not explicitly tell her she was under arrest, as she had testified at her deposition. (Tr. 92, 152, 156-58, 219). Vasile likewise testified that, contrary to his testimony on direct examination, the recording does not reflect that he told McKnight that she was under arrest. (Tr. 358). The recording also does not reflect that Vasile told McKnight, as he had testified during his deposition, that the tape would be removed after the investigation. (Tr. 371). He further testified that at the time of his deposition he did not know that he had stated he had had enough of “this shit.” (Tr. 377).

         D. McKnight's Arrest

         McKnight acknowledged that she understood that Vasile was attempting to arrest her. (Tr. 221). She testified that Vasile grabbed her left arm and tried to force her arms behind her back; she attempted to turn left toward him to ask him why he was arresting her. (Tr. 67, 92, 220, 246, 248). McKnight tried to explain to him that she lived there. (Tr. 91). She acknowledged that she attempted to get inside her front door rather than go with Vasile. (Tr. 220-23). McKnight saw her son Javion in the doorway and yelled, “Get him, ” referring to her husband who was asleep inside the house, and then screamed for him by calling his name, Kelly. (Tr. 67, 73, 225; P. Exs. 1, 2).

         McKnight testified that the more she turned toward Vasile, the more he turned behind her. (Tr. 222). According to her, Vasile threw her against the front door and the front facade of the house. (Tr. 67, 68). McKnight asked Vasile why he was hurting her, and he did not respond. (Tr. 67). Another police officer appeared and sprayed her with pepper spray[3] in her face. (Tr. 68, 74, 93). McKnight testified that the second officer did not give her any commands or say anything to her before spraying her. (Tr. 152-53, 226). At that point, she testified, she “just fell out . . . fell down.” (Tr. 68, 74, 95, 230). She apparently dropped her cellphone on the porch. (Tr. 74, 228). The officers handcuffed her, dragged her down the stairs and to Vasile's patrol car, and “threw” her in the back seat. (Tr. 68, 95, 227). She testified that she did not know how long she was in the car, although it felt like “forever.” (Tr. 96).

         Vasile testified that McKnight ignored his commands to put her hands behind her back and “began to move quickly up her stairs toward her porch . . . more specifically towards the front door of her house.” (Tr. 309, 312). He grabbed her right arm at the wrist area, but her arm slipped out of his grasp. (Tr. 312, 316). According to Vasile, her arm felt as if it had some “slippery” substance on it.[4] (Tr. 316). She was holding onto the inside of the doorway with her left arm. (Tr. 316, 318). Vasile attempted to employ a technique known as a “straight arm bar” to combat her resistance. (Tr. 317, 321). He explained the technique:

I . . . take my right arm and grab the subject's right wrist and then take my left hand and roll it around the subject's left triceps for counterpressure to either bring [the] subject to the ground or up against something in order to be able to secure that arm and handcuff it.

(Tr. 317). Vasile testified that his attempt was not successful because although he was able to grab her right arm, he was not able to grab her left arm because she had it hooked inside the doorway. (Tr. 317, 321). Vasile testified that he tried the technique a second time using the house as counterpressure, and his second attempt succeeded in permitting him to secure her right arm behind her back.[5]

         While Vasile was struggling with McKnight at the doorway, Sergeant Nicholls ascended the porch. (Tr. 324). Vasile testified that he did not hear Nicholls say anything. (Tr. 324). At the time he noticed Nicholls, Vasile testified, “I had her right arm secured at that point, and had her against the house and was attempting to secure her left arm I guess, but never really got that far.” (Tr. 324). Although he did not see Nicholls deploy his pepper spray, he recognized that pepper spray had been used because he could taste it. (Tr. 326). McKnight released the door, Nicholls took control of her left arm, and she was handcuffed. (Tr. 321, 326).

         Vasile testified that he assumed that the pepper spray was the reason she released the door and allowed the handcuffing. (Tr. 326). According to Vasile, he did not take McKnight to the ground, and she did not fall on the ground. (Tr. 322, 328-29). He escorted her to the patrol car. (Tr. 326, 330). Vasile testified that McKnight probably could not see her way to the car because of the pepper spray. (Tr. 330). Vasile acknowledged that McKnight never struck him. (Tr. 319).

         Nicholls also testified regarding his involvement in McKnight's arrest. He explained that after he observed Vasile go to the car to retrieve the crime scene tape, the next time he noticed Vasile was with McKnight on the porch at 232 Pierpont Street. (Tr. 431). From a distance of approximately twenty to thirty feet, he observed that Vasile was trying to take McKnight into custody. (Tr. 431-32). He described that Vasile was trying to put McKnight's hands behind her back, but she was pulling away from him and moving toward the house. (Tr. 433-34). He recalled that they were either on an upper step of the porch stairs or on the porch itself. (Tr. 432-33). Although he did not know why Vasile was trying to arrest McKnight, he recognized from the way Vasile was handling McKnight's arm that that was what Vasile was trying to do. (Tr. 434-35).

         Nicholls went to the porch to assist Vasile. (Tr. 435). When he got to the porch, he observed that McKnight had her left arm “hooked” to the south side of the door frame and was trying to pull herself away from Vasile and into the house. (Tr. 436-38). He recalled that the front door was open and that he did not see anyone else. (Tr. 469). Nicholls testified that he commanded McKnight to put her hands behind her back. (Tr. 439, 441). McKnight did not comply. (Tr. 446). Nicholls successfully unhooked her arm from the doorway, but lost control of her arm when she pulled it away and it slipped out of his grip due to the presence of some lotion or grease on her skin. (Tr. 441-44). McKnight then turned her body toward him, at which point Nicholls sprayed a burst of OC at McKnight. (Tr. 444). According to Nicholls, McKnight ceased resisting and became compliant; her face went down, Nicholls brought her left arm behind her back, and she was handcuffed. (Tr. 450). She never fell to the ground. (Tr. 450-51).

         Nicholls testified that the reason he used pepper spray was because their efforts to gain McKnight's compliance through verbal commands and joint manipulation had not succeeded. (Tr. 446). He was concerned about both the possibility of what she might do to him as she turned toward him, such as a punch, and the possibility of her retreat inside a house where weapons and other persons could be present. (Tr. 444-46, 449). For these safety reasons, Nicholls decided to use the pepper spray. (Tr. 445-46). Based upon his training and experience, Nicholls believed that use of pepper spray was an effective technique to induce compliance without risk of permanent injury. (Tr. 448).

         Nicholls testified that he had no further interaction with McKnight. (Tr. 457). He also explained that because he had used force on McKnight, RPD policy required him to request that his supervisory lieutenant respond to the scene. (Tr. 453). At 11:24 p.m., he requested that Lieutenant Grande respond, which she did. (Tr. 452). Nicholls testified that he did not observe that McKnight had any injuries to her arm. (Tr. 475).

         After listening to the cellphone recording, Nicholls acknowledged that he did not hear his voice on the recording. (Tr. 440, 465). He also acknowledged that he did not observe McKnight engage in any acts that constituted obstruction of governmental administration. (Tr. 467).

         According to Vasile, McKnight was alone in his patrol car for about five minutes after he placed her there. (Tr. 341). At 11:48 p.m., Vasile called in that he had an individual in custody, referring to McKnight. (Tr. 343; P. Ex. 12). According to the job card, he departed 232 Pierpont Street at 11:53 p.m. and drove to the Public Safety Building, arriving there at 12:01 a.m. (Tr. 341, 344, 346). He testified that he drove with the air conditioning on. (Tr. 341). Vasile took McKnight to the eye wash station as soon as they arrived and then to booking. (Tr. 97, 100, 340-41). Vasile testified that he did not observe that she was bleeding. (Tr. 348). He acknowledged that the booking photographs show that her eyes are closed, likely as a result of the pepper spray. (Tr. 375-76; see P. Ex. 9).

         E. The Criminal Charges Against McKnight

         Vasile signed two complaints “upon personal knowledge” on July 3, 2010, charging McKnight with criminal misdemeanor offenses arising from his encounter with her that night: the first charging her with obstructing governmental administration in the second degree, in violation of New York State Penal Law § 195.05; and, the second charging her with resisting arrest, in violation of Penal Law § 205.30. (Tr. 337-38; P. Ex. 10). The complaint charging her with obstructing governmental administration alleges that on or about July 3, 2010, at 11:15 p.m., at 232 Pierpont Street, McKnight:

Interfere[d] with [Vasile] while [Vasile] was attempting to put up crime scene tape to secure a crime scene where a stabbing occurred. Further, [McKnight] refused to go inside her house and remove herself from the crime scene. [McKnight] was yelling at [Vasile] not to put crime scene tape up in her yard. [McKnight's] actions prevented [Vasile] from securing a crime scene.

(P. Ex. 10). The complaint charging her with resisting arrest alleges that at the same time and place McKnight:

Pull[ed] away from [Vasile] when [Vasile] attempted to take her into custody for an arrest. Further, once [McKnight] pulled away from [Vasile] she did attempt to flee inside her house thus attempting to prevent [Vasile] from making an authorized arrest.

(P. Ex. 10).

         F. Vasile's Incident Report and Subject ...

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