_____________ 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 An drews 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.

### 2

The district court granted summary judgment in favor of former Chief o f Police Scott Price, Mayor William Merrill, and North Sioux City, Sout h Dakota. In this appeal, Andrews contends that t he district court erred in granti ng summary judgment, because (1) genuine issues of material fac t 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) genuin e issues of material fact exist on her § 1985(3) conspirac y claim; and (3) the district court erred in denying her request to tak e additional depositions. We affirm in part and reverse in part.

I.

The recor d, 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-ol d and had been drinking. She had recently graduated from high school and wa s preparing to enter basic training for the military.

Earlier the same evening, during a going-away party for Andrews a t her home, police were called to the scene becaus e of underage drinking and reports of several arguments at the party. Fowler took an interest i n Andrews, which Chief of Police Scott Price notic ed. After the police left the sc ene, Price called all three of his officers back to the polic e department where he warned them not to fraternize while on duty, especiall y not wi th minor females. Price was aware that the department had ha d trouble in the past with some officers fraterniz ing with and possibly even havi ng sexual relations with minor females. Those officers had bee n discharged before Price became chief of police and before any of Price's officers had been hired. Price had, however, re ceived numerous complaints that one of his officers had been stopping females for minor traffi c violations or no violation at all, asking

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them out on dates, and offering not to issue cit ations 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 returne d to Andrews' home on another call reporting a disturbance at the address. He invited Andrews into his police car. They drove away from Andrews' hom e and p arked 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 force d her to have sexual intercourse with him under th reats that he would charge her w ith underage drinking and prevent her from being allowed into th e military if she did n ot cooperate with his advances. Andrews told no one of the assault.
During the next few weeks, while And rews was away at basic training, her m other, Dixie Anderson, began to hear rumors that Randy Fowler wa s 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 tel ephone conversation, Andrews replied, "I can't go into detail. Jus t press cha rges." (Appellant's App. at 39.) Dixie Anderson then went t o Chief of Police Price , who had already heard the rumor of Fowler's boasts from anoth er officer. Anderson informed Price that if there had bee n sexual relations between her daughter and Fowler, it was not consensual an d she wanted to press charges. Price confronted F owler with the accusation, and he denied having had any sexual relations wi th Andrews. Price did not investigate the incid ent further, and Anderson did not pursue the matter.

In early July, Fowler sexually assau lted another woman, Bonnie Bell, threatening to charge her with a crime if she did not

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acquiesce to his sexu al demands. Ms. Bell told Officer Greg Hanson about the incident but did not make a formal complaint. Officer Hanson tol d 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 th e city c ouncil when he requested Fowler's termination. The evaluatio n included some reference to the Andrews incident, to reports that Fowler ha d been stopping young females and asking them out on dates instead of issuin g citati ons, and to Fowler's dates with another 17-year-old girl agains t Price's orders. The evaluation also noted Fowler's lack of reliability, often fai ling to respond to radio requests for back-up help. Pric e 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 t o pursu e the criminal prosecution of Fowler because she had heard of hi s discharge and assumed that there was nothing more she could do. Thre e years lat er, at the instigation of then Chief of Police Skip Ensley wh o inves tigated these matters, Fowler was prosecuted for raping Krist i 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

degr ee rape, simple assault, and sexual contact all arising from hi s
ass ault of Bonnie Bell, which occurred approximately one month after h e raped Andrews. State v. Fowler , 552 N.W.2d 391 (S.D. 1996).

Andrews brought this civil rights suit against Fowler, Chief o f Police Price, Mayor M errill, and the city based on the incident. Andrews asserted a § 1983 cau se of action based on Fowler's conduct and the other defendants' failure t o properly hire, supervise, or train Fowler, as well as their failure to i nvestigate complaints against him. Andrews asserted a § 1985(3) cause of action,

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claiming that the defendants conspired to deprive her of her constitutiona l rig hts by covering up Fowler's misconduct. Andrews also asserted Sout h Dakota state law clai ms of assault and battery, intentional infliction of severe emotional distress, and negligence.

The district court granted summary judgment to Price, Merrill, an d the city, concluding that there is no genuine issue of material fact on th e § 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 partia l summaryjudgment in favor of Fowler, dismissing the § 1985(3) conspiracy cla imand the state law assault and battery claim against him. Tria l against Fowler on the remaining claims is stayedpending final disposition of this appeal, in wh ich Andrews challenges the grant of summary judgment in favor of Price, Merrill, and the city.

II.

"We revi ew the district court's grant of summary judgment de novo , applying the same sta ndard as the district court and examining the record in the light most favorable to the nonmoving party." Barge v. AnheuserBusch, In c. , 87 F.3d 256, 258 (8th Cir. 1996). Summary judgment i s appropriat e when the record reveals that there is no genuine issue o f material fact and that the moving party is entitled to judgment as a matte r 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 existenc e of an essential element of her case. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986).

### 6 A.

Andrews first contends that the district court erred by grantin g summary judgment to P rice, Merrill, and the city on her § 1983 claim. On appeal, s he contends that she has raised a material dispute of fac t
concer ning whether these defendants failed to properly hire, train, an d supervise Fowler or to investigate complaints against him.

1.

We be gin 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 injur y infli cted solely by its employees or agents" on a theory of respondea t 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 fo r failing to act on complaints of sexual misconduct by police departmen t employees only if it had a "policy or custom" of failing to act upon prior simil ar complaints of unconstitutional conduct, which caused th e 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, th e plaintiff must show that city officials had knowledge of prior incidents of pol ice misconduct and deliberately failed to take remedial action. " Parrish v. Luckie , 96 3 F.2d 201, 204 (8th Cir. 1992). See also Harris v. Pagedale , 821 F.2d 499, 504 (8th Cir.), cert. de nied , 484 U.S. 986 (1987).

### 7 We agree with the district court's c onclusion that Andrews failed to demonstra te a city policy or custom of failing to act on or investigat e prior co mplaints of sexual abuse by police officers. The evidenc e dem onstrates that prior to the time either Price or Fowler was on th e pol ice force, three officers had been asked to resign due to thei r relations with minor females in the community. In each of those prio r instan ces, however, the mayor and city council members took immediat e action to request the officer's resignation wheninformed of the officer's misconduct. Contrary to Andrews' contention, these instances are strong evidence that the cit y had a policy or custom of taking adequate remedial action to remove police officers accused of sexu al misconduct with minors. Likewise, in this case, when Chief of Police Price brought Fowler' s misconduct to the cit y 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 tes timony also indicated that council members, the mayor, and Price had heard rumors during Fowler's tenure that an officer had been harassing women by stoppin g them fo r minor traffic offenses or no offense at all and asking them o n dates or for their telephone numbers. The offers to forgive citations wer e allegedly laden with sexual overtones. Some council members said that the y passed such rumors onto 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 thi s conduc t because none of the hearsay reports identified a particula r officer. Consequently, Price placed Fowler and Officer Greg Hanson (who look quite a bit alike) in separate, differently colored cars in an attemp t 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

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rumors, so me remedial action was taken to try to identify the source

. Fur thermore, the evidence is uncontroverted that on the very night tha t Fowler raped Andrews, Price had specifically cau tioned all of his officers to avoid fraternizing with minor females.

An drews also presented evidence of two specific complaints agains t 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 pa rents were away from home, Fowle r was found prowling around inside Zortman's home. He fled afte r encountering her younger sister. The next day, Zortman's father complaine d to Price about Fowler's behavior. The dispatch card indicates that Fowler went to the Zortman home around 1:30 a.m. on a c omplaint of loud noise and
a party. Police records also indicate that Price was dispatched to th e Zortma n 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.

Ad ditionally, testimony indicates that in early June 1991, Michae l Kougl made a complaint to Price about Fowler's conduct toward the female driver of a car in which he was a passenger. Fo wler allegedly stopped the veh icle for a minor violation and suggested to the female driver in a manner laden with sex ual overtones that he could take care of the ticket. Again, there is no evidence that Price took any disciplinary action agains t 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 p roblem existed with Fowler, but they do not indicate a "persistent and widespread" pattern of miscond uct that amounts to a city custom or policy of overlooking

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pol ice misconduct. Monell , 436 U.S. at 691. Price's failure to tak e remedial action in th ese two instances simply is an insufficient basis on which to subject the city to liability.

The two specific prior complaints against Fowler and the variou s
rumors that do not implicate a particular officer pale in comparison to th e type of prior complai nts 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 repeatedlyrequested 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 po licy of investigating only written complaints and that the department discouraged citizens from filin g 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 you ng woman in a dark room at the police station, m ade 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 ti e her up and photograph her nude, and offered to let
a woman go free from drug charges in exchange for sex, to which sh e consented for fear of her life; there also had b een complaints of violence and sexual assault by other police officers.

The p rior complaints of physical or sexual assault in Parrish an d Harris were quite similar to the type of officer misconduct that caused th e constitutional deprivation actually suffered by the plaintiffs in those tw o
cases. See Harris , 821 F.2d at 508 (holding city liable where the "assaul t
was similar to many other sexual violations committed by Officer Hayles an d by oth er City police officers"). In this case, however, there is n o evidence that the city ever had received, or had been deliberately

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indifferent to, complaints of violence or sexual assault on the part of an officer prior to the time Fowler raped Kristi Andrews. Accordingly, w e conclude that the dis trict 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 hiri ng and training police officers where (1) the city's hiring and training practice s are inadequate; (2) the city was deliberately in different to the rights of others in adopting them, such that the "failure to train reflects a deli berate or conscious choice by a municipality," City of Canton v

. Harris , 489 U.S. 378, 389 (1989); and (3) an alleged deficiency in th e ci ty'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 necess ary to show "that in light of the duties assigned to specific officers or e mployees the need for more
or different training is so obvious, and the inadequacy so likely to resul t in the violation of constitutional rights, that the policymakers of th e citycan reasonably be said to have been deliberately indifferent to the need. " City of Canton , 489 U.S. at 390. In other words, the plaintif f must demonstrate that the city "had notice that its procedures wer e 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 Departmen t 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 depar tment. Those officers who did not pass the academy training were not retained. There is no reason to conclude that

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this training is cons titutionally deficient. See Williams-El v. Johnson , 872 F.2d 2 24, 230 (8th Cir.) (finding training was adequate against a charge of excessive force and denial of medical care where the cit y provided on-the-job training and required attendance at the polic e academy), cert. denied , 493 U.S. 871 and 493 U.S . 824 (1989). In light of the regular law enforcement duties of a police o fficer, we cannot conclude that there was a pate ntly obvious need for the city to specifically train officers not to rape young women. Moreover, even if the training was in
some m anner deficient, "the identified deficiency in a city's trainin g progr ammust be closely related to the ultimate injury" such that "th e defi ciencyin training actually caused the police officers'" offendin g
con duct. City of Canton , 489 U.S. at 391. Andrews simply canno t demonstrate the close relationship necessary to conclude that the city's failure to properly train Fowler causedhim to r ape 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 newspa pers, to require completion of a standard application form, t o conduct an international background check and a National Crime Information Center Computer Check, and to have a personal interview with selecte d applicants. The city 's Personnel Policy Manual also required prospective employ ees to submit to a physical and psychological examination befor e being employed by the city.
In this case, the evidence demonstrates that Fowler's applicati on was
scr eened by the council, the police chief, and the mayor. He wa s int erviewed for a part-time position and later appointed as a full-tim e officer. The international background check and national criminal compute r check reported no negative information about Fow ler's background. Andrews alleges that the hiring procedure was deficient because Fowler was no t required to undergo a psychological evaluation, the city did not check his

### Fowler had been diagnosed with an adjustment disorder and an 1 

### occupa tional problem, which resulted in his general discharge

. Approximately one month after he signed his employment appli cation, however, the military correcte d his record to reflect an honorable discharge on the basis that th e military had incorrectly concluded that his diagnosis was a personality disorder. Fowler's military record , even under the general discharge, did not reveal an y di sciplinary action against Fowler or any violence or unlawfu l conduct on Fowler's part that would render him ineligible to be a police officer.
12 prior employment record, and the city did not verify the status of hi s military discharge.

While t he actual hiring process given to Fowler's application may not have fully conformed to the city's official policy, this failure in on e instance does not render the hiring policies unc onstitutional. As Andrews contends, Fowler falsely stated on his application that he received a n honorable discharge f rom the military, when in fact at the time he signed his ap plication, January 2, 1991, his record reflected a genera l disch arge. The city's failure to discover a dishonest statement o n 1 Fowler's employment a pplication, however, does not demonstrate deliberate indifference sufficient to subject it to liabili ty for Fowler's subsequent act of violence. The city followed through with a background check o f Fowler's criminal record, which revealed no adverse information, and his educational qualifica tions rendered him fit for the position. As Andrews contends, the city did not verify Fowler's previous employment history, bu t there is no evidence that any complaints were voiced against Fowler at job s he listed on his employment application. (Skip Ensley, a subsequent polic e chief, testified that he had discovered complaints about Fowler at hi s previous jobs, but not specifically at any job Fowler listed on hi s employment applicatio n.) 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

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munici pal liability"). We conclude that the district court properl y 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) Receiv ed notice of a pattern of unconstitutional act s committed by subordinates; (2) Demo nstrated deliberate indifference to or taci t 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 i f he directly participa tes in a constitutional violation or if a failure to properlysupervise and train the offending employee caused a deprivation of constitutional rights. Tilson v. Forrest City Police Dep't , 28 F.3 d 802, 806 ( 8th Cir. 1994), cert. denied , 115 S. Ct. 1315 (1995). Th e plaintiff must demonstrate that the supervisor was deliberately indifferen t to or tacitly authorized the offending acts. Id. at 807. This requires a showing that the su pervisor had notice that the training procedures and superv ision were inadequate and likely to result in a constitutiona l violation. Thelma D. , 934 F.2d at 934.

### 14 a.

We first assess the evidence against former Chief of Police Price

. We have al ready recounted the evidence of Price's actions as Chief o f Police. As noted abo ve, while this evidence does not create a persistent and widespread patter n of misconduct, as is necessary to subject the city to liability for a mu nicipal policy or custom, the two complaints against Fowler create a question of fact concerning whet her 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 placedFowler and Hanson in different cars to identify the
source of complaints and warned the officers against fraternizing wit h minors on the very night that Fowler raped Andrews, there is no evidence that he t ook any disciplinary action against Fowler once he knew o f complaints against Fowler specifically. Two off icers submitted affidavits attesting that Price knew of Fowler's misconduct and took no action. Pric e admitted that he had heard locker-room-type talk about Fowler's relations with Andrews after th e rape, yet he took Fowler's word when Fowler denied the incident. When t old 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), b ut again he took no action to eit her discipline or investigate Fowler until he sought Fowler' s terminati on in early August 1991. We conclude that Andrews ha s 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 supervis e Fowler.

The failure to train allegation against Price in his individua l capacity fails for the same reasons articulated in the

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above discussion regarding municipal liability. The procedures were not inadeq uate and causation is lacking as well. We will not repeat th e discussion here.
Andrews also appears to argue that she was injured by Price's f ailure to investigate her rape. We find this claim to be without merit. While Price's inaction after learning of Andrews' rape may be continuing evidenc e of his attitude of tacit authorization or failur e to take remedial action,
no fur ther constitutional injury resulted to Andrews from this failure

. Andrews never reported the incident herself and although she instructed he r mot her to "press charges," she did not inform her mother of the exac t nature of the charge. Further, her mother decided not to pursue th e matter. While Price's failure to investigate the rape may have violated stat e law and common sense, it did not rise to the level of a separat e constitutional violation of Andrews' rights. Sh e 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 th e courts have recognized inadequate investigation as sufficient to state a civil rights claim unless there was another recognized constitutional righ t involved").

b.
The evidence Andrews offers in support of individual liability on the part of Mayor Merrill is insufficient to survive summary judgment. Merril l 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

### The affidavit of former police officer Greg Hanson makes a 2 

### 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 materia l fact.
16 dischargedfrom his employment with the police department. The evidence 2 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 th e basis of those complaints. This does not demons trate 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 a s articulated above. Accordingly, Andrews has created no genuine issue of material fact to supp ort 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 an d 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 o r ind irectly, any person or class of persons of the equa l protection of the laws, or of equal privileges and immunities under the laws." It must then assert that one or more of the consp irators (3) did, or caused to be done, "any act i n furtherance of the object of [the] conspiracy," whe reby 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."

### 17

Griffin v. Breckenridge , 403 U.S. 88, 102-03 (1971). The plaintiff must show t hat the conspiracy is fueled by some "class-based, invidiousl y discriminatory animus." Bray v. Alexandria Women's Health Clinic , 506 U.S

. 263, 268 (1993) (internal quotations omitted).

We concl ude that the district court's grant of summary judgment o n this cause of action was correct. There is no evidence of any agreement betwee n Price, Merrill, and city council members to violate Andrews '
con stitutional rights. There is no evidence of a discriminatory animu s toward wo men. There is evidence that one police officer engaged i n misconduct that caused injury to Andrews and that the chief of police migh t have been aware of problems with this officer and failed to remedy th e misconduct prior to Andrews' injury. There is no evidence that Price met with M errill and city council members about Fowler's misconduct unti l 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, th e plaintiff must demonstrate discriminatory purpose in that the defendants selected the particular course of action "`because of' not merely `in spit e of' its a dverse effects upon an identifiable group." Bray , 506 U.S. a t 272. Andrews has sub mitted no evidence to demonstrate that the city, the mayor, or Price chose their course of action rel ating to Fowler's behavior because of its effect on an identifiable group -- in this case, women. Th e district court did not err in granting summary judgment on Andrews ' § 1985(3) claim.

C.
Finally, Andrews contends that the district court erred in denyin g her motion to take additional depositions of remaining city

### 18

council members and other witnesses. See Fed. R. Civ. P. 30(a)(2)(A).
Under Rule 30(a)(2)(A), a party is e ntitled to up to ten depositions wit hout 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 permit ted without leave of court under Rule 30. Altho ugh some of these depositions were taken jointly for both th is and a related case, see Bell v. Fowler , No. 95-3571 (8th Cir

. Oct
. __, 1996), Andrews consented and participated in them (Andrews an d Bell share the same c ounsel). 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 summar y judgm ent to Price in his individual capacity and remand this claim fo r tri al. In all other respects, we affirm the judgment of the distric t court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.