David L. Lewis v. Larry Mills , 677 F.3d 324 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2012
D AVID L. L EWIS,
Plaintiff-Appellant,
v.
L ARRY M ILLS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:09-cv-02090-MPM—Michael P. McCuskey, Judge.
A RGUED N OVEMBER 29, 2011—D ECIDED A PRIL 20, 2012
Before P OSNER and K ANNE, Circuit Judges, and P RATT,
District Judge.Œ
P RATT, District Judge. David L. Lewis is a former part-
time police officer for the Village of Belgium, Illinois—
a town of just over 400 people. On January 6, 2010, Lewis
Œ
The Honorable Tanya Walton Pratt, District Judge for the
United States District Court for the Southern District of
Indiana, is sitting by designation.
2 No. 11-2012
filed a one-count Amended Complaint arising under
28 U.S.C. §§ 1983 and 1988 against four defendants who
allegedly participated in a conspiracy to prosecute him
for various sexual offenses to retaliate against him for
cooperating with an FBI investigation. These four defen-
dants—a truly unique web of characters—consist of:
(1) Larry Mills, the First Assistant State’s Attorney for
Vermilion County, Illinois; (2) Todd Damilano, a Deputy
Sheriff/Investigator for the Vermilion County Sheriff’s
Department (the “Sheriff’s Department”); (3) Scott Corrie,
the former owner of a now-defunct strip club in
Belgium, Illinois, called the Playpen Gentlemen’s Club
(the “Playpen”); and (4) Clint Gray, who is Lewis’s
brother, Corrie’s friend, and an occasional patron of the
Playpen.
Lewis paints a tawdry tale involving drugs, sex, power,
corruption, and revenge, all culminating in a violation
of his First Amendment constitutional rights. The district
court observed that although there was “plenty of smoke”
in this case, there was no “evidentiary fire,” or even an
“evidentiary matchstick.” Citing this lack of evidentiary
support for Lewis’s claims, the district court granted
summary judgment for all four defendants. Lewis has
now appealed, and we affirm.
I. Background
Lewis worked as a part-time police officer in
Belgium, Illinois from October 2003 until February 2007.
Lewis apparently had an unremarkable record until
No. 11-2012 3
March 2006, when numerous women—mostly dancers
at the Playpen— began accusing him of a wide variety
of inappropriate sexual conduct.
Specifically, Lewis’s saga began around 3:10 a.m.
on March 17, 2006. At that time, Lewis—on duty and
in full police uniform—pulled over Danielle Perry, a
Playpen dancer. Soon thereafter, Perry drove off, leaving
Lewis alone alongside his Village of Belgium squad car.
Roughly 20 hours later, at 10:45 p.m., Perry reported to
the Sheriff’s Department that, during the traffic stop,
Lewis grabbed her, forced her to kiss him, and put
his hands down her pants.
The Sheriff’s Department Captain, Rod Kaag, launched
an investigation of Lewis’s alleged conduct. On March 22,
2006, Perry gave a recorded account of what transpired.
On March 23, 2006, Kaag procured a grand jury
subpoena to obtain Perry’s phone records to see if the
records were consistent with her version of events. That
same day, Kaag advised Mills that the Sheriff’s Depart-
ment was launching an investigation against Lewis
based on Perry’s report. Notably, Kaag “did not ask
Mills for guidance, direction or assistance in the investi-
gation.” Moreover, Kaag does “not recall having any
other discussions with Mills in 2006 about Lewis” and
“did not ask Mills to take any prosecutorial action in
2006 vis a vis Lewis.”
In April 2006, two more Playpen dancers reported
allegations of a sexual nature involving Lewis. Lacrisha
Carrigan informed Kaag that, one year earlier, Lewis,
while on duty, showed her pictures of his genitalia next
4 No. 11-2012
to a beer bottle. Rebecca Lee told Investigator Damilano—
who was working under the direction and supervision
of Kaag—that she gave Lewis oral sex to avoid a traffic
ticket. Damilano supplied Kaag with a copy of Lee’s
report. Kaag did not immediately pursue charges against
Lewis because he had concerns that these allegations,
standing alone, “would not be sufficient to convict
Officer Lewis.”
It is perhaps unsurprising that an establishment like
the Playpen—which has since closed—was a haven for
trouble. Indeed, the “secondary effects” of strip clubs
are well-established. See, e.g., Fantasy Ranch, Inc. v. City
of Arlington, 459 F.3d 546, 559 (5th Cir. 2006). Presumably,
that is why, in January 2006, the Belgium Police Chief
Dale Ghibaudy instructed his officers to avoid the
Playpen unless they were responding to a call. However,
in Ghibaudy’s view, this admonition had little deterrent
effect on Lewis. Ghibaudy testified in his deposition
that he believed Lewis repeatedly and grossly violated
this directive.
On January 19, 2007, Audrey White—who worked
for Clint Gray at his restaurant, Fat Boy Subs—lodged
a complaint with Ghibaudy about an incident involving
Lewis that occurred on December 23 and 24, 2006. She
then followed this up with a recorded statement on
January 22, 2007. Specifically, White alleged that, hours
after running into Lewis at the Playpen on the night of
December 23, 2006, Lewis arrived at her home in full
uniform, invited her into his squad car, drove her to
a secluded area, and tried to kiss her.
No. 11-2012 5
In February and March 2007, Damilano interviewed
four more women who claimed that Lewis had sexually
victimized them. Three were Playpen employees (Cheryl
Forshier, Amy Dow, and Jennifer Garrett, who also hap-
pens to be Lewis’s sister-in-law), and one was a Steak n’
Shake employee (Ashley Grider). Following this spate
of allegations, Kaag became “convinced that probable
cause existed to believe that Lewis had victimized
several women and abused his police position with the
Village of Belgium.” Therefore, he and Damilano finally
turned over the results of the investigation to Mills.
But, notably, in the meantime, Mills had become the
subject of a separate investigation involving allegations
of unseemly conduct. Specifically, before 2006, the FBI
began investigating Mills on suspicion that he had pro-
vided favorable deals to criminal defendants in ex-
change for drugs and other favors. On December 13, 2006,
an FBI Special Agent and an Illinois State Police Investi-
gator interviewed Lewis and inquired about Mills. Lewis
responded that he had no firsthand knowledge of any
drug trafficking or drug use by Mills. Lewis did state,
however, that he had heard “rumors” concerning Mills’s
“attendance at parties, cocaine use, and possibly pro-
viding drugs to females with disgruntled husbands
and/or boyfriends.”
At the end of this interview, the FBI agent handed
Lewis his card. At his deposition, the Illinois State
Police Investigator confirmed that Lewis was not a par-
ticularly “significant” or “helpful” witness. After this
interview, Lewis did not have contact with anyone re-
6 No. 11-2012
garding the investigation, at least until after his own
indictment, which is discussed below.
On December 17, 2006, just days after his discussion
with the FBI, Lewis alleges that he had a notable con-
versation with his brother, Clint Gray. Gray approached
Lewis, stating that they needed to talk and “your
badge needs to stay in the car” because “this is between
brother and brother[.]” Gray stated that he had heard
that Lewis had spoken to the FBI and that he was
“making some very powerful and dangerous people
very uncomfortable.” When asked what the FBI knew,
Lewis responded that the “FBI has some concerns
[Mills] is involved in something not exactly on the up
and up with the Playpen.” Gray responded that Mills
“runs this county” because he has “absolute power . . . to
say . . . who does and doesn’t go to trial.” Gray then
explained that in exchange for women and cocaine
from Corrie, Mills prosecuted competing drug dealers.
Gray also added that Lewis could double his annual
income if he went along with this scheme. At the end of
this conversation, Gray allegedly asked Lewis if he was
“in.” Lewis responded that he would not get involved
and that he was going to do his job. Gray ended the
conversation cryptically, warning “you know I can’t
protect you, right.”
Soon after this alleged conversation with Gray, Lewis
claims that Jennifer Garrett, his sister-in-law, told him
that Corrie kept an apartment where Mills and the
Playpen dancers had sex and used cocaine. According
to Lewis, she also stated that she had sex with Damilano
No. 11-2012 7
on multiple occasions. Finally, Garrett allegedly added
that if she had legal problems, all she had to do is tell
law enforcement to contact Damilano.
On March 30, 2007, a Vermilion County grand jury
convened to consider criminal charges against Lewis.
Six women testified under oath about their encounters:
White, Dow, Perry, Garrett, Carrigan, and Grider. Lewis
claims that, immediately before the grand jury hearing,
Mills asked him what he had told the FBI. When Lewis
feigned ignorance, Mills responded, “wrong answer
Dave.” On April 11, 2007, the grand jury charged Lewis
with 49 felony counts involving official misconduct,
armed violence, criminal sexual assault, aggravated
criminal sexual assault, criminal sexual abuse, and ob-
structing justice. Lewis was incarcerated while awaiting
trial.
On April 3, 2008, Lewis’s trial on two of the counts—
one count for official misconduct and one count for
criminal sexual abuse—convened, and he was acquitted.
Notably, at the trial, Dow recanted her earlier grand
jury testimony. Specifically, Dow testified that, in late
2006 or early 2007, Corrie called a meeting with the
female Playpen employees and told them they would not
have to pay “house fees” if they fabricated statements
about Lewis because Lewis’s presence was hampering
Corrie’s drug trade. (Presumably, it’s harder to sell
drugs when cops are milling about.) Dow—not exactly
a model of credibility—later recanted this recantation,
leading to a perjury conviction. For what it’s worth, in
her deposition for this case, Dow stated that her 2007
8 No. 11-2012
grand jury testimony against Lewis was truthful and
that her recantation in April 2008 was false. Dow testi-
fied that she changed her story for Lewis’s trial because
of threats to her children, stating “I’m not going to risk
my kids.”
Thereafter, on June 9, 2008, a special prosecutor
assigned to the case dismissed all of the original charges
in return for Lewis’s agreement to plead guilty to four
class misdemeanors: three counts of official misconduct
and one count of obstruction of justice. These charges
arose from Lewis’s actions toward Audrey White. At
the plea hearing, these two charges were described as
“lesser included offenses of counts already charged.”
Lewis was sentenced to one year in jail and one year of
conditional discharge, but was given credit for time
served and released that same day—after spending
423 days incarcerated. Mills, meanwhile, was never
charged with any crimes.
On January 6, 2010, Lewis filed a one-count Amended
Complaint against Mills, Damilano, Gray, and Corrie.
Each of the four defendants moved for summary judg-
ment. The district judge granted their motions in full,
ruling as follows: (1) Mills is entitled to absolute pros-
ecutorial immunity; (2) Damilano is entitled to qualified
immunity; (3) there is no evidence that Gray conspired
with Mills and Damilano to have Lewis prosecuted; and
(4) notwithstanding Dow’s April 2008 testimony that
Corrie asked the female employees at the Playpen to
fabricate evidence against Lewis, “[t]here is still no evi-
dence that Corrie acted in concert with either Mills or
No. 11-2012 9
Damilano to frame [Lewis] because [Lewis] spoke with
the FBI.” This appeal followed. Additional facts are
added below as needed.
II. Discussion
A grant of summary judgment is reviewed de novo,
construing the facts and drawing all reasonable inferences
in the light most favorable to the non-movant—in this
case, Lewis. Castronovo v. Nat’l Union Fire Ins. Co., 571
F.3d 667, 671 (7th Cir. 2009) (citation omitted). Further,
in a case like this, it is important to remain mindful that
“neither the mere existence of some alleged factual
dispute between the parties . . . nor the existence of some
metaphysical doubt as to the material facts . . . is sufficient
to defeat a motion for summary judgment.” Chiaramonte
v. Fashion Bed Group, Inc., 129 F.3d 391, 395 (7th Cir. 1997)
(citations and internal quotations omitted).
Lewis’s claim is one for First Amendment retaliation.
Indeed, “[a]n individual may not be subject to criminal
prosecution for exercising his right to free speech.” Peals
v. Terre Haute Police Dep’t, 535 F.3d 621, 626 (7th Cir.
2008) (citation omitted). To establish a prima facie case
for this type of claim, a plaintiff must demonstrate that:
(1) he engaged in constitutionally protected speech;
(2) he suffered a deprivation likely to deter the free
exercise of his First Amendment rights; and (3) his
speech was a motivating factor in the defendant’s re-
taliation. See Massey v. Johnson, 457 F.3d 711, 716 (7th
Cir. 2006); see also Surita v. Hyde, 665 F.3d 860, 874 (7th
10 No. 11-2012
Cir. 2011) (The district judge “was not wrong in refer-
encing a burden-shifting test that included a plaintiff’s
burden to show a motivating factor.”). Placing his claim
within this framework, Lewis contends that, in retalia-
tion for his cooperation with the FBI’s investigation and
his refusal to join in Mills’s corruption, the defendants
conspired to convict him of false criminal charges.
A. Mills
Mills argues that he is entitled to absolute prosecu-
torial immunity. It is well-settled that prosecutors have
absolute immunity for their core prosecutorial actions,
see Hartman v. Moore, 547 U.S. 250, 261-62 (2006), but
“the degree of immunity prosecutors are afforded
depends on their activity in a particular case.” Anderson v.
Simon, 217 F.3d 472, 475 (7th Cir. 2000). The Supreme
Court has offered useful guidance in drawing this line
of demarcation. Specifically, prosecutors are entitled to
absolute immunity when they are performing func-
tions—such as determining whether charges should be
brought and initiating a prosecution—“intimately associ-
ated with the judicial phase of the criminal process.”
Buckley v. Fitzsimmons, 509 U.S. 259, 270 (1993) (citation
and internal quotations omitted); see also Spiegel v.
Rabinovitz, 121 F.3d 251, 257 (7th Cir. 1997) (state at-
torney’s decision regarding which of two complaints
should be prosecuted merited absolute prosecutorial
immunity). But, prosecutors are not entitled to absolute
immunity when performing “acts of investigation or
administration.” Buckley, 509 U.S. at 270 (citation and
No. 11-2012 11
internal quotations omitted). In other words, “[w]hen
the functions of prosecutors and detectives are the
same . . . the immunity that protects them is also the
same.” Id. at 276.
So the question arises: did Mills ever deviate from his
prosecutorial functions and cross into the investigatory
realm? Lewis concedes that Mills is immune from
liability “for taking the case to the grand jury, for
pursuing an indictment and for prosecuting Lewis.”
However, Lewis contends that Mills crossed into the
investigatory sphere because he was “involved in the
investigation and the fabrication of evidence against
[Lewis].” Indeed, a showing that a prosecutor in-
vestigated and fabricated evidence against a target
would automatically defeat absolute prosecutorial im-
munity, even if that target was later brought to trial. Id.
(“A prosecutor may not shield his investigative work
with the aegis of absolute immunity merely because,
after a suspect is eventually arrested, indicted, and
tried, that work may be retrospectively described as
‘preparation’ for a possible trial; every prosecutor
might then shield himself from liability for any constitu-
tional wrong against innocent citizens by ensuring
that they go to trial.”).
To bolster his claim against Mills, Lewis emphasizes
three strands of evidence: (1) the testimony of Amy
Dow and the statement of Jennifer Garrett; (2) the time-
line of the investigation of Lewis; and (3) Mills’s
statement to Lewis at the grand jury proceedings. Unfor-
tunately for Lewis, none of this evidence shows that
Mills took an investigative role in his prosecution.
12 No. 11-2012
First, Lewis highlights the ever-vacillating testimony
of Amy Dow—specifically, the testimony from the
April 2008 trial, when she claimed that Corrie wanted
the female employees at the Playpen to fabricate allega-
tions against Lewis. From there, Lewis highlights his
recollection of a conversation he had with Jennifer
Garrett (a conversation that she denies ever occurred),
in which she stated that she and other Playpen dancers
would meet at Corrie’s apartment, use cocaine, and
have sex with Mills. When viewing these statements
together, Lewis argues, they “clearly link Corrie and
Mills to a cocaine conspiracy.”
We are not persuaded that this evidence furthers
Lewis’s cause. Even if Amy Dow’s April 2008 testimony
can be credited (which is unclear, given that it later
formed the basis of a perjury conviction), such testimony
never linked Mills to any scheme to frame Lewis; it
only implicated Corrie. And, even setting aside serious
hearsay concerns, Garrett’s statement may be evidence
that Mills is an unsavory character who associates
with Corrie; however, it does nothing to show Mills’s
participation in an effort to frame Lewis.
Second, Lewis emphasizes the timeline of events. In
doing so, he devotes considerable time to poking holes
in the veracity of Danielle Perry’s allegations—the al-
legations that catalyzed Kaag’s initial investigation of
Lewis. Lewis then emphasizes that no disciplinary
action was taken after Perry, Rebecca Lee, and Lacrisha
Carrigan leveled allegations against him—all before he
spoke to the FBI. Lewis infers that Kaag’s failure to act
No. 11-2012 13
shows that he did not find these allegations to be credible
and therefore did not take them seriously. According
to Lewis, though, this all changed in the wake of his
communications with the FBI. On this point, Lewis
notes that “[t]he investigation that had been dormant
for more than eight months became revived, Lewis was
told by Gray that he was messing with the wrong person
(Mills) and, according to Dow, strippers were given a
financial incentive by Corrie to fabricate evidence
against Lewis.” Lewis argues that this timeline is telling,
and that a reasonable jury could infer that Mills took
part in the investigation and conspired to fabricate evi-
dence against him.
Lewis’s argument is mere speculation, and it is well-
settled that “conjecture alone cannot defeat a summary
judgment motion.” Delapaz v. Richardson, 634 F.3d 895,
901 (7th Cir. 2011) (citation omitted). The evidence
shows that, at all relevant times, non-party Kaag (and
Kaag alone) spearheaded the investigation of Lewis, and
Mills played no meaningful role in this operation. Kaag’s
testimony—which remains undisputed—is that he did
not turn this matter over to Mills until after the investiga-
tion was completed and the case was ready for a grand
jury. There is no evidence, for instance, that Kaag
was taking directions from Mills or that the two had
meaningful communications about Lewis (outside of
their initial perfunctory communication that the Sheriff’s
Department would be investigating Lewis). Moreover,
Lewis’s chronology ignores the fact that, after he
spoke to the FBI in a brief conversation in which nothing
meaningful was conveyed, five additional women came
14 No. 11-2012
forward with allegations against him (White, Forshier,
Grider, Garrett, and Dow). In short, Lewis’s emphasis
on the timeline does not help build a logical bridge that
Mills ever deviated from his core prosecutorial function.
Finally, Lewis highlights the exchange between him
and Mills during the grand jury proceedings, in which
Lewis feigned ignorance about the FBI’s investigation
of Mills, and Mills responded “wrong answer Dave.”
Lewis claims that, from this statement, “[a] jury could
certainly conclude that this bizarre behavior was direct
evidence of Mills framing Lewis.” Emphasizing this
evidence contradicts a concession made earlier in
Lewis’s brief: that Mills is immune from liability “for
taking the case to the grand jury, for pursuing an indict-
ment and for prosecuting Lewis.” Simply stated, when
Mills made this statement, he was in the process of taking
Lewis’s case before a grand jury—a core prosecutorial
function.
In sum, Lewis’s evidence does little to shed light on
his shadowy conspiracy allegations involving Mills.
See Evers v. Reak, 21 Fed. Appx. 447, 450 (7th Cir. 2001)
(“Vague and conclusory allegations of the existence of a
conspiracy are not enough to sustain a plaintiff’s
burden . . . .”). Here, the evidence shows that, to put
it charitably, Mills was far from a saint. What
the evidence does not show, however, is that Mills de-
viated from his prosecutorial role. Accordingly, Mills
is entitled to absolute prosecutorial immunity.
No. 11-2012 15
B. Damilano
As an initial matter, it is worth noting that Lewis’s brief
fails to develop a cogent argument explaining how the
Sheriff’s Department Investigator Damilano fits into
this conspiracy. Instead, Lewis merely writes that, in
light of the above evidence, “a jury could permissibly
conclude that Damilano . . . participated in a conspiracy
to frame Lewis.” Given the cursory nature of this argu-
ment, Lewis comes close to waiving this issue for ap-
peal. See Long v. Teachers’ Ret. Sys. of Ill., 585 F.3d 344,
349 (7th Cir. 2009) (“[U]nsupported and underdeveloped
arguments are waived.”) (citation and internal quota-
tions omitted).
For the sake of thoroughness, however, we will speak
to this issue briefly. The Supreme Court has noted that,
under certain circumstances, a claim for “retaliatory
inducement to prosecute” can be brought against a non-
prosecutor “who may have influenced the prosecutorial
decision but did not himself make it[.]” Hartman, 547
U.S. at 262. To prevail on this claim, the plaintiff “must
show that the nonprosecuting official acted in retalia-
tion, and must also show that he induced the prosecutor
to bring charges that would not have been initiated with-
out his urging.” Id. As such, “the causal connection re-
quired here is not merely between the retaliatory animus
of one person and that person’s own injurious action,
but between the retaliatory animus of one person and
the action of another.” Id.
Suffice it to say that Lewis has not unearthed any
evidence showing that Damilano possessed the requisite
16 No. 11-2012
animus for this type of claim (let alone evidence of a
causal nexus between Damilano’s animus and Mills’s
decision to prosecute). Rather, the evidence shows that,
at all relevant times, Damilano worked under non-
party Kaag’s supervision. This lack of evidence is fatal
to Lewis’s claim.
C. Gray and Corrie
Lewis again takes a cursory approach to his claims
against non-government defendants Gray and Corrie,
simply writing that, given the evidence described above,
“a jury could permissibly conclude that . . . Corrie and
Gray . . . participated in a conspiracy to frame Lewis.”
Complicating matters, Corrie and Gray did not respond
with an appellate brief. Moreover, in a negligent
fashion, they also failed to respond to this Court’s show
cause order. Therefore, this appeal was submitted for a
decision without the filing of a brief or oral argument on
behalf of Corrie and Gray. Fortunately for them, their
failure does not change the outcome of this case.
As to Gray, there is no evidence linking him to a con-
spiracy. Gray’s alleged involvement consists of warning
Lewis that he was “making some very powerful and
dangerous people very uncomfortable” and that he could
not “protect” Lewis. These statements do not connect
Gray to a scheme to frame Lewis. Therefore, Lewis’s
claim against Gray fails.
Next, unlike his claims against Mills, Damilano, and
Gray, Lewis arguably can point to tangible evidence
No. 11-2012 17
that Corrie was out to get him: specifically, Dow’s
April 2008 testimony, which later formed the basis
of her perjury conviction. Importantly, however, to estab-
lish § 1983 liability through a conspiracy theory, “a
plaintiff must demonstrate that: (1) a state official and
a private individual(s) reached an understanding to
deprive the plaintiff of his constitutional rights, and
(2) those individual(s) were willful participant[s] in joint
activity with the State or its agents.” Reynolds v. Jamison,
488 F.3d 756, 764 (7th Cir. 2007) (citation and internal
quotations omitted); see also Hughes v. Meyer, 880 F.2d
967, 972 (7th Cir. 1989) (for a private party to act under
color of state law, “there must be a conspiracy, an agree-
ment on a joint course of action in which the private
party and the state have a common goal”) (citation
and internal quotations omitted).
Plainly stated, there is no evidence that Corrie acted
in concert with a state official—Mills or Damilano—to
frame Lewis because of his participation in the FBI’s
investigation. Instead, the evidence, assuming it can be
considered, only shows that Corrie wanted to frame
Lewis because his presence at the strip club was
hampering Corrie’s drug business. In other words,
because the claims against Mills and Damilano have
failed, the claim against Corrie necessarily suffers the
same fate.
Finally, although defendants did not make this argu-
ment, the Court would be remiss not to underscore a
notable fact: Lewis pled guilty to class A misdemeanor
charges of obstruction of justice and official misconduct.
18 No. 11-2012
But, here, a judgment in Lewis’s favor would to some
degree vindicate him, given that defendants allegedly
participated in a scheme to fabricate evidence against
him. Importantly, however, such vindication is incon-
sistent with his guilty plea. On this point, it is well-
settled that Heck v. Humphrey, 512 U.S. 447 (1994) bars
a plaintiff from maintaining a § 1983 action where a
judgment in favor of the plaintiff would necessarily
imply that his conviction was invalid. See McCann v.
Neilsen, 466 F.3d 619, 621 (7th Cir. 2006). In other words,
in light of Lewis’s guilty plea, an argument exists that
his claims against defendants were doomed from the
outset. At oral arguments, Lewis’s counsel suggested
that the guilty plea— for four class A misdemeanors—is,
in effect, severable from the far more serious original
49 felony charges. Fortunately, we need not wade
deeply into this issue, given the lack of evidence sup-
porting Lewis’s overarching theory of a conspiracy.
III. Conclusion
For the foregoing reasons, we A FFIRM the decision of
the district court.
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