Booker v. Collins

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-41021
_____________________

JIMMY SOL BOOKER

Plaintiff - Appellant

v.

JAMES A COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION, Correctional Officer III at
Telford Unit; RICHARD SODERLING, Correctional Officer III at
Telford Unit; DWIGHT MACK, Correctional Officer III (Law
Library) at Telford Unit; SHAWN LOMAX, Correctional Officer
III at Telford Unit; SHARON GILBERT, Correctional Officer
III at Telford Unit; DEBRA PRAZAK, Correctional Officer III
at Telford Unit; TONY BURNS, Correctional Officer III at
Telford Unit; KEITH CLARK, Correctional Officer III at
Telford Unit; ROBERT OAKES, Correctional Officer III at
Telford Unit; RONALD STAFFORD, Lieutenant at Telford Unit;
REGINALD STANLEY, DR; LINDA GILDON; VIRGINIA BUCHANAN;
MICHAEL PARKER; PAULA HITCHCOCK; A ROBERTS; DAVID SWIEITH;
ROCHELLE MCKINNEY; JOHN DOE, Unknown person

Defendants - Appellees

_________________________________________________________________

Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 97-CV-319
_________________________________________________________________
April 5, 2001

Before KING, Chief Judge, and REAVLEY and JONES, Circuit Judges.
KING, Chief Judge:*

This case involves an excessive use of force claim brought

by Plaintiff-Appellant Jimmy Sol Booker, who alleges that certain

Defendants-Appellees treated him with excessive force, that other

Defendants-Appellees failed to protect him from such force, and

that still other Defendants-Appellees treated him with deliberate

indifference to his serious medical needs. Plaintiff-Appellant

appeals from the district court’s grant of partial summary

judgment in favor of those Defendants-Appellees who were sued for

failure to protect and for deliberate indifference to Plaintiff-

Appellant’s medical needs. Plaintiff-Appellant also appeals from

the district court’s final judgment in favor of the remaining

Defendants-Appellees on his claim of excessive use of force. For

the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-Appellant Jimmy Sol Booker is an inmate who was,

at all times relevant to this appeal, incarcerated with the Texas

Department of Criminal Justice at the Telford Unit in New Boston,

Texas (the “Telford Unit”). Proceeding pro se and in forma

pauperis, Booker brought this 42 U.S.C. § 1983 action against

certain officers and medical personnel at the Telford Unit

*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

2
(collectively referred to hereinafter as the “Defendants”),

alleging violations of his constitutional right to be free from

cruel and unusual punishment under the Eighth Amendment of the

U.S. Constitution. Specifically, Booker claims that certain

Defendants treated him with excessive force, that other

Defendants failed to protect him from such force, and that still

other Defendants treated him with deliberate indifference to his

serious medical needs.

This suit arose from an altercation between Booker and

Defendants James Collins, Richard Soderling, and Shawn Lomax, who

are correctional officers at the Telford Unit. Booker contends

that, on April 10, 1997, Collins, with the assistance of Lomax

and Soderling, struck him in the face and “rammed his head into a

desk” while his hands were handcuffed behind his back.

Furthermore, Booker alleges that Defendants Dwight Mack, Sharon

Gilbert, Debra Prazak, Tony Burns, Keith Clark, Robert Oakes, and

Ronald Stafford, also correctional officers at the Telford Unit,

“stood idly by” during the alleged assault. Booker contends that

after the alleged assault, he was taken to the Telford Unit

medical department and was subsequently denied proper medical

care by Defendants Dr. Reginald Stanley, Linda Gildon, Virginia

Buchanan, Michael Parker, Paula Hitchcock, A. Roberts, David

Swieith, and Rochelle McKinney. Booker states that, as a result

of the assault and denial of medical care, he sustained injuries

to, inter alia, his back, neck, ribs, right eye, and right wrist.

3
 On November 7, 1997, Booker brought this civil rights action

against the Defendants. On June 28, 1999, the case was referred

to a magistrate judge, and on August 3, 1999, the magistrate

judge held a management conference, wherein both parties

consented to proceed before the magistrate judge. On August 4,

1999, the magistrate judge issued a partial summary judgment in

favor of all Defendants (except Collins, Soderling, and Lomax),

concluding that Booker failed to adduce facts sufficient to

demonstrate that those Defendants were “deliberately indifferent

to [Booker’s] medical care needs or his safety.” The magistrate

judge determined that the remaining use of force claim against

Collins, Soderling, and Lomax would proceed to a bench trial set

for September 14, 1999.

After the bench trial, the magistrate judge issued his final

judgment, finding that the force used by Collins, Soderling, and

Lomax to restrain Booker was reasonable.

Booker timely appealed both the grant of partial summary

judgment and the final judgment.

II. ISSUES REGARDING PARTIAL SUMMARY JUDGMENT

Booker raises two issues regarding whether the magistrate

judge’s grant of partial summary judgment was appropriate.

First, Booker contends that the district court did not

specifically refer the case to the magistrate judge as is

required under 28 U.S.C. § 636 (1993), and also that, at the time

4
the partial summary judgment was entered by the magistrate judge,

Booker was the only party to have consented to the magistrate

judge’s jurisdiction. Second, Booker asserts that summary

judgment was improper because he raised genuine issues of

material fact on his claims of failure to intervene and

deliberate indifference to his medical needs.

A. The Magistrate Judge’s Jurisdiction

For the first time on appeal, Booker contends that the case

was not properly referred to the magistrate judge and that the

Defendants failed to consent prior to the magistrate judge’s

grant of partial summary judgment. Even though these contentions

are raised now for the first time, we must address them because

they implicate the magistrate judge’s jurisdiction. See United

States v. Muhammad, 165 F.3d 327, 330 (5th Cir. 1999); Mendes Jr.

Int’l Co. v. M/V SOKAI MARU, 978 F.2d 920, 924 (5th Cir. 1992)

(“[A]bsence of the appropriate consent and reference (or special

designation) order results in a lack of jurisdiction (or at least

fundamental error that may be complained of for the first time on

appeal).”).

1. Effectiveness of Referral

As stated above, the district court referred the case to the

magistrate judge on June 28, 1999. However, the referral order

failed to expressly indicate that the district court was

referring the case to the magistrate judge under 28 U.S.C.

5
§ 636(c).1 Instead, the order simply stated: “This action is

referred to Robert W. Faulkner, Magistrate Judge in Sherman,

Texas, for further proceedings pursuant to 28 U.S.C. § 636.”

Booker contends that the lack of a specific designation under

§ 636(c) at the time of the grant of partial summary judgment

precluded the magistrate judge from exercising jurisdiction over

the case. We disagree.

1
Section 636(c) provides in relevant part:

Notwithstanding any provision of law to the contrary--
(1) Upon the consent of the parties, a full-time
United States magistrate or a part-time United States
magistrate who serves as a full-time judicial officer
may conduct any or all proceedings in a jury or nonjury
civil matter and order the entry of judgment in the
case, when specially designated to exercise such
jurisdiction by the district court or courts he serves.
. . .
(2) If a magistrate is designated to exercise civil
jurisdiction under paragraph (1) of this subsection,
the clerk of court shall, at the time the action is
filed, notify the parties of the availability of a
magistrate to exercise such jurisdiction. The decision
of the parties shall be communicated to the clerk of
court. . . . Rules of court for the reference of civil
matters to magistrates shall include procedures to
protect the voluntariness of the parties’ consent.
(3) Upon entry of judgment in any case referred under
paragraph (1) of this subsection, an aggrieved party
may appeal directly to the appropriate United States
court of appeals from the judgment of the magistrate in
the same manner as an appeal from any other judgment of
a district court. The consent of the parties allows a
magistrate designated to exercise civil jurisdiction
under paragraph (1) of this subsection to direct the
entry of a judgment of the district court in accordance
with the Federal Rules of Civil Procedure. . . .

28 U.S.C. § 636(c).

6
 In civil matters, the district court must specifically

indicate that it is referring a case to a magistrate judge

pursuant to § 636(c). See 28 U.S.C. § 636(c)(1) (“Upon the

consent of the parties, a full-time United States magistrate

. . . may conduct any or all proceedings in a jury or nonjury

civil matter and order the entry of judgment in the case, when

specially designated to exercise such jurisdiction by the

district court or courts he serves.” (emphasis added)). This is

referred to as § 636(c)’s “special designation” requirement. See

Hill v. City of Seven Points, 230 F.3d 167, 168-69 (5th Cir.

2000).

Conceding that the district court may not have “specially

designated” the case to the magistrate judge, we conclude that,

in this case, such a designation was not required. Pursuant to a

general order of the U.S. District Court for the Eastern District

of Texas, prisoner civil suits are automatically assigned to the

magistrate judge when the parties consent to trial and entry of

judgment by a magistrate judge. See E.D. TEX. GEN. ORDER NO. 98-

10.II.A (1998)2; see also Hill, 230 F.3d at 169.

2
General Order No. 98-10 provides:

1. Prisoner suits shall be referred at the time of
filing equally among magistrate judges with concurrent
civil case responsibilities except as specified.
Prisoner suits shall automatically be assigned to the
magistrate judge to whom the case originally was
referred when parties consent to trial and entry of
judgment by a magistrate judge.
2. All other civil matters shall be referred or

7
 In Hill v. City of Seven Points, a nonprisoner civil suit,

this court observed that, in prisoner civil suits, “the general

order apparently provides the requisite order of reference for

the magistrate judge to enter a final judgment pursuant to

§ 636(c), in that the assignment is automatic upon the consent of

the parties.” 230 F.3d at 169. Accordingly, we conclude that

under General Order No. 98-10 and Hill, the general language in

the magistrate judge’s referral order in this prisoner civil suit

became effective once the parties properly consented to trial and

entry of judgment by the magistrate judge. We must now determine

whether the magistrate judge had jurisdiction to enter partial

summary judgment several days before the Defendants filed a

written consent to the exercise of that jurisdiction.

2. Effectiveness of the Defendants’ Consent at the Management

Conference

At the August 3, 1999 management conference, only Booker

signed a consent form to proceed in front of the magistrate

judge. The Defendants, on the other hand, did not sign a consent

form until August 9, 1999, although they did consent on the

record at the management conference. Booker argues on appeal

that the magistrate was without jurisdiction to enter partial

assigned randomly except as specified above or unless a
specific order of the court directs otherwise.

Hill, 230 F.3d at 168 (internal quotations omitted) (quoting E.D.
TEX. GEN. ORDER NO. 98-10.II.A (1998)).

8
summary judgment in favor of the Defendants on August 4, 1999,

because the Defendants had yet to give their written consent to

proceed before the magistrate judge. Again, we disagree with

Booker’s argument.

This court has consistently held that “consent to proceed

before a magistrate [must] be explicit.” Mendes Jr. Int’l Co. v.

M/V SOKAI MARU, 978 F.2d 920, 922 (5th Cir. 1992) (internal

quotations omitted) (alteration in original) (quoting Caprera v.

Jacobs, 790 F.2d 442, 445 (5th Cir. 1986)); see also Parks v.

Collins, 761 F.2d 1101, 1106 (5th Cir. 1995). Therefore, we will

not “infer this statutorily required consent from the conduct of

the parties.” Mendes Jr. Int’l Co., 978 F.2d at 922 (internal

quotations omitted) (quoting Caprera, 790 F.2d at 445).

We find that, in this case, the record indicates that the

Defendants explicitly consented to proceed in front of a

magistrate judge. The minutes of the August 3, 1999 management

conference reveal that “the parties consent to proceed before US

Magistrate Judge” and that both parties “further consent to a

bench trial.” In addition, the docket sheet similarly states,

“[p]er law clerk,” that both Booker and the Defendants “consented

to proceed before US Magistrate Judge during hearing.” That

Defendants’ written consent did not come until six days later did

not divest the magistrate judge of jurisdiction.

We conclude that because the Defendants’ consent was

explicit and indicated on the record at the August 3, 1999

9
management conference, the magistrate judge had jurisdiction to

issue the partial summary judgment in favor of the Defendants.

See Kofoed v. Int’l Bhd. of Elec. Workers, 237 F.3d 1001, 1004

(9th Cir. 2001) (“In the instant case, the parties did not file

their written consent forms with the district court until after

the magistrate judge entered judgment and the case was on appeal.

However, the record reflects that the parties gave express oral

consent to the magistrate judge’s jurisdiction while they were

before the magistrate judge and before he made a dispositive

ruling.”).

B. No Fact Issues Precluding Partial Summary Judgment

Next, Booker appears to allege that he created genuine

issues of material fact on his claims of failure to intervene and

deliberate indifference to his medical needs, sufficient to

preclude summary judgment against him. After considering the

summary judgment evidence offered by the Defendants, the

magistrate judge found that the facts alleged by Booker did not

demonstrate that any of the Defendants, with the exception of

Collins, Soderling, and Lomax, “participated in the alleged force

or were under a duty to intervene.” Moreover, the magistrate

judge concluded that Booker’s medical records submitted by the

Defendants showed that Booker “received constant medical care

from the time of the alleged injuries to the time the summary

judgment motion was submitted.”

1. Standard of Review

10
 We review a grant of summary judgment de novo, applying the

same criteria employed by the district court in the first

instance. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th

Cir. 1994). “Summary judgment is proper only ‘if the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.’” Turner v. Houma

Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 482 (5th Cir.

2000) (quoting FED. R. CIV. P. 56(c)); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 327 (1986).

“Courts of Appeals consider the evidence in the light most

favorable to the nonmovant, yet the nonmovant may not rely on

mere allegations in the pleadings; rather, the nonmovant must

respond to the motion for summary judgment by setting forth

particular facts indicating that there is a genuine issue for

trial.” See Spivey v. Robertson, 197 F.3d 772, 774-75 (5th Cir.

1999) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248-49 (1986)), cert. denied, 120 S. Ct. 2659 (2000); see also

Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 383 (5th Cir.

2000) (“If the movant succeeds in making that showing, the

nonmoving party must set forth specific facts showing a genuine

issue for trial and not rest upon the allegations or denials

contained in its pleadings.”), cert. denied, 121 S. Ct. 766

(2001). After the nonmovant has been given an opportunity to

11
raise a genuine factual issue, if no reasonable juror could find

for the nonmovant, summary judgment will be granted. See FED. R.

CIV. P. 56(c); Celotex Corp., 477 U.S. at 322.

2. Propriety of Partial Summary Judgment

In an effort to support his assertion that a genuine issue

of material fact exists, it appears that Booker is arguing that

the magistrate judge erred in considering the Defendants’ summary

judgment evidence because the submitted documents were “unsworn

and unauthenticated” and that “the burden never shifted to

Appellant to go beyond the pleadings to show specific facts

creating a genuine issue for trial.” Aside from these alleged

errors, Booker merely states that “there existed genuine issues

of material facts precluding summary judgement [sic].”

First, we note that the summary judgment evidence was

authenticated by properly sworn and notarized business record

affidavits. In addition, contrary to Booker’s assertion, he was

given sufficient time to respond to the Defendants’ motion for

summary judgment and, in fact, did so by filing his own motion

for summary judgment and declaratory judgment. His motion was

replete with conclusory statements and allegations, however, as

he was unable to point to any specific facts to demonstrate that

the Defendants were not entitled to judgment as a matter of law

on his claims of failure to intervene and deliberate indifference

to his medical needs.

12
 The summary judgment evidence contained “Major Use of Force

Reports,” which were completed immediately after the altercation

on April 10, 1997. As the magistrate judge noted, these reports

demonstrate that Booker was quickly taken down and restrained,

and we agree with the magistrate judge that those Defendant

observers “did not have time to get involved.”3

Furthermore, we agree with the magistrate judge that summary

judgment was appropriate for Booker’s claim of deliberate

indifference to his medical needs. “[I]nadequate medical care by

a prison doctor can result in a constitutional violation for

purposes of a § 1983 claim when that conduct amounts to

deliberate indifference to [the prisoner’s] serious medical

needs, constitut[ing] the unnecessary and wanton infliction of

pain proscribed by the Eighth Amendment.” Stewart v. Murphy, 174

F.3d 530, 533 (5th Cir. 1999) (internal quotations omitted)

(alterations in original) (quoting Estelle v. Gamble, 429 U.S.

97, 104 (1976)); see also Harris v. Hegmann, 198 F.3d 153, 159

(5th Cir. 1999). Under the “deliberate indifference” standard, a

prison official is not liable for the denial of medical treatment

“unless the official knows of and disregards an excessive risk to

3
The evidence also showed that before Booker was
restrained, he became “belligerent” and pushed Collins in the
chest. The magistrate judge found, however, that Booker did
create a genuine factual issue regarding the altercation and,
therefore, declined to grant summary judgment in favor of
Collins, Soderling, and Lomax on this issue.

13
inmate health or safety.” See Stewart, 174 F.3d at 534 (emphasis

omitted) (citing Estelle, 429 U.S. at 104).

As the magistrate judge noted, the Defendants’ summary

judgment evidence showed that, after the time of the altercation,

Booker received continuous medical care for his claimed injuries

and pain. The fact that Booker disagrees with the medical

personnel’s conclusions regarding his injured state does not, in

this case, create a genuine issue of fact as to whether members

of the prison’s medical personnel were deliberately indifferent

to his medical needs. Instead, Booker makes only conclusory

allegations to the effect that each member of the medical

department who examined him made “false notations” in his

records. Such “mere allegations” are insufficient to sustain

Booker’s burden at the summary judgment stage of the proceedings.

See Spivey v. Robertson, 197 F.3d 772, 774-75 (5th Cir. 1999)

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49

(1986)), cert. denied, 120 S. Ct. 2659 (2000).

Accordingly, we find that the magistrate judge did not err

in granting summary judgment in favor of the Defendants on

Booker’s claims of failure to intervene and deliberate

indifference to his medical needs.

III. ISSUES REGARDING THE BENCH TRIAL

Booker also raises three issues concerning the bench trial

before the magistrate judge. First, Booker claims that he was

14
“induced” into consenting to the magistrate judge conducting the

bench trial. Second, Booker makes allegations concerning the

magistrate judge’s direction of the bench trial and the

sufficiency of the evidence supporting the magistrate judge’s

final judgment. Finally, Booker contends that the district court

failed to make a de novo review of the magistrate judge’s

findings of fact and conclusions of law after Booker objected.

A. Voluntariness of Booker’s Consent

Booker argues that the district court improperly induced him

to consent to proceeding before the magistrate judge. Booker

claims that he was informed at the management conference that no

jury in that court had ever awarded damages to a plaintiff on his

“type of claims.” Moreover, he alleges that an unidentified

“assistant” advised him at the conference that his signing the

form would result in the district court, not the magistrate

judge, conducting the trial.

The record contains the consent form that Booker signed on

August 3, 1999. The title of that form, which is in bold letters

and underlined, states: “CONSENT TO PROCEED BEFORE UNITED STATES

MAGISTRATE JUDGE AND ORDER OF REFERENCE.” In addition, just

above Booker’s signature is the language: “[T]he undersigned

party . . . hereby voluntarily consent[s] to have United States

Magistrate Judge Robert Faulkner conduct any and all further

proceedings in this case, including trial, and order the entry of

a final judgment” (emphasis added).

15
 A party’s consent to proceed to trial in front of a

magistrate judge must be voluntary. See 28 U.S.C. § 636(c)(2)

(providing that in informing the party of the availability of a

magistrate judge’s jurisdiction, the district court must “advise

the parties that they are free to withhold consent without

adverse substantive consequences”). Booker does not contend that

the district court failed to inform him that he was free to

withhold his consent. Accordingly, we conclude that his

signature on the consent form makes clear that he was aware that

a magistrate judge, and not the district court, would be

presiding over the bench trial and that Booker’s allegations do

not support a claim of “inducement” on the part of the district

court.

B. Claims Concerning Conduct of the Bench Trial

Booker makes various allegations concerning the bench trial,

including claims that the magistrate judge abused his discretion

in allowing a “surprise” witness to testify, that the magistrate

judge refused to admit into evidence “medical records . . . which

evidenced injuries he had sustained and was treated for,” and

that the magistrate judge’s findings and conclusions with respect

to the bench trial were unsupported by the trial evidence.

An appellant who wishes to challenge findings or conclusions

that are based on proceedings at a hearing or trial has the

responsibility to provide the court with a transcript. See FED.

R. APP. P. 10(b)(2); see also Alizadeh v. Safeway Stores, Inc.,

16
910 F.2d 234, 237 (5th Cir. 1990). This court will not consider

the merits of an issue when the appellant does not satisfy this

responsibility, and failure to provide a trial transcript is a

proper ground for dismissal of an appeal. See Richardson v.

Henry, 902 F.2d 414, 416 (5th Cir. 1990).

The circumstances in this case differ somewhat from those in

Alizadeh v. Safeway Stores, Inc., 910 F.2d 234 (5th Cir. 1990).

In Alizadeh, this court declined to consider the appellant’s

claims because she failed to furnish the court with a trial

transcript. See id. at 237. In contrast to the facts in this

case, the Alizadeh court noted that the appellant never moved for

a transcript on the grounds of inability to pay. See id. In

this case, Booker did ask the district court, and this court, to

provide a trial transcript at the government’s expense. His

requests were denied.4

Even with this factual difference, the result is the same.

An appellant’s pro se and in forma pauperis status does not

excuse the failure to provide a transcript for appellate review.

Cf. Richardson, 902 F.3d at 416 (pro se and in forma pauperis

appellant) (adopting the rule that “inability to bear the

financial burden of providing a transcript does not make the

transcript unavailable within the meaning of [Federal Rule of

4
The district court concluded that the “appeal d[id] not
present a substantial question,” and this court determined that
Booker raised “only conclusional claims.” As such, both courts
denied Booker’s requests pursuant to 28 U.S.C. § 753(f).

17
Appellate Procedure] 10(c)”); Riley v. Collins, 828 F.2d 306, 307

(5th Cir. 1987) (pro se appellant). Booker has failed to provide

this court with a transcript, leaving us unable to consider his

claims concerning the merits of, or the magistrate judge’s

conduct during, the bench trial. Accordingly, based on our

inability to review Booker’s challenges to the bench trial

without examining the transcript of the proceedings, we must

dismiss Booker’s claims on these issues.5

C. District Court’s Failure to Make a De Novo Determination

Finally, Booker asserts that because he objected to the

magistrate judge’s final judgment, the district court was

required by 28 U.S.C. § 636(b) to make a “de novo determination

of those portions of the . . . specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. § 636(b).

As discussed above, the case was referred to the magistrate judge

for trial pursuant to § 636(c). In contrast to § 636(b),

§ 636(c) contains no such de novo review requirement. Instead,

5
Booker also contends that the magistrate judge failed to
locate or summon witnesses that he had requested for trial. He
concedes that the magistrate judge informed him that the court
had been unable to locate several of his listed witnesses.
Booker offers no argument or evidence to suggest that the
magistrate judge’s information was incorrect or suspect.
Moreover, the authority that Booker cites in his brief concerns a
case in which the district court refused to allow the plaintiff
to conduct discovery and, instead, dismissed the plaintiff’s
claims as frivolous. In this case, Booker was allowed to conduct
discovery and to call witnesses. Therefore, we find no merit in
Booker’s contention that the magistrate judge erred by being
unable to locate all of Booker’s witnesses.

18
it allows the magistrate judge to enter final judgment in the

case and permits an aggrieved party to appeal directly from the

magistrate judge’s judgment to the court of appeals, which is

what Booker is currently doing. Accordingly, the district court

did not err in failing to make a de novo review of the magistrate

judge’s final judgment.

IV. CONCLUSION

For the foregoing reasons, the magistrate judge’s grant of

partial summary judgment and subsequent final judgment in favor

of the Defendants is AFFIRMED.

19