_____________

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. 
2

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
3

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
4

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 seconddegree 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,
5

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. AnheuserBusch, 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). 
6

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).
7

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
8

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
9

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
10

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
11

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
 Fowler had been diagnosed with an adjustment disorder and an 1

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

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. The city's failure to discover a dishonest statement on

1

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
13

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. 
14

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
15

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
 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 material

fact. 

16

discharged from 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 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." 
17

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
18

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.