Kristie Andrews v. Randy Fowler

_____________
No. 95-3917
_____________
Kristi D. Andrews, *
*
Plaintiff-Appellant, * Appeal from the United States
* District Court for the
v. * District of South Dakota.
*
Randy Alan Fowler, individually *
and in his capacity as an *
officer with the City of North *
Sioux City, South Dakota, *
*
Defendant, *
*
Scott Price, individually and *
in his capacity as former Chief *
of Police of the City of North *
Sioux City, South Dakota Police *
Department; William C. Merrill, *
individually and in his capacity*
as Mayor of the City of North *
Sioux City, South Dakota; City *
of North Sioux City, South *
Dakota, *
*
Defendants-Appellees. *
_____________
Submitted: June 13, 1996
Filed: October 23, 1996
_____________
Before HANSEN, ROSS, and JOHN R. GIBSON, Circuit Judges.
_____________
HANSEN, Circuit Judge.
Kristi Andrews brought this civil rights action, alleging causes of
action pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and state law,
arising out of a sexual assault by Randy Fowler, a former police officer
for the North Sioux City Police Department.
The district court granted summary judgment in favor of former Chief of
Police Scott Price, Mayor William Merrill, and North Sioux City, South
Dakota. In this appeal, Andrews contends that the district court erred in
granting summary judgment, because (1) genuine issues of material fact
exist on her § 1983 claim that these defendants failed to properly hire,
train, and supervise Fowler and failed to act on or investigate complaints;
(2) genuine issues of material fact exist on her § 1985(3) conspiracy
claim; and (3) the district court erred in denying her request to take
additional depositions. We affirm in part and reverse in part.
I.
The record, viewed in the light most favorable to Andrews, supports
the following set of facts. In the early morning hours of June 8, 1991,
Andrews was raped by Randy Fowler, who was then a police officer for the
North Sioux City Police Department. At the time, Andrews was a 17-year-old
and had been drinking. She had recently graduated from high school and was
preparing to enter basic training for the military.
Earlier the same evening, during a going-away party for Andrews at
her home, police were called to the scene because of underage drinking and
reports of several arguments at the party. Fowler took an interest in
Andrews, which Chief of Police Scott Price noticed. After the police left
the scene, Price called all three of his officers back to the police
department where he warned them not to fraternize while on duty, especially
not with minor females. Price was aware that the department had had
trouble in the past with some officers fraternizing with and possibly even
having sexual relations with minor females. Those officers had been
discharged before Price became chief of police and before any of Price's
officers had been hired. Price had, however, received numerous complaints
that one of his officers had been stopping females for minor traffic
violations or no violation at all, asking
2
them out on dates, and offering not to issue citations if they would agree
to go on a date with or to provide their telephone number to the officer.
Therefore, Price warned his officers to avoid such conduct.
Later on June 8, 1991, while Fowler was still on duty, he returned
to Andrews' home on another call reporting a disturbance at the address.
He invited Andrews into his police car. They drove away from Andrews' home
and parked the police car in a spot where the two talked for some time.
Fowler offered to take Andrews home when his shift was over. At that time,
Fowler exchanged his police car for his personal vehicle, but instead of
taking Andrews home, Fowler took her to an isolated area. There, he forced
her to have sexual intercourse with him under threats that he would charge
her with underage drinking and prevent her from being allowed into the
military if she did not cooperate with his advances. Andrews told no one
of the assault.
During the next few weeks, while Andrews was away at basic training,
her mother, Dixie Anderson, began to hear rumors that Randy Fowler was
bragging about having had sexual relations with Andrews and that he knew
she had no tan lines. When her mother reported this to Andrews in a brief
telephone conversation, Andrews replied, "I can't go into detail. Just
press charges." (Appellant's App. at 39.) Dixie Anderson then went to
Chief of Police Price, who had already heard the rumor of Fowler's boasts
from another officer. Anderson informed Price that if there had been
sexual relations between her daughter and Fowler, it was not consensual and
she wanted to press charges. Price confronted Fowler with the accusation,
and he denied having had any sexual relations with Andrews. Price did not
investigate the incident further, and Anderson did not pursue the matter.
In early July, Fowler sexually assaulted another woman, Bonnie Bell,
threatening to charge her with a crime if she did not
3
acquiesce to his sexual demands. Ms. Bell told Officer Greg Hanson about
the incident but did not make a formal complaint. Officer Hanson told
Chief Price about the incident, but Price did not investigate. Ultimately,
on August 3, 1991, Price wrote up an evaluation of Fowler to present to the
city council when he requested Fowler's termination. The evaluation
included some reference to the Andrews incident, to reports that Fowler had
been stopping young females and asking them out on dates instead of issuing
citations, and to Fowler's dates with another 17-year-old girl against
Price's orders. The evaluation also noted Fowler's lack of reliability,
often failing to respond to radio requests for back-up help. Price
presented a copy of the evaluation to the mayor and met with the mayor and
the city council on August 5, 1991, to discuss terminating Fowler's
employment. The city council immediately requested Fowler's resignation,
and he complied.
Andrews' mother, Dixie Anderson, testified that she decided not to
pursue the criminal prosecution of Fowler because she had heard of his
discharge and assumed that there was nothing more she could do. Three
years later, at the instigation of then Chief of Police Skip Ensley who
investigated these matters, Fowler was prosecuted for raping Kristi
Andrews. The Supreme Court of South Dakota recently affirmed Fowler's
conviction of second-degree rape. State v. Fowler, 552 N.W.2d 92 (S.D.
1996). In another criminal case, Fowler was convicted of attempted second-
degree rape, simple assault, and sexual contact all arising from his
assault of Bonnie Bell, which occurred approximately one month after he
raped Andrews. State v. Fowler, 552 N.W.2d 391 (S.D. 1996).
Andrews brought this civil rights suit against Fowler, Chief of
Police Price, Mayor Merrill, and the city based on the incident. Andrews
asserted a § 1983 cause of action based on Fowler's conduct and the other
defendants' failure to properly hire, supervise, or train Fowler, as well
as their failure to investigate complaints against him. Andrews asserted
a § 1985(3) cause of action,
4
claiming that the defendants conspired to deprive her of her constitutional
rights by covering up Fowler's misconduct. Andrews also asserted South
Dakota state law claims of assault and battery, intentional infliction of
severe emotional distress, and negligence.
The district court granted summary judgment to Price, Merrill, and
the city, concluding that there is no genuine issue of material fact on the
§ 1983 claims or on the § 1985(3) conspiracy claim. As to the state law
claims, the district court concluded that they are not available because
Andrews did not comply with the statutory notice requirement. See S.D.
Codified Laws Ann. § 3-21-2 (1994). The district court granted partial
summary judgment in favor of Fowler, dismissing the § 1985(3) conspiracy
claim and the state law assault and battery claim against him. Trial
against Fowler on the remaining claims is stayed pending final disposition
of this appeal, in which Andrews challenges the grant of summary judgment
in favor of Price, Merrill, and the city.
II.
"We review the district court's grant of summary judgment de novo,
applying the same standard as the district court and examining the record
in the light most favorable to the nonmoving party." Barge v. Anheuser-
Busch, Inc., 87 F.3d 256, 258 (8th Cir. 1996). Summary judgment is
appropriate when the record reveals that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter
of law. Disesa v. St. Louis Community College, 79 F.3d 92, 94 (8th Cir.
1996). See Fed. R. Civ. P. 56(c). Summary judgment is also appropriate
when the plaintiff has failed to make a sufficient showing of the existence
of an essential element of her case. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
5
A.
Andrews first contends that the district court erred by granting
summary judgment to Price, Merrill, and the city on her § 1983 claim. On
appeal, she contends that she has raised a material dispute of fact
concerning whether these defendants failed to properly hire, train, and
supervise Fowler or to investigate complaints against him.
1.
We begin with Andrews' arguments challenging the district court's
grant of summary judgment to the city.
a.
"[A] local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents" on a theory of respondeat
superior. Monell v. Dep't of Social Servs. of the City of New York, 436
U.S. 658, 694 (1978). The city may be subject to § 1983 liability for
failing to act on complaints of sexual misconduct by police department
employees only if it had a "policy or custom" of failing to act upon prior
similar complaints of unconstitutional conduct, which caused the
constitutional injury at issue. Id. There must exist a prior pattern of
unconstitutional conduct that is so "persistent and widespread" as to have
the effect and force of law. Id. at 691; Thelma D. v. Board of Educ., 934
F.2d 929, 932-34 (8th Cir. 1991); Jane Doe A. v. Special Sch. Dist. of St.
Louis County, 901 F.2d 642, 645-46 (8th Cir. 1990). "To establish a city's
liability based on its failure to prevent misconduct by employees, the
plaintiff must show that city officials had knowledge of prior incidents
of police misconduct and deliberately failed to take remedial action."
Parrish v. Luckie, 963 F.2d 201, 204 (8th Cir. 1992). See also Harris v.
Pagedale, 821 F.2d 499, 504 (8th Cir.), cert. denied, 484 U.S. 986 (1987).
6
We agree with the district court's conclusion that Andrews failed to
demonstrate a city policy or custom of failing to act on or investigate
prior complaints of sexual abuse by police officers. The evidence
demonstrates that prior to the time either Price or Fowler was on the
police force, three officers had been asked to resign due to their
relations with minor females in the community. In each of those prior
instances, however, the mayor and city council members took immediate
action to request the officer's resignation when informed of the officer's
misconduct. Contrary to Andrews' contention, these instances are strong
evidence that the city had a policy or custom of taking adequate remedial
action to remove police officers accused of sexual misconduct with minors.
Likewise, in this case, when Chief of Police Price brought Fowler's
misconduct to the city council's attention and requested his termination,
the council immediately acted to request Fowler's resignation.
Andrews contends that she raised a question of fact because testimony
also indicated that council members, the mayor, and Price had heard rumors
during Fowler's tenure that an officer had been harassing women by stopping
them for minor traffic offenses or no offense at all and asking them on
dates or for their telephone numbers. The offers to forgive citations were
allegedly laden with sexual overtones. Some council members said that they
passed such rumors on to Price and Mayor Merrill, although they could not
say if they had passed on any information prior to Andrews' rape. Price
admitted that he had heard the rumors, but he had not received any formal
complaints, and he was not certain which officer was engaging in this
conduct because none of the hearsay reports identified a particular
officer. Consequently, Price placed Fowler and Officer Greg Hanson (who
look quite a bit alike) in separate, differently colored cars in an attempt
to determine the source of the improper conduct. This evidence does not
indicate a city custom or policy of failing to act on prior complaints.
Rather, it demonstrates that even in the face of mere
7
rumors, some remedial action was taken to try to identify the source.
Furthermore, the evidence is uncontroverted that on the very night that
Fowler raped Andrews, Price had specifically cautioned all of his officers
to avoid fraternizing with minor females.
Andrews also presented evidence of two specific complaints against
Fowler prior to her rape which she contends the city ignored. In May 1991,
the father of a young woman named Angie Zortman filed a complaint against
Fowler. Apparently, late one night while her parents were away from home,
Fowler was found prowling around inside Zortman's home. He fled after
encountering her younger sister. The next day, Zortman's father complained
to Price about Fowler's behavior. The dispatch card indicates that Fowler
went to the Zortman home around 1:30 a.m. on a complaint of loud noise and
a party. Police records also indicate that Price was dispatched to the
Zortman residence the following day in reference to Mr. Zortman's
complaint. There is no evidence that Price took any disciplinary action
against Fowler based on the incident.
Additionally, testimony indicates that in early June 1991, Michael
Kougl made a complaint to Price about Fowler's conduct toward the female
driver of a car in which he was a passenger. Fowler allegedly stopped the
vehicle for a minor violation and suggested to the female driver in a
manner laden with sexual overtones that he could take care of the ticket.
Again, there is no evidence that Price took any disciplinary action against
Fowler. In fact, Fowler's personnel file is missing, as are all records
of complaints prior to May 1991.
These two instances of misconduct indicate that Chief of Police Price
was aware that some problem existed with Fowler, but they do not indicate
a "persistent and widespread" pattern of misconduct that amounts to a city
custom or policy of overlooking
8
police misconduct. Monell, 436 U.S. at 691. Price's failure to take
remedial action in these two instances simply is an insufficient basis on
which to subject the city to liability.
The two specific prior complaints against Fowler and the various
rumors that do not implicate a particular officer pale in comparison to the
type of prior complaints that we have previously held supported a verdict
against a city. In Parrish v. Luckie, 963 F.2d at 204-05, the evidence of
prior complaints indicated that the offending police officer had engaged
in repeated acts of violence, had been charged with child abuse, and had
repeatedly requested sexual favors, including oral sex, from convenience
store clerks, all prior to the time he raped Parrish; furthermore, there
was evidence that the police department had a policy of investigating only
written complaints and that the department discouraged citizens from filing
written complaints of physical or sexual assault by officers. In Harris
v. City of Pagedale, 821 F.2d at 501-03, the evidence of prior complaints
was that the offending officer had fondled a young woman in a dark room at
the police station, made deals with another woman (several times) that he
would not charge her if she cooperated by going to a hotel room with him
or allowing him to tie her up and photograph her nude, and offered to let
a woman go free from drug charges in exchange for sex, to which she
consented for fear of her life; there also had been complaints of violence
and sexual assault by other police officers.
The prior complaints of physical or sexual assault in Parrish and
Harris were quite similar to the type of officer misconduct that caused the
constitutional deprivation actually suffered by the plaintiffs in those two
cases. See Harris, 821 F.2d at 508 (holding city liable where the "assault
was similar to many other sexual violations committed by Officer Hayles and
by other City police officers"). In this case, however, there is no
evidence that the city ever had received, or had been deliberately
9
indifferent to, complaints of violence or sexual assault on the part of an
officer prior to the time Fowler raped Kristi Andrews. Accordingly, we
conclude that the district court did not err by granting summary judgment
to the city on Andrews' failure to investigate the claim.
b.
A city also may be liable for deficient policies regarding hiring and
training police officers where (1) the city's hiring and training practices
are inadequate; (2) the city was deliberately indifferent to the rights of
others in adopting them, such that the "failure to train reflects a
deliberate or conscious choice by a municipality," City of Canton v.
Harris, 489 U.S. 378, 389 (1989); and (3) an alleged deficiency in the
city's hiring or training procedures actually caused the plaintiff's
injury. See Larson By Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996)
(en banc); Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir.),
cert. denied, 506 U.S. 824 (1992). It is necessary to show "that in light
of the duties assigned to specific officers or employees the need for more
or different training is so obvious, and the inadequacy so likely to result
in the violation of constitutional rights, that the policymakers of the
city can reasonably be said to have been deliberately indifferent to the
need." City of Canton, 489 U.S. at 390. In other words, the plaintiff
must demonstrate that the city "had notice that its procedures were
inadequate and likely to result in a violation of constitutional rights."
Thelma D., 934 F.2d at 934.
The training procedures for the North Sioux City Police Department
consisted of approximately two weeks of on-the-job training with another
officer, and officers were sent to the police academy for training within
one year of when they were employed by the department. Those officers who
did not pass the academy training were not retained. There is no reason
to conclude that
10
this training is constitutionally deficient. See Williams-El v. Johnson,
872 F.2d 224, 230 (8th Cir.) (finding training was adequate against a
charge of excessive force and denial of medical care where the city
provided on-the-job training and required attendance at the police
academy), cert. denied, 493 U.S. 871 and 493 U.S. 824 (1989). In light of
the regular law enforcement duties of a police officer, we cannot conclude
that there was a patently obvious need for the city to specifically train
officers not to rape young women. Moreover, even if the training was in
some manner deficient, "the identified deficiency in a city's training
program must be closely related to the ultimate injury" such that "the
deficiency in training actually caused the police officers'" offending
conduct. City of Canton, 489 U.S. at 391. Andrews simply cannot
demonstrate the close relationship necessary to conclude that the city's
failure to properly train Fowler caused him to rape Andrews or even raises
a question of fact as to causation.
The city's hiring policies were to place a notice of the opening in
newspapers, to require completion of a standard application form, to
conduct an international background check and a National Crime Information
Center Computer Check, and to have a personal interview with selected
applicants. The city's Personnel Policy Manual also required prospective
employees to submit to a physical and psychological examination before
being employed by the city.
In this case, the evidence demonstrates that Fowler's application was
screened by the council, the police chief, and the mayor. He was
interviewed for a part-time position and later appointed as a full-time
officer. The international background check and national criminal computer
check reported no negative information about Fowler's background. Andrews
alleges that the hiring procedure was deficient because Fowler was not
required to undergo a psychological evaluation, the city did not check his
11
prior employment record, and the city did not verify the status of his
military discharge.
While the actual hiring process given to Fowler's application may
not have fully conformed to the city's official policy, this failure in one
instance does not render the hiring policies unconstitutional. As Andrews
contends, Fowler falsely stated on his application that he received an
honorable discharge from the military, when in fact at the time he signed
his application, January 2, 1991, his record reflected a general
discharge.1 The city's failure to discover a dishonest statement on
Fowler's employment application, however, does not demonstrate deliberate
indifference sufficient to subject it to liability for Fowler's subsequent
act of violence. The city followed through with a background check of
Fowler's criminal record, which revealed no adverse information, and his
educational qualifications rendered him fit for the position. As Andrews
contends, the city did not verify Fowler's previous employment history, but
there is no evidence that any complaints were voiced against Fowler at jobs
he listed on his employment application. (Skip Ensley, a subsequent police
chief, testified that he had discovered complaints about Fowler at his
previous jobs, but not specifically at any job Fowler listed on his
employment application.) A negligent failure to check every reference or
every past employment record does not evidence deliberate indifference on
the part of the city. See Stokes v. Bullins, 844 F.2d 269, 273 (5th Cir.
1988) (noting "mere negligence will not ultimately be a sufficient basis
for § 1983
1
Fowler had been diagnosed with an adjustment disorder and an
occupational problem, which resulted in his general discharge.
Approximately one month after he signed his employment application,
however, the military corrected his record to reflect an honorable
discharge on the basis that the military had incorrectly concluded
that his diagnosis was a personality disorder. Fowler's military
record, even under the general discharge, did not reveal any
disciplinary action against Fowler or any violence or unlawful
conduct on Fowler's part that would render him ineligible to be a
police officer.
12
municipal liability"). We conclude that the district court properly
granted the city summary judgment on this issue as well.
2.
Price and Merrill may be subject to individual liability under § 1983
as supervisors for failing to adequately receive, investigate, or act upon
complaints of sexual misconduct by police department employees if they:
(1) Received notice of a pattern of unconstitutional acts
committed by subordinates;
(2) Demonstrated deliberate indifference to or tacit
authorization of the offensive acts;
(3) Failed to take sufficient remedial action; and
(4) That such failure proximately caused injury . . . .
Jane Doe A., 901 F.2d at 645.
Also, a supervisor may be held individually liable under § 1983 if
he directly participates in a constitutional violation or if a failure to
properly supervise and train the offending employee caused a deprivation
of constitutional rights. Tilson v. Forrest City Police Dep't, 28 F.3d
802, 806 (8th Cir. 1994), cert. denied, 115 S. Ct. 1315 (1995). The
plaintiff must demonstrate that the supervisor was deliberately indifferent
to or tacitly authorized the offending acts. Id. at 807. This requires
a showing that the supervisor had notice that the training procedures and
supervision were inadequate and likely to result in a constitutional
violation. Thelma D., 934 F.2d at 934.
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a.
We first assess the evidence against former Chief of Police Price.
We have already recounted the evidence of Price's actions as Chief of
Police. As noted above, while this evidence does not create a persistent
and widespread pattern of misconduct, as is necessary to subject the city
to liability for a municipal policy or custom, the two complaints against
Fowler create a question of fact concerning whether Price was individually
aware of a pattern of problems with Fowler.
A question of fact also exists as to deliberate indifference or tacit
authorization on the part of Price and his failure to take remedial action.
Although Price placed Fowler and Hanson in different cars to identify the
source of complaints and warned the officers against fraternizing with
minors on the very night that Fowler raped Andrews, there is no evidence
that he took any disciplinary action against Fowler once he knew of
complaints against Fowler specifically. Two officers submitted affidavits
attesting that Price knew of Fowler's misconduct and took no action. Price
admitted that he had heard locker-room-type talk about Fowler's relations
with Andrews after the rape, yet he took Fowler's word when Fowler denied
the incident. When told of Fowler's assault against Bonnie Bell the next
month, Price responded, "I wouldn't doubt it, that little weasel,"
referring to Fowler (Appellant's App. at 186), but again he took no action
to either discipline or investigate Fowler until he sought Fowler's
termination in early August 1991. We conclude that Andrews has
demonstrated the existence of a genuine issue of material fact for trial
concerning Price's individual liability under § 1983 for failure to act on
prior complaints of Fowler's misconduct and failure to adequately supervise
Fowler.
The failure to train allegation against Price in his individual
capacity fails for the same reasons articulated in the
14
above discussion regarding municipal liability. The procedures were not
inadequate and causation is lacking as well. We will not repeat the
discussion here.
Andrews also appears to argue that she was injured by Price's failure
to investigate her rape. We find this claim to be without merit. While
Price's inaction after learning of Andrews' rape may be continuing evidence
of his attitude of tacit authorization or failure to take remedial action,
no further constitutional injury resulted to Andrews from this failure.
Andrews never reported the incident herself and although she instructed her
mother to "press charges," she did not inform her mother of the exact
nature of the charge. Further, her mother decided not to pursue the
matter. While Price's failure to investigate the rape may have violated
state law and common sense, it did not rise to the level of a separate
constitutional violation of Andrews' rights. She made no showing that the
alleged failure to investigate was on account of her gender so the claim
does not implicate equal protection. See Gomez v. Whitney, 757 F.2d 1005,
1006 & n.1 (9th Cir. 1985) (stating "we can find no instance where the
courts have recognized inadequate investigation as sufficient to state a
civil rights claim unless there was another recognized constitutional right
involved").
b.
The evidence Andrews offers in support of individual liability on the
part of Mayor Merrill is insufficient to survive summary judgment. Merrill
took office as mayor in May 1991. There is no evidence that he received
or was aware of any complaints against Fowler until August 5, 1991, when
Price sought to have Fowler
15
discharged from his employment with the police department.2 The evidence
indicates that Merrill may have had general knowledge that, prior to the
time Fowler was hired, there had been some complaints against the police
department with respect to other officers. Those officers, however, had
been previously discharged from their employment with the department on the
basis of those complaints. This does not demonstrate that Merrill knew of
and disregarded any complaints concerning Fowler's misconduct. Once again,
we come to the same conclusion on the failure to properly hire claim as
articulated above. Accordingly, Andrews has created no genuine issue of
material fact to support individual liability on the part of Merrill, and
we affirm the grant of summary judgment in his favor.
B.
Andrews contends that the defendants conspired to deprive her of her
constitutional rights, in violation of 42 U.S.C. § 1985(3), by ignoring and
covering up complaints about Fowler's misconduct. To prove a § 1985(3)
claim:
[A] complaint must allege that the defendants did (1) "conspire
. . ." (2) "for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities
under the laws." It must then assert that one or more of the
conspirators (3) did, or caused to be done, "any act in
furtherance of the object of [the] conspiracy," whereby another
was (4a) "injured in his person or property" or (4b) "deprived
of having and exercising any right or privilege of a citizen of
the United States."
2
The affidavit of former police officer Greg Hanson makes a
bare allegation that the city council members and the mayor knew of
the complaints against Fowler. (See Appellant's App. at 186.)
This statement is made without giving any supporting factual basis,
and therefore it does not create a genuine dispute of material
fact.
16
Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). The plaintiff must
show that the conspiracy is fueled by some "class-based, invidiously
discriminatory animus." Bray v. Alexandria Women's Health Clinic, 506 U.S.
263, 268 (1993) (internal quotations omitted).
We conclude that the district court's grant of summary judgment on
this cause of action was correct. There is no evidence of any agreement
between Price, Merrill, and city council members to violate Andrews'
constitutional rights. There is no evidence of a discriminatory animus
toward women. There is evidence that one police officer engaged in
misconduct that caused injury to Andrews and that the chief of police might
have been aware of problems with this officer and failed to remedy the
misconduct prior to Andrews' injury. There is no evidence that Price met
with Merrill and city council members about Fowler's misconduct until
August 1991, two months after Andrews' injury. Furthermore, at that time,
Price requested that the city council discharge Fowler.
Additionally, to succeed on a civil rights conspiracy claim, the
plaintiff must demonstrate discriminatory purpose in that the defendants
selected the particular course of action "`because of' not merely `in spite
of' its adverse effects upon an identifiable group." Bray, 506 U.S. at
272. Andrews has submitted no evidence to demonstrate that the city, the
mayor, or Price chose their course of action relating to Fowler's behavior
because of its effect on an identifiable group -- in this case, women. The
district court did not err in granting summary judgment on Andrews'
§ 1985(3) claim.
C.
Finally, Andrews contends that the district court erred in denying
her motion to take additional depositions of remaining city
17
council members and other witnesses. See Fed. R. Civ. P. 30(a)(2)(A).
Under Rule 30(a)(2)(A), a party is entitled to up to ten depositions
without leave of court, and to obtain discovery depositions beyond ten,
leave of court is required. The record reveals that Andrews was permitted
to take twelve depositions, two more than permitted without leave of court
under Rule 30. Although some of these depositions were taken jointly for
both this and a related case, see Bell v. Fowler, No. 95-3571 (8th Cir.
Oct. __, 1996), Andrews consented and participated in them (Andrews and
Bell share the same counsel). We see no merit to her contention that she
is entitled to more depositions, and we find no abuse of discretion in the
district court's denial of her motion.
III.
Accordingly, we reverse the district court's grant of summary
judgment to Price in his individual capacity and remand this claim for
trial. In all other respects, we affirm the judgment of the district
court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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