Bonnie Bell v. Randy Alan Fowler , 99 F.3d 262 ( 1996 )

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No. 95-3571
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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. *
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Submitted: June 13, 1996
Filed: October 23, 1996
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Before HANSEN, ROSS, and JOHN R. GIBSON, Circuit Judges.
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HANSEN, Circuit Judge.
Bonnie Bell filed this action pursuant to 42 U.S.C. § 1983 and 42
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
Fowler. Bell also alleged several pendent South Dakota state law claims
based on the incident. The district court1 concluded that all of Bell's
claims are barred by the applicable statute of limitations and accordingly
granted summary judgment for the defendants. Bell appeals, arguing that
the defendants should be equitably estopped from asserting the statute of
limitations defense, that her § 1983 claim alleging the department's
failure to investigate her charges of sexual assault and her § 1985(3)
conspiracy claim are not barred by the applicable statute of limitations,
and that the district court erred in denying her motion for additional
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
police station under threats that he could charge her with operating a
motor vehicle while intoxicated if she did cooperate with his advances.
Fowler was later prosecuted for this assault, and the Supreme Court of
South Dakota affirmed his convictions for attempted second degree rape,
simple assault, and sexual contact. State v. Fowler, 552 N.W.2d 391 (S.D.
1996).
On July 13, 1994, Bell commenced the present civil rights action
against Fowler, former Chief of Police Scott Price, various unknown police
officers, Mayor William Merrill, and the city of North Sioux City. Bell
asserted a § 1983 cause of action, claiming that the defendants subjected
her to excessive force through the sexual abuse and the threats of criminal
charges, and that they
1
The Honorable John B. Jones, United States District Judge
for the District of South Dakota.
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interfered with her right to seek redress for her injuries by covering up
the officer's misconduct. Bell asserted a § 1985(3) cause of action,
claiming that the defendants conspired to deprive her of equal protection
of the laws. Bell also asserted South Dakota state law claims of assault
and battery, intentional infliction of severe emotional distress, and
negligence.
The district court granted the defendants' motion for summary
judgment, concluding that Bell's claims are barred by the applicable three-
year South Dakota statute of limitations. In so ruling, the district court
rejected Bell's arguments that the defendants should be equitably estopped
from asserting the statute of limitations. Also, the district court denied
in part Bell's motion to take additional depositions. Bell appeals.
II.
"We review the district court's grant of summary judgment de novo,
applying the same standard as the district court and examining the record
in the light most favorable to the nonmoving party." Barge v. Anheuser-
Busch, Inc., 87 F.3d 256, 258 (8th Cir. 1996). Summary judgment is
appropriate when the record reveals that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter
of law. Disesa v. St. Louis Community College, 79 F.3d 92, 94 (8th Cir.
1996). See Fed. R. Civ. P. 56(c). Summary judgment is also appropriate
when the plaintiff has failed to make a sufficient showing of the existence
of an essential element of her case. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
A.
Bell contends that the district court erred in concluding that her
action is barred by the statute of limitations, though she
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concedes that her state law assault and battery claim is barred by a two-
year state law statute of limitations. Neither § 1983 nor § 1985(3)
contains a specific statute of limitations. The Supreme Court has
instructed courts to apply the most analogous state 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 civil
rights actions must be brought within three years after the alleged
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 morning
hours of July 7, 1991. Bell filed the instant action on July 13, 1994, six
days beyond the applicable three-year limitations period. Thus, the
straightforward application of the limitations period results in a
conclusion that Bell's cause of action is time-barred to the extent her
claims rest on the actual sexual assault.
Bell attempts to defeat the limitations period by asserting that the
defendants should be estopped from raising the statute of limitations
defense by reason of their misleading conduct toward her. She claims that
during a May 1994 interview with then Police Chief Ensley concerning the
assault, she informed Ensley that she did not know 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 date 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
that the assault occurred in the early morning hours of July 7, 1991.
Hallwas informed Ensley of her error prior to the expiration of the statute
of limitations in this case, but Ensley did not relay this information to
Bell. Bell contends that
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the defendants should be equitably estopped from asserting the statute of
limitations defense because Ensley failed to provide her with the correct
date of the dance.
The district court rejected Bell's argument, concluding that Bell was
not entitled to equitable estoppel under either South Dakota law, which the
court determined required a showing of fraud, or federal law. Bell argues
that only federal equitable estoppel principles apply and that in any
event, the district court incorrectly required a showing of fraud under
South Dakota law. Our reading of the record reveals that the district
court rejected Bell's equitable estoppel claim on both federal and state
grounds, finding no basis for the claim under either on the facts of this
case.2
This court has not yet had occasion to determine whether federal
courts should apply federal or state equitable estoppel principles when
borrowing a state statute of limitations in a civil rights action. The
parties correctly observe that courts have
2
The district court actually stated that there is no basis
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.
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reached differing conclusions. Compare Smith v. City of Chicago, 951 F.2d
834, 841 (7th Cir. 1992) (holding federal courts, when borrowing state
statutes of limitations, should apply the state doctrine of equitable
tolling but the federal doctrine of equitable estoppel) and Cange v.
Stotler & Co., 826 F.2d 581, 585-86 (7th Cir. 1987) (same) with Keating v.
Carey, 706 F.2d 377, 382 (2d Cir. 1983) (holding federal courts should
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 contrary
to Supreme Court precedent).3 We need not resolve the issue in this case,
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 equitable estoppel, we need not reconcile that conflict in
this case. Bell argues that, contrary to the district court's
determination, fraud is not a necessary element of equitable estoppel in
South Dakota. We agree with her observation that the Supreme Court of
South Dakota has divergent lines of cases defining the elements of
equitable estoppel. One line of cases requires fraud, false
representations, or concealment of material
3
We note that, although we need not resolve the issue in
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.").
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facts, while another line of cases requires only that a party be misled to
his detriment by statements 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 Court of South Dakota held that fraud is a necessary element of
equitable 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), the court stated as follows:
"[F]alse representations or concealment of
material facts must exist, the party to whom it was
made must have been without knowledge of the real
facts, the representations or concealment must have
been with the intention that it should be acted upon,
and the party to whom it was made must have relied
thereon to his prejudice or injury. There can be no
estoppel if any of these essential elements are
lacking, or if any of them have not been proved by
clear and convincing evidence . . . .
An essential element of equitable estoppel is
fraud. There must be some intended deception in the
conduct or declaration of the party to be estopped or
such gross negligence on his part as to amount to
constructive fraud. . . ."
Id. (quoting Century 21 Associated Realty v. Hoffman, 503 N.W.2d 861, 866
(S.D. 1993)) (alteration in original). See also Erickson v. County of
Brookings, 541 N.W.2d 734, 737 (S.D. 1996) (noting that absent a duty to
speak there must be intended deception, not simply "innocent silence or
inaction," in order for equitable estoppel to apply); Smith v. Neville, 539
N.W.2d 679, 682 (S.D. 1995) (same).
Even assuming fraud is not necessary in every equitable estoppel
case, the situation at hand is closely akin to those where intended
deception has been required. The South Dakota courts have
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clearly held 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 equitable
estoppel may be applied against public entities only in those instances in
which the entity or its employees actively mislead or deceive an individual
with the intent that the individual alter his position to his detriment.
See Erickson, 541 N.W.2d at 737; Neville, 539 N.W.2d at 682. In other
words, 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 issue
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 date
to Ensley, Hallwas did not know the purpose of his question but only that
the date 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 the
fact that Hallwas discovered the error prior to the time that the statute
of limitations expired, but Hallwas did provide the correct date to Ensley,
and again, there is no evidence that Hallwas intended to deceive Bell.
Similarly, there is no evidence that Ensley intended to deceive Bell when
he provided her the erroneous date. In fact, the record undermines any
claim that Ensley attempted to deceive her. Ensley was investigating
Fowler's criminal act, and he actively encouraged Bell to consult with
outside counsel for the purposes of filing a civil lawsuit. Accordingly,
Bell has failed to show the existence of a material factual issue
concerning whether the city, through Ensley and
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Hallwas, sought to deceive Bell by providing the wrong date of the street
dance. Therefore, Bell has failed to establish a material question of fact
on the issue of fraud, a necessary element of South Dakota's equitable
estoppel doctrine.
Additionally, even applying the lower South Dakota estoppel standard,
which permits use of the doctrine on the basis of merely misleading
conduct, Bell's claim fails. The South Dakota courts have historically
held that equitable estoppel is to be applied only in cases where the party
asserting the estoppel was without knowledge of the facts at issue and was
also without a means of obtaining knowledge of those facts. See First
Church of Christ Scientist v. Revell, 2 N.W.2d 674, 678 (S.D. 1942). In
this case, as the victim of Fowler's attack, Bell had direct access to and
personal knowledge of the facts at issue, such that she can be properly
charged with knowledge of when her claim arose. Given her first-hand
knowledge of the incident, with due diligence, Bell could have determined
the true date on which the attack occurred well before the statute of
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 contact with Bell both before
and after the date that 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 in 1991, 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 could
have contacted 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 the
date of the dance. Bell never availed herself of any of these methods by
which she could have quickly discovered the
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correct date of the attack. Because Bell possessed all knowledge of the
assault and numerous easily accessible means were available to Bell to
determine the exact date that the assault occurred well before the
expiration of the statute of limitations, she has failed to present
evidence of a genuine issue of material fact concerning whether she
reasonably relied on Ensley's representation of the date of the street
dance. Accordingly, equitable estoppel is not appropriate under South
Dakota law.
Likewise, the federal law of equitable estoppel, if applicable, does
not afford Bell any relief from the statute of limitations.4 In order for
a defendant to be equitably estopped from asserting the statute of
limitations under federal law, the party requesting the estoppel must show
that the defendants have engaged in "affirmative conduct . . . that was
designed 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 when
defendant engages in a "deliberate design" intended to mislead the
plaintiff; in other words, when plaintiff is "lulled or tricked" into
taking certain actions based on defendant's conduct or actions). This
definition is synonymous with South Dakota's more strenuous estoppel
definition, which requires fraud. We noted above that Bell has failed to
show that the defendants' actions in this case were in any manner
fraudulent. Accordingly, even if federal estoppel principles apply, Bell
would not be entitled to relief from the three-year statute of limitations
which
4
We note that, at least with respect to the federal
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.
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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 investigate her charges survives the statute of limitations, because
this cause of action did not arise until sometime in August 1991. In
August 1991, the chief 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 in a violation of her constitutional rights and severe
emotional distress.
The individual defendants may be subject to § 1983 liability for
failing to adequately respond or investigate complaints of sexual
misconduct by police department employees if they received notice of a
pattern of unconstitutional conduct by subordinates, demonstrated
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. Miller, 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 or
custom" of failing to act upon prior complaints of unconstitutional
conduct, Monell v. Dep't of Social Servs. of the City of New York, 436 U.S.
658, 694 (1978), provided the unconstitutional conduct of the city's
employees was widespread and persistent, was met with deliberate
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 this
case, there must be some evidence of unconstitutional misconduct or a
custom of failing to
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act on complaints that caused Bell harm subsequent to July 13, 1991 (to be
within three years of when she filed her cause of action), in order to
satisfy the statute of limitations.
Viewing the record in the light most favorable to Bell reveals the
following: Officer Hanson walked into the police station on the night
Fowler was assaulting Bell. He saw Bell and Fowler in the same room
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. Hanson reported the incident to the chief of police at
the time, Scott Price. Price responded, "I wouldn't doubt it, that little
weasel," referring to Fowler. (Appellant's App. at 188.) Price never
investigated the matter and never contacted Bell about the incident.
Price presented a report to the mayor and the city council in August
1991, evaluating Fowler's work and informing them of Fowler's misconduct.
The memo indicated that Fowler had engaged in sexual misconduct with Kristi
Andrews (who also brought a civil case against the appellants), that Fowler
had been attempting to date a 17-year-old woman against Price's orders, and
that there had been complaints from other young women that Fowler had
stopped them and then harassed them or made sexual advances toward them.
The memo did not mention Fowler's assault of Bell. After being presented
with this information, the council immediately requested Fowler to resign,
and he did.
It bears repeating that any claim based upon the assault itself is
barred by the applicable statute of limitations. Bell must demonstrate the
existence of a separate constitutional violation, occurring within the
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, we affirmed a § 1983 jury verdict against the city of
North Little Rock for failing to investigate prior complaints that an
officer had been committing acts of violence and sexual misconduct, where
the failure to act resulted in a sexual assault on the plaintiff. Here,
Bell contends that she suffered a separate constitutional injury, aside
from the assault, when Price and other defendants 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 separate constitutional injury from the failure to investigate her
assault. Bell testified that she did not pursue the matter herself. She
did not report the incident, except to respond to Hanson's inquiry, and
although she indicated to Hanson her willingness to make a written
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
matter because her friends advised her that such complaints are very
difficult on the victim. Since she chose not to formally make a complaint,
any failure to investigate could not have caused her alleged severe
emotional distress. That injury could only stem from the assault itself,
a claim that is barred by the statute of limitations. Given this context,
we agree with the district court that any failure to investigate that
occurred within the applicable limitations period does not rise to the
level of a constitutional violation against Bell.
C.
Bell's § 1985(3) conspiracy cause of action states that defendants
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
after complaints against Fowler surfaced prior to Bell's assault and by
taking no remedial action after her assault.
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."
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).
Viewing the evidence in the light most favorable to Bell, there is
some evidence tending to show that Price, the mayor at some point, and
possibly some city council members may have known of complaints against
Fowler, and they took no remedial action against him prior to the time
Fowler assaulted Bell. This claim of an alleged conspiracy, standing
alone, is barred by the statute of limitations. Bell contends that acts
in furtherance of this alleged conspiracy continued to occur after her
assault, and therefore, her cause of action is not time-barred. We
disagree.
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Bell correctly states that the limitations period runs "from the
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 injured
as a result of the alleged conspirators' inaction after the date of her
assault. As noted above, in August 1991, Price notified the mayor and
council members of complaints that Fowler had engaged in sexual misconduct
with Kristi Andrews and other young women, but this is not an act in
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 to
Bell. Bell has demonstrated no acts in furtherance of the alleged
conspiracy within the limitations period that resulted in injury to her.
Accordingly, the district court did not err in dismissing 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 council
members. She claims that under Fed. R. Civ. P. 30(a)(2)(A), she is
entitled to ten depositions but was not allowed to take them. We find no
abuse of discretion.
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 Bell was permitted to
take twelve depositions, two more than permitted without leave of court
under Rule 30. Although some depositions were taken jointly for both this
and a related case, Bell consented and participated in them. Additionally,
Bell presented no good reason why the additional depositions were
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 the
request. There is no indication that deposing two additional council
members, 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 been
cumulative and would have served no proper purpose. The district court
committed no abuse of discretion in denying Bell's request.
III.
For the reasons outlined above, we affirm the judgment of the
district court granting summary judgment to the defendants.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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