_____________ No. 95-3571

_____________ Bonnie Bell, * * Plaintiff-Appellant, * * v. * Appeal from the United States * District Court for the Randy Alan Fowler, individually * District of South Dakota. and in his capacity as an * officer with the City of North * Sioux City, South Dakota; * 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.

Bonnie Be ll filed this action pursuant to 42 U.S.C. § 1983 and 4 2 U.S.C. § 1985(3), based on an incident where she was sexually assaulted by former police officer Randy Alan Fowler, and the other defendants ' subsequent failure to investigate her charges against

### The Honorable John B. Jones, United States District Judge 1 

### for the District of South Dakota.
-2- Fowler. Bell also alleged several pendent South Dakota state law claims based on the incident. The district court concluded that all of Bell' s 1 claims are barred by the applicable statute of l imitations and accordingly granted summary judgment for the defendants. Bell appeals, arguing that the defendants shouldbe equitably estopped from asserting the statute of limita tions defense, that her § 1983 claim alleging the department' s failu re to investigate her charges of sexual assault and her § 1985(3 ) conspiracy claim are not barred by the applicable statute of limitations, and t hat the district court erred in denying her motion for additiona l discovery. We affirm.

I.
In the early morning hours of July 7 , 1991, Bonnie Bell was sexually assaulted by Randy Fowler, who at that time was a uniformed police officer in North Sioux City, South Dakota. Fowler sexually assaulted Bell at the polic e station under threats that he could charge her with operating a mot or vehicle while intoxicated if she did cooperate with his advances

. Fowle r was later prosecuted for this assault, and the Supreme Court o f South Dakota affirmed his convictions for attempted second degree rape , simple assault, and sexual contact. State v. Fo wler , 552 N.W.2d 391 (S.D. 1996).

On July 13, 1994, Bell commenced the present civil rights actio n against Fowler, former Chief of Police Scott Pri ce, various unknown police officers, Mayor William Merrill, and the city of North Sioux City. Bell asserted a § 1983 cau se of action, claiming that the defendants subjected her to excessive force through the sexual abuse and the threats of crimina l charges, and that they

### -3-

interfered with her r ight to seek redress for her injuries by covering up the office r's misconduct. Bell asserted a § 1985(3) cause of action , claiming that the def endants conspired to deprive her of equal protection of the laws. Bell al so asserted South Dakota state law claims of assault and bat tery, intentional infliction of severe emotional distress, an d negligence.

The district court granted the defendants' motion for summar y judgment, concluding that Bell's claims are barred by the applicable three

year South Dakota statute of limitations. In so ruling, the district cour t rejected Bell's arguments that the defendants sh ould be equitably estopped from asserting the statute of limitations. Also, the district court denie d in part Bell's motion to take additional depositions. Bell appeals.

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 inthe 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).

A.

Bell con tends that the district court erred in concluding that he r action is barred by the statute of limitations, though she

### -4-

concedes that her sta te law assault and battery claim is barred by a twoyear s tate law statute of limitations. Neither § 1983 nor § 1985(3 ) contains a specific statute of limitations. The Supreme Court ha s instructed courts to apply the most analogous st ate statute of limitations to claims made under these provisions. Wilson v. Garcia , 471 U.S. 261 , 266-68 (1985). In South Dakota, a specific statute provides that civi l rights actions must be brought within three years after the allege d constitutional deprivation occurred or the action will be barred. See S.D
. Codified Laws Ann. § 15-2-15.2 (Michie Supp. 1996).

It is undisputed that Fowler assaulted Bell in the early mornin g hours of July 7, 1991. Bell filed the instant action on July 13, 1994, si x days b eyond the applicable three-year limitations period. Thus, th e straightforward application of the limitations period results in a conclusion that Bell's cause of action is time-barred to the extent he r claims rest on the actual sexual assault.
Bell attempts to defeat the limitati ons period by asserting that the defend ants should be estopped from raising the statute of limitation s defense by reason of their misleading conduct to ward her. She claims that during a May 1994 interview with then Police Chief Ensley concerning the assault, she informed Ensley that she did not kn ow the date of the attack, but she knew that it had occurred immediately after a street dance. Bell contends that Ensley contacted the city finance officer, Liesel Hallwas, who said that the dat e of the dance was July 17, 1991; Bell also contends that Ensley in turn provided her with this date. Hallwas later discovered , however, that in fact the date of the dance was July 6, 1991. This means tha t the assault occurred in the early morning hours of July 7, 1991

. Hallwas informed Ensley of her error prior to the expiration of the statut e of limitations in thi s case, but Ensley did not relay this information to Bell. Bell contends that

### The district court actually stated that there is no basis 2 

### for "equitable tolling" in this case. Equitable estoppel and equitable tolling are two distinct concepts often blurred by inconsistent use of the terminology. "Our court has occasionally used the term equitable tolling as a blanket phrase which included equitable estoppel as well." Dring v. McDonnell Douglas Corp. , 58 F.3d 1323, 1328 (8th Cir. 1995). As a rule, however, "`[e]quitable tolling is appropriate when the plaintiff, despite all due diligence, is unable to obtain vital information bearing on the existence of his claim.'" Id. (quoting Chakonas v. City of Chicago , 42 F.3d 1132, 1135 (7th Cir. 1994)) (alteration in original). Equitable tolling does not require any misconduct on the part of the defendant. Id. On the other hand, the doctrine of equitable estoppel focuses on the defendant's conduct. Id. at 1329. Equitable estoppel presupposes that the plaintiff knows of the facts underlying the cause of action but delayed filing suit because of the defendant's conduct. Id. Bell correctly refers to the doctrine of equitable estoppel because she was aware of the existence of her claim and her argument focuses on the conduct of a defendant, the city through its police chief and finance officer, which she contends caused her to delay filing her cause of action.
-5- the defendants shouldbe equitably estopped from asserting the statute of limitations defense b ecause Ensley failed to provide her with the correct date of the dance.
The district court rejected Bell's argument, concluding that Be ll was not entitled to equitable estoppel under either South Dakota law, which th e court determined required a showing of fraud, or federal law. Bell argues that on ly federal equitable estoppel principles apply and that in an y
eve nt, the district court incorrectly required a showing of fraud unde r SouthDakota law. Our reading of the record reveals that the distric t court rejected Bell's equitable estoppel claim on both federal and state grounds, finding no b asis for the claim under either on the facts of this
case. 2

Th is court has not yet had occasion to determine whether federa l courts should apply federal or state equitable estoppel principles whe n borrowing a state statute of limitations in a civil rights action. Th e parties correctly observe that courts have

### We note that, although we need not resolve the issue in 3 

### this case, the Supreme Court has strongly indicated that federal courts should apply both the state's equitable tolling and equitable estoppel principles when it borrows the state's statute of limitations. See Wilson v. Garcia , 471 U.S. 261, 269 (1985) (state law governs "the length of the limitations period, and closely related questions of tolling and application"); Board of Regents v. Tomanio , 446 U.S. 478, 484-86 (1980) (federal courts should borrow forum state's most analogous statute of limitations as well as its body of tolling rules); Johnson v. Railway Express Agency, Inc. , 421 U.S. 454, 463-65 (1975) ("In virtually all statutes of limitations the chronological length of the limitations period is interrelated with provisions regarding tolling, revival, and questions of application.").
-6- reached differing conclusions. Compare Smith v. City of Chicago , 951 F.2d 834, 841 (7th Cir. 1992) (holding federal courts, when borrowing stat e statut es of limitations, should apply the state doctrine of equitabl e toll ing but the federal doctrine of equitable estoppel) and Cange v
. Stotler & Co. , 826 F.2d 581, 585-86 (7th Cir. 19 87) (same) with Keating v. Carey , 706 F.2d 377, 382 (2d Cir. 1983) (holding federal courts shoul d apply the state's equitable estoppel doctrine when borrowing a state' s statute of limitations). See also Cange , 826 F.2d at 599-600 (Easterbrook , J., concurring) (observing that Seventh Circuit's approach appears contrar y to Supreme Court precedent). We ne ed not resolve the issue in this case, 3 because we conclude, as did the district court, that equitable estoppel is not available to Bell under either South Dakota law or federal equitable estoppel principles.

Likewise, while we recognize a conflict within South Dakota' s application of equita ble estoppel, we need not reconcile that conflict in this c ase. Bell argues that, contrary to the district court' s determination, fraud is not a necessary element of equitable estoppel in SouthDakota. We agree with her observation that the Supreme Court o f South Da kota has divergent lines of cases defining the elements o f equita ble estoppel. One line of cases requires fraud, fals e representations, or concealment of material

### -7-

facts, while another line of cases requires only that a party be misled to his detriment by stat ements or actions of the other party. See Harmon v. Christy Lumber, Inc. , 402 N.W.2d 690, 693 (S.D. 1987). Most recently, the Supreme C ourt of South Dakota held that fraud is a necessary element o f equitab le estoppel. See Crouse v. Crouse , 1996 WL 428003, at *4 (S.D

. July 31, 1996) ("Essential to equitable estoppel is the presence of fraud, false representations, or concealment of material facts."). In Kahler , Inc. v. Weiss , 539 N.W.2d 86, 91 (S.D. 1995), th e court stated as follows:

"[F]alse representations or concealment o f mat erial facts must exist, the party to whom it wa s made m ust have been without knowledge of the rea l facts, the representations or concealment must hav e been w ith the intention that it should be acted upon, and t he party to whom it was made must have relie d thereon to his prejudice or injury. There can be n o es toppel if any of these essential elements ar e lacki ng, or if any of them have not been proved b y clear and convincing evidence . . . .
An essential element of equitable estoppel i s fra ud. There must be some intended deception in th e conduc t or declaration of the party to be estopped or suc hgross negligence on his part as to amount t o constructive fraud. . . ."

Id. (quoting Century 21 Associated Realty v. Hof fman , 503 N.W. 2d 861, 866 (S.D. 1993)) (alteration in original). See also Erickson v. County o f Brookings , 541 N.W.2d 734, 737 (S.D. 1996) (noting that absent a duty to spe ak there must be intended deception, not simply "innocent silence o r inaction," in order for equitable estoppel to apply); Smith v. Neville , 53 9 N.W.2d 679, 682 (S.D. 1995) (same).

Evenassuming fraud is not necessary in every equitable estoppe l case, the situation at hand is closely akin to those where intende d deception has been required. The South Dakota courts have

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cle arlyheld that equitable estoppel should be used sparingly against a public entity. See Neville , 539 N.W. 2d at 682; Hanson v. Brookings Hosp. , 469 N.W.2d 826, 829 (S.D. 1991). These cases indicate that equitabl e estoppel may be applied against public entities only in those instances in which the entity or its employees actively mislead or deceive an individua l withthe intent that the individual alter his position to his detriment. See Eric kson , 541 N.W.2d at 737; Neville , 539 N.W.2d at 682. In othe r
wor ds, these cases suggest that for equitable estoppel to apply to a public entity, that entity or its employees must have engaged in fraud.

Bell has presented no evidence to create a material factual issu e that the City or any of its employees, specifically Ensley and Hallwas , intended to deceive Bell when they initially provided her with the wrong date of the street dance. At the time that Hallwas provided the wrong dat e to Ensley, Hallwas di d not know the purpose of his question but only that the dat e was relevant to an investigation that Ensley was conducting

. Moreover, even if she knew that the date would be provided to Bell, there is no indication that Hallwas was aware that Bell would rely exclusively on the date provided to determine the limitations period for a civil case
or that Hallwas knew of the three-year statute. Bell makes much of th e fact that Hallwas dis covered the error prior to the time that the statute of limitations expired, but Hallwas did provide the correct date to Ensley , and a gain, there is no evidence that Hallwas intended to deceive Bell

. Similarly, there is n o evidence that Ensley intended to deceive Bell when he provid ed her the erroneous date. In fact, the record undermines an y claimt hat Ensley attempted to deceive her. Ensley was investigatin g Fowler's criminal act, and he actively encouraged Bell to consult wit h outside counsel for t he purposes of filing a civil lawsuit. Accordingly, Bell has failed to show the existence of a material factual issu e concerning whether the city, through Ensley and

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Hallwas, sought to de ceive Bell by providing the wrong date of the street dance. Therefore, Bell has failed to establish a material question of fac t
on th e issue of fraud, a necessary element of South Dakota's equitabl e estoppel doctrine.
Additionally, even applying the lower South Dakota estoppel sta ndard, which per mits use of the doctrine on the basis of merely misleadin g
con duct, Bell's claim fails. The South Dakota courts have historicall y held that equitable estoppel is to be applied only in cases where the part y asserting the estoppel was without knowledge of the facts at issue and was also without a means of obtaining knowledge of those facts. See Firs t Churchof Christ Scientist v. Revell , 2 N.W.2d 674, 678 (S.D. 1942). In this case, as the victim of Fowler's attack, Bel l had direct access to and personal knowledge of the facts at issue, such that she can be properl y charged wi th knowledge of when her claim arose. Given her first-han d knowledge of the inci dent, with due diligence, Bell could have determined the true date on which the attack occurred well before the statute o f limitations expired on July 7, 1994. Fowler was charged criminally on May 6, 1994 , with attempted rape in the second degree for his July 7, 1991 , assault on Bell. State v. Fowler , 1996 WL 350111 (S.D. June 26, 1996)

. Presumably, law enforcement officers were in con tact with Bell both before and after the date th at Fowler was charged, and in any event the charging document was a public record. Further, Bell certainly was at least aware that the assault took place on a summer night in1991, that a street dance had been held, that a band known as "The Rumbles " had played that evening, and that she had attended the dance with her own sister. Bell simply coul d have cont acted the band or her sister to determine the date. Moreover , Hallwas indicated that the date of the dance was in a local newspaper , which Bell could reasonably have searched out and examined to determine th e date of the dance. B ell never availed herself of any of these methods by which she could have quickly discovered the

### We note that, at least with respect to the federal 4 

### government, "[w]e have not decided whether equitable estoppel is available against the government in a civil case." United States v. French , 46 F.3d 710 (8th Cir. 1995). We simply assume for the purposes of discussion that it could apply here as against a city and its employees.
-10- correct date of the attack. Because Bell possessed all knowledge of the assault and numerous easily accessible means were available to Bell t o determin e the exact date that the assault occurred well before th e expiration of the statute of limitations, she has failed to presen t evidence of a genuine issue of material fact concerning whether sh e reasonablyrelied on Ensley's representation of the date of the stree t dance. Accordingly, equitable estoppel is not appropriate under Sout h Dakota law.
Likewise, the federal law of equitab le estoppel, if applicable, does not afford Bell any relief from the s tatute of limitations. In order for 4

a defend ant to be equitably estopped from asserting the statute o f limitations under federal law, the party request ing the estoppel must show that the defendants have engaged in "affirmative conduct . . . that wa s des igned to mislead or was unmistakably likely to mislead" a plaintiff

. Garfield v. J.C. Nichols Real Estate , 57 F.3d 662, 666 (8th Cir.), cert. denied , 116 S. Ct. 380 (1995). See also Dring v . McDonnell Douglas Corp. , 58 F.3d 1323, 1329 (8th Cir. 1995) (equitable estoppel applicable whe n defend ant engages in a "deliberate design" intended to mislead th e plainti ff; in other words, when plaintiff is "lulled or tricked" int o taking certain actions based on defendant's conduct or actions). Thi s de finitionis synonymous with South Dakota's more strenuous estoppe l definition, which requires fraud. We noted above that Bell has failed to show tha t the defendants' actions in this case were in any manne r fraudulent. Accordin gly, even if federal estoppel principles apply, Bell would not be entitled to relief from the three-y ear statute of limitations which

### -11-

bars her federal and state law claims that arise out of Fowler's assault on Bell.

B.
Bell argues that her § 1983 claim alleging that the defendants failed to inv estigate her charges survives the statute of limitations, becaus e this caus e of action did not arise until sometime in August 1991. I n August 1991, the chie f of police at the time, Scott Price, knew of Bell's allegations against Fowler, and did nothing to investigate the incident. Bell contends that the mayor and council members also knew and failed to act, all resulting ina violation of her constitutional rights and severe emotional distress.

Th e individual defendants may be subject to § 1983 liability fo r fai ling to adequately respond or investigate complaints of sexua l misconduct by police department employees if they received notice of a pat ternof unconstitutional conduct by subordinates, demonstrate d deliberate indifference to or tacit authorization of the conduct, failed to take sufficient remedial action, and the plaintiff was injured by the conduct. Larson v. M iller , 76 F.3d 1446, 1453 (8th Cir. 1996) (en banc); Jane Doe A. v. Special Sch. Dist. , 901 F.2d 642, 645 (8th Cir. 1990). The City may be subject to § 1983 liability on the showing of a "policy o r custom " of failing to act upon prior complaints of unconstitutiona l conduct, Monell v. Dep't of Social Servs. of the City of New York , 436 U.S

. 658, 6 94 (1978), provided the unconstitutional conduct of the city' s employ ees was widespread and persistent, was met with deliberat e indifference or tacit authorization of the city's policymaking officials, and resulted in constitutional injury. Thelma D. v. Board of Educ. , 934 F.2d 929, 932-33 (8th Cir. 1991); Jane Doe A. , 901 F.2d at 645-46. In thi s case, t here must be some evidence of unconstitutional misconduct or a custom of failing to

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act on complaints that caused Bell harm subseque nt to July 13, 1991 (to be within t hree years of when she filed her cause of action), in order t o satisfy the statute of limitations.
Viewing the record in the light most favorable to Bell reveals th e follo wing: Officer Hanson walked into the police station on the nigh t Fowler was assaulting Bell. He saw Bell and Fowler in the same roo m together, but he was not aware of the assault at the time. About a week or two later, Hanson approached Bell and asked her what had happened that night. Bell told him of the assault and indicated that she would like to make a complaint. Ha nson reported the incident to the chief of police at the time, Scott Price. Price responded, "I woul dn't doubt it, that little
wease l," referring to Fowler. (Appellant's App. at 188.) Price neve r investigated the matter and never contacted Bell about the incident.
Price presented a report to the mayo r and the city council in August 1991, evaluating Fowl er's work and informing them of Fowler's misconduct. The memo indicated that Fowler had engaged in sexual misconduct with Krist i Andrews (who also brought a civil case against the appellants), that Fowle r had been attempting to date a 17-year-old woman against Price's orders, an d that there had been complaints from other young women that Fowler ha d stopped them and then harassed them or made sexual advances toward them. The memo did not ment ion Fowler's assault of Bell. After being presented with this information, the council immediately r equested Fowler to resign, and he did.

It bear s repeating that any claim based upon the assault itself i s barred by the applicable statute of limitations. Bell must demonstrate th e exis tence of a separate constitutional violation, occurring within th e applicable limitations period, in order for any claim to survive summary judgment. For this reason,

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Bell's case is distinguishable from Parrish v. Luckie , 963 F.2d 201 (8th Cir. 1992). There, w e affirmed a § 1983 jury verdict against the city of North L ittle Rock for failing to investigate prior complaints that a n officer had been comm itting acts of violence and sexual misconduct, where the failure to act resulted in a sexual assault on the plaintiff. Here, Bell c ontends that she suffered a separate constitutional injury, asid e from the assault, when Price and other defendant s failed to investigate or act on her complaint that Fowler had assaulted her. She claims that she suffered emotional distress from the failure to investigate.
After reviewing the record, we conclude that Bell has failed to state
a sepa rate constitutional injury from the failure to investigate he r assault. Bell testif ied that she did not pursue the matter herself. She did not report the incident, except to respond to Hanson's inquiry, an d although she indicated to Hanson her willingness to make a writte n statement, Bell never did so. She testified that the defendants did not prevent her from making a complaint but that she chose not to pursue the matt er because her friends advised her that such complaints are ver y difficult on the victim. Since she chose not to formally make a complaint , any failure to investigate could not have caused her alleged sever e emotional distress. That injury could only stem from the assault itself, a claim that is barred by the statute of limitat ions. Given this context,
we agree w ith the district court that any failure to investigate tha t occurred within the applicable limitations period does not rise to th e level of a constitutional violation against Bell.

C.

Bell's § 1985(3) conspiracy cause of action states that defendant s Price (chief of police at the time Fowler was a police officer), Merrill (mayor of North Sioux City who appointed Fowler

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as full-time officer) , and city council members conspired to deprive Bell of her right to equal protection of the laws by taking no remedial action aft er complaints against Fowler surfaced prior to Bell's assault and b y taking no remedial action after her assault.
To prove a § 1985(3) claim:

[A] co mplaint must allege that the defendants did (1) "co nspire . . ." (2) "for the purpose of depriving , either directly or indirectly, any person or class of per sons of the equal protection of the laws, or o f equal privileges and immunities under the laws." I t must t hen assert that one or more of the conspirators (3) did, or caused to be done, "a ny act in furtherance of the object of [the] conspiracy," whereby anothe r was (4a) "injured in his person or property" or (4b ) "d eprived of having and exercising any right o r privilege of a citizen of the United States."

Griffinv. 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).
Viewing the evidence in the light most favorable to Bell, there i s
some evidence tending to show that Price, the mayor at some point, an d pos siblysome city council members may have known of complaints agains t Fowler, and they took no remedial action against him prior to the tim e Fowler assaulted Bell. This claim of an alleged conspiracy, standin g alone, is barred by the statute of limitations. Bell contends that acts infurtherance of this alleged conspiracy continued to occur after he r assault, and therefore, her cause of action is not time-barred. W e disagree.

### -15- Bell correctly states that the limitations period runs "from th e
occurrence of the last overt act resulting in damage to the plaintiff. " Buford v. Tremayne , 747 F.2d 445, 448 (8th Cir. 1984) Contrary to Bell's assertion, however, she has not presented any evidence that she was injure d
as a resu lt of the alleged conspirators' inaction after the date of he r assault. As noted above, in August 1991, Price notified the mayor an d council members of complaints that Fowler had en gaged in sexual misconduct with Krist i Andrews and other young women, but this is not an act i n furtherance of the alleged conspiracy. Price was requesting that Fowler be discharged, and the mayor and council members took remedial action , asking Fowler to resign. Fowler resigned, and no further harm came t o Bel l. Bell has demonstrated no acts in furtherance of the allege d conspiracywithin the limitations period that resulted in injury to her. Accordingly, the district court did not err in d ismissing Bell's § 1985(3) conspiracy claim.

D.
Finally, Bell contends that the district court erred in denying her motion to take additional depositions of two North Sioux City counci l members. She claims that under Fed. R. Civ. P. 30(a)(2)(A), she i s entitled to ten depos itions but was not allowed to take them. We find no abuse of discretion.
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 Bell was permitted to tak e twelve depositions, two more than permitted without leave of cour t under Rule 30. Although some depositions were t aken jointly for both this and a related case, Bell consented and participated in them. Additionally , Bell p resented no good reason why the additional depositions wer e necessary. Bell had already deposed eight North Sioux City council

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members, the mayor, and a former police chief at the time that she made th e request
. There is no indication that deposing two additional counci l
mem bers, one of whom was not a council member until after Fowler' s discharge, would have revealed anything other than what Bell had already obtained. In short, the additional depositions simply would have bee n cumulative and would have served no proper purpose. The district cour t committed no abuse of discretion in denying Bell's request.

III.

For the reasons outlined above, we affirm the judgment of th e district court granting summary judgment to the defendants.

A true copy.

Attest:

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