Horocofsky v. City of Lawrence, Kansas

Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS July 24, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ BOBBIE JO HOROCOFSKY, Plaintiff - Appellant, v. No. 25-3024 CITY OF LAWRENCE, KANSAS; CHARLES B. COTTENGIM; KIMBERLEE A. NICHOLSON, Defendants - Appellees. _________________________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 2:20-CV-02529-EFM) _________________________________ Cheryl A. Pilate, Morgan Pilate LLC, Kansas City, Missouri (Sarah A. Brown, Brown, Curry & Duggan, LLC, Kansas City, Missouri, with her on the briefs), for Plaintiff- Appellant. Michelle R. Stewart, Hinkle Law Firm, LLC, Lenexa, Kansas, for Defendants-Appellees. _________________________________ Before HOLMES, Chief Circuit Judge, HARTZ, Circuit Judge, and GARCIA, * District Judge. _________________________________ HARTZ, Circuit Judge. _________________________________ The Honorable Matthew L. Garcia, District Judge, United States District * Court, District of New Mexico, sitting by designation.  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 2 Plaintiff Bobbie Jo Horocofsky alleges that she was raped by a law-school classmate. But officers of the City of Lawrence Police Department (LPD) ended up investigating her for filing a false report, and she was charged on three counts of making false accusations against the alleged rapist. After those charges were dismissed, Plaintiff sued LPD Officers Charles Cottengim and Kimberlee Nicholson (Defendants) and the City of Lawrence under federal civil-rights statutes and state law. 1 Three years into the litigation, she also sought to add a claim that Defendants violated her Fourth Amendment rights by searching her phone. The district court dismissed all the claims and denied Plaintiff’s motion to add a Fourth Amendment claim. On appeal we are asked to review only (1) the dismissals for failure to state a claim of the federal civil-rights claims of malicious prosecution and conspiracy against Defendants, (2) the district court’s refusal to allow Plaintiff to amend her complaint, (3) the grant of summary judgment against her on an equal- protection claim against Defendants, and (4) the grant of summary judgment against her on several state-law claims against Defendants and the City. Exercising jurisdiction under 28 U.S.C. § 1291, we largely affirm. We hold that the malicious-prosecution claim failed to adequately allege that Defendants were responsible for the prosecution; that the conspiracy claim failed to adequately allege that Defendants agreed with anyone to violate Plaintiff’s rights; and that Plaintiff did not demonstrate good cause to file an amended complaint after 1 Also sued were LPD Officer Daniel Affalter and the University of Kansas, but the parties have stipulated to their dismissal. 2  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 3 the court-ordered deadline for amendments. As for the equal-protection claim, we hold that Plaintiff failed to adequately show that Defendants treated her differently from anyone similarly situated to her or that circumstantial evidence supported an inference of discrimination. Ordinarily, however, a district court should not rule on state-law claims before it on supplemental jurisdiction after disposing of the federal claims before trial. We therefore remand for the district court to determine whether it should have declined to exercise supplemental jurisdiction over those claims. I. BACKGROUND Two documents will dominate our discussion: Plaintiff’s First Amended Complaint (the Complaint) and the probable-cause affidavit submitted by Officer Cottengim in support of the warrant for Plaintiff’s arrest for making false accusations (the Affidavit). 2 For the purpose of providing the background for our discussion, we will rely primarily on the Complaint but supplement it with undisputed facts in the record. A. Factual Background On September 27, 2018, Plaintiff, a student at the University of Kansas School of Law, went out to drink with fellow students, including Joel Thompson. Thompson 2 The operative complaint, Plaintiff’s First Amended Complaint, appears at Aplt. App., Vol. 1 at 86–156. This opinion will reference it simply as the Complaint, and citations to it will provide the page of the Complaint. Similarly, the Affidavit appears at Aplt. App., Vol. 9 at 2363–69, and our citations will provide the page of the Affidavit. 3  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 4 was “the best friend of her on again, off-again boyfriend, Kriston Guillot.” Compl. at 10. Early the next morning she “woke up in a strange bed” naked with “bruises on her body.” Id. at 9. “[S]he did not initially recognize” the man “in bed with her” but eventually determined that it was Thompson. Id. “She knew he’d had sex with her, even though she was far too intoxicated to consent.” Id. at 9–10. At around 6 a.m. Plaintiff was about to text her close friend, Courtney Hurtig, when she saw that four hours earlier she had texted her, saying that she had “‘fucked up’ and ‘slept with Joel.’” Id. at 10. Plaintiff “had no memory of sending that message.” Id. Plaintiff had also texted Hurtig: “It’s all good . . . this was a fuck up though I literally made him stop having sex and was like oh no what will Kriston say.” Id. at 13 (cleaned up). Hurtig asked, “What happened to it being gross and he slept with half the law school?! Dirty. Dick.” Aff. at 3 (internal quotation marks omitted). Plaintiff responded, “I know . . . maybe I should just start an antibiotic” and “I know! It is gross . . . he’s actually really good at sex though.” Id. (internal quotation marks omitted). Later that morning Plaintiff returned home and texted Hurtig: “Get here fast -- I’m literally about to have a breakdown.” Compl. at 10 (internal quotation marks omitted). When Hurtig arrived, she saw Plaintiff’s bruises, noticed that Plaintiff was unusually upset, and suspected that Plaintiff had been raped. 3 In Kansas, rape includes “[k]nowingly engaging in sexual intercourse with a 3 victim . . . when the victim is incapable of giving consent because of the effect of any 4  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 5 The next day Plaintiff’s memories began to return. She told Hurtig, “I don’t know . . . I don’t know if it’s rape. I’m so embarrassed,” and she texted Hurtig’s boyfriend, “I’m pretty sure it was borderline date rape and I have the bruises and statements to prove it.” Id. at 11–12 (internal quotation marks omitted). After Plaintiff “acknowledge[d] that she may have been raped,” Hurtig called the LPD “and sa[id] that her friend [was] ready to report a rape.” Id. at 12. LPD Officer Daniel Affalter asked Plaintiff and Hurtig to meet at Lawrence Memorial Hospital. The two women met with Affalter and Defendants. Plaintiff “told Affalter that she had been raped the day before,” but “she did not want to press charges.” Id. at 13. Plaintiff and Hurtig provided their phones to the officers to examine. Affalter and Defendants saw the texts between Plaintiff and Hurtig and began investigating whether Plaintiff gave a false statement to officers. Meanwhile, Plaintiff underwent a rape examination with a Sexual Assault Nurse Examiner, although she told the nurse that she did not want the examination results reported to the police. The nurse passed that decision along to the officers. A few days later, Nicholson and Affalter interviewed Plaintiff at her house. She repeatedly asserted that she did “not want to pursue charges” and “that she fear[ed] doing so could ruin law school and her career.” Id. at 15–16. Nicholson said to her that the text messages “look[ed] like [Plaintiff] just regrets what had alcoholic liquor . . . , which condition was known by the offender or was reasonably apparent to the offender.” K.S.A. § 21-5503(a)(2). 5  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 6 happened.” Id. at 16. Plaintiff disagreed, explaining that she “‘played it off’ initially in the text messages with Courtney because she was concerned about protecting her future job.” Id. (brackets omitted). Nicholson responded that “the detectives’ point of view” was that “it happens a lot in college towns, just things like that where females mess up or males mess up and sleep with the wrong person.” Id. (internal quotation marks omitted). And “it looks like you cheated on your boyfriend and you’re like ‘Oh, shit,’ and then your friend was like ‘Well, you were raped,’ and that’s why we were called. And it happens a lot, and we just like to clear it up so we don’t have to do further investigation.” Id. (internal quotation marks omitted). Plaintiff “struggled in the aftermath” and met with the University’s Title IX office, Office of Institutional Opportunity and Access (IOA). Id. at 17. Plaintiff told Affalter, who passed it along to Defendants, that she “met with IOA,” “was thinking about making a full statement to the police and potentially pursuing charges against Thompson,” and would meet with any officer other than Nicholson. Id. (emphasis omitted). Cottengim called an IOA investigator, spoke to a police captain, and began interviewing witnesses, including Thompson, his roommates, and Guillot. On October 12, Plaintiff told Cottengim that she did not want the criminal or IOA investigation to proceed. She said that she was worried the investigation would jeopardize her future employment and that her doctor “advised her not to continue with the investigation due to the amount of stress it was causing her.” Id. at 19. Despite telling Plaintiff that the investigation would stop, Cottengim continued interviewing witnesses. 6  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 7 On October 29, Plaintiff met with Officers Affalter and Cottengim and “provide[d] her full account.” Id. at 22. B. Court Proceedings On December 5, 2018, Cottengim signed the Affidavit alleging that Plaintiff had falsely reported that she had been raped. The City initiated a criminal complaint against Plaintiff in late January 2019. Several days later, Cottengim requested that she come to the LPD station, where he arrested her. Plaintiff was later charged with two more counts of false reporting. At a preliminary hearing in June 2019 the state district court “found probable cause to support the charges, relying largely on the correct spelling in [Plaintiff’s] early morning text messages to Hurtig, while also failing to note that smart phones all have ‘auto correct’ and would likely fix any spelling errors.” Id. at 33. That October the District Attorney moved to drop the charges, and the district court dismissed all charges with prejudice. Plaintiff promptly filed suit in the United States District Court for the District of Kansas. The district court ultimately entered judgment dismissing all the claims and denying Plaintiff’s motion to add a Fourth Amendment claim. II. DISCUSSION Plaintiff appeals only (1) the dismissal under Fed. R. Civ. P. 12(b)(6) of her claims against Defendants under 42 U.S.C. §§ 1983 and 1985 for malicious prosecution and conspiracy, (2) the denial of her motion for leave to add a Fourth Amendment claim, (3) the grant of summary judgment to Defendants on her equal- 7  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 8 protection claim, and (4) the grant of summary judgment to Defendants and the City on her state-law claims. We begin by addressing the claims dismissed on the pleadings, then discuss her motion to amend, and finally turn to the claims dismissed on summary judgment. A. Motion to Dismiss 1. Standard of review “We review de novo the district court’s ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim for relief.” Bledsoe v. Carreno, 53 F.4th 589, 606 (10th Cir. 2022). “In considering whether the complaint’s allegations are sufficient, the court first eliminates conclusory allegations, mere labels and conclusions, and any formulaic recitation of the elements of a cause of action.” Id. (internal quotation marks omitted). Ordinarily, we then “assume the[] veracity” of “well-pleaded factual allegations” and “determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “In conducting this analysis, the court draws all reasonable inferences in favor of the plaintiff.” Bledsoe, 53 F.4th at 607. We may also consider, however, a document referenced by the complaint if (1) it is attached to or incorporated by reference in the complaint or (2) an indisputably authentic copy is submitted to the court. See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). Plaintiff has not argued that the copy of the Affidavit in the record is inauthentic or that reliance on it is improper. Thus, we are not bound by the Complaint’s description of the Affidavit and may rely on the Affidavit to contradict the Complaint. 8  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 9 When alleging claims under § 1983, “it is particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the state.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). Accordingly, a complaint should avoid “the collective term ‘Defendants.’” Id. 2. Malicious prosecution On a § 1983 malicious-prosecution claim the plaintiff must show that “(1) the defendant caused the plaintiff’s continued confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable cause supported the arrest, confinement, or prosecution; (4) the defendant acted maliciously; and (5) the plaintiff sustained damages.” Coones v. Bd. of Cnty. Comm’rs of Unified Gov’t of Wyandotte Cnty./Kan. City, 166 F.4th 1, 25 (10th Cir. 2026) (internal quotation marks omitted). The district court dismissed the claim on the first element, holding that Plaintiff did not adequately allege causation. See Horocofsky, 2022 WL 1421554, at *24–26. We agree. “[P]ursuing a malicious prosecution claim against a police officer is ‘anomalous’” because “‘[t]he principal player in carrying out a prosecution . . . is not police officer but prosecutor.’” Taylor v. Meacham, 82 F.3d 1556, 1563 n.8 (10th Cir. 1996) (quoting Albright v. Oliver, 510 U.S. 266, 279 n.5 (1994) (Ginsburg, J., concurring)). And often a judge determines at a preliminary hearing whether there is probable cause. See id. at 1563–64. Thus, even when police officers “set in motion 9  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 10 a malicious prosecution,” the chain of causation is ordinarily broken by an indictment or preliminary hearing. Id. at 1564. 4 But officers may be said to cause a prosecution if they prepare an affidavit and (1) “knowingly or with reckless disregard for the truth” include false statements or omit facts in the affidavit, (2) the inaccuracies are material because they are “significant enough to vitiate probable cause,” and (3) the statements or omissions “induce the criminal justice system to confine and then to prosecute an innocent defendant.” Pierce v. Gilchrist, 359 F.3d 1279, 1287, 1293 (10th Cir. 2004) (internal quotation marks omitted); see Bledsoe, 53 F.4th at 614; Taylor, 82 F.3d at 1562. “To establish recklessness, there must exist evidence that the officer in fact entertained serious doubts as to the truth of his allegations,” Kapinski v. City of Albuquerque, 964 F.3d 900, 908 (10th Cir. 2020) (internal quotation marks omitted), not just evidence of “negligence or inadvertence,” Taylor, 82 F.3d at 1563. “An officer who does not personally know information cannot intentionally or recklessly omit it.” United States v. Pulley, 987 F.3d 370, 379 (4th Cir. 2021), see id. at 377 (“What the officer-affiant should have known does not matter if he did not in fact know.”). To determine materiality, we consider whether the affidavit would still support probable cause after “setting aside the false information” and “examining the affidavit as if the 4 Although Plaintiff suggests that Taylor is inapplicable because we were reviewing a summary judgment, we have applied Taylor at the motion-to-dismiss stage. See, e.g., Shrum v. Cooke, 60 F.4th 1304, 1312 (10th Cir. 2023). 10  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 11 omitted information had been included.” Taylor, 82 F.3d at 1562 (internal quotation marks omitted). 5 Plaintiff does not allege that Defendants charged her with any offenses. See Compl. at 67–68. And she acknowledges that “the [state] district court . . . found probable cause to support the charges” at a preliminary hearing. Id. at 33 (emphasis added). Rather, her malicious-prosecution claims against Defendants are predicated solely on alleged defects in Cottengim’s Affidavit. We are not persuaded. We consider each alleged error or omission raised in Plaintiff’s opening brief on appeal. To begin with, we do not need to address several “conclusory allegations,” which are entitled to no weight. Bledsoe, 53 F.4th at 606. These allegations include (1) the complaint that the Affidavit “was full of material and gross omissions, misleading statements, and unsupported claims,” Compl. at 25; (2) the assertion that “[h]ad the [A]ffidavit contained accurate and complete information, it would not have supported probable cause to arrest” Plaintiff, id. (emphasis omitted); and (3) the claim that Cottengim falsely and misleadingly drew “false causal connections,” Aplt. Br. at 28. We now turn to Plaintiff’s assertions that the affidavit contained false statements and then we address her assertions regarding omissions. 5 Plaintiff argues that Coones, 166 F.4th 1, is relevant to her theory of causation. But on appeal the defendants in Coones did not raise, so we did not decide, causation. See id. at 26. 11  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 12 Plaintiff has not adequately alleged that Cottengim knowingly or recklessly made materially false statements. Plaintiff points to two statements in the Affidavit that she claims to be materially false: (1) that Cottengim believed Plaintiff and Thompson had consensual sexual intercourse and (2) that Plaintiff reported that she had been raped. We disagree. First, Plaintiff asserts that Cottengim stated “[t]he false belief that [Plaintiff] was coherent enough to consent to sexual intercourse because of correctly spelled words in her text messages.” Aplt. Br. at 27 (internal quotation marks omitted); see also Aff. at 6 (Cottengim “believes [Plaintiff] and Joel Thompson were coherent enough to type correctly spelled words and form sentences”). Plaintiff argues that the Affidavit’s conclusion was false because phones contain “self-correcting spelling function[s].” Id.at 28. But even if Cottengim did draw a mistaken inference from the correctly spelled words, what matters is whether the affiant officer believed what he said he believed. See Franks v. Delaware, 438 U.S. 154, 165 (1978) (under the Fourth Amendment, a truthful affidavit “does not mean ‘truthful’ in the sense that every fact recited in the warrant affidavit is necessarily correct” but “that the information put forth is believed or appropriately accepted by the affiant as true”). It is therefore dispositive that the Complaint does not allege that Cottengim falsely stated what his belief was. And such an allegation would be particularly striking because, according to the Complaint, the state judge who conducted the probable- cause hearing reached the same conclusion as Cottengim, presumably after defense counsel had the opportunity at the hearing to point out the self-correcting features of 12  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 13 the smartphone. See Compl. at 33 (the judge “rel[ied] largely on the correct spelling in [Plaintiff]’s early morning text messages to Hurtig, while also failing to note that smart phones all have ‘auto correct’ and would likely fix any spelling errors”). Second, Plaintiff complains that the Affidavit falsely recounted that Plaintiff “was not sure she wanted to pursue charges” at the hospital on September 29, Aplt. Br. at 27 (citing Aff. at 2) and that on October 10 she told Affalter that she “‘want[ed] to pursue charges,’” id. (quoting Aff. at 4). She asserts that these statements are false because she “never indicated any desire to pursue charges against Thompson to the police.” Id. at 28. But Plaintiff has not explained why her reluctance to bring charges is material when the Complaint alleges, as the Affidavit stated, that Plaintiff “told Affalter that she had been raped.” Compl. at 13; see Aff. at 2 (“[Plaintiff] reported to Officer D. Affalter, by phone, that she had been raped by [Thompson]”). It is the accusation of rape that formed the basis of the charge against Plaintiff, not her statements regarding whether she wished to pursue charges. Further, the factual assertions in the Complaint about Plaintiff’s attitude toward bringing charges are not materially different from those in the Affidavit. The Complaint alleges that on September 29 Plaintiff was “hesitant” to talk to officers at the hospital but ultimately met with them “so at least the evidence [could] be collected.” Compl. at 12. Hurtig told her to go “[e]ven if [Plaintiff] d[idn’t] want to end up pressing charges.” Id. at 12 (emphasis added) (internal quotation marks omitted). At the hospital she provided her phone to police officers so that they could 13  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 14 collect evidence. See id. at 12–13. And Nicholson ended the conversation with Plaintiff by telling her that “if she decided to proceed, she could come down to [the] station later and give [a] full statement.” Id. at 13 (emphasis added). These allegations fairly imply that, as stated in the Affidavit, Plaintiff was not sure she wished to pursue charges against Thompson. More importantly, the Complaint alleges that on October 10 Plaintiff told Affalter that she “was thinking about making a full statement to the police and potentially pursuing charges,” and she “indicated she was willing to meet with any LPD detective other than Nicholson.” Id. at 17 (emphasis omitted). To be sure, the Complaint alleges that two days later she “call[ed] Cottengim and t[old] him that she d[id] not want any criminal investigation to go forward” in part because her doctor “advised her not to continue.” Id. at 19. But to decline to continue, one must have started. The Complaint is inconsistent with the notion that Plaintiff “never indicated” a desire to pursue charges and that the Affidavit was materially false in suggesting otherwise. Aplt. Br. at 28. In sum, the Affidavit accurately stated that Plaintiff reported she had been raped, the Complaint does not allege that Cottengim lied when he said that he did not believe Plaintiff was raped, and the statements in the Affidavit concerning Plaintiff’s willingness to press charges are not materially false. 6 6 Plaintiff also points out an apparent factual error in the Affidavit: it says that Plaintiff called Nicholson during one conversation, when the Complaint says that it was actually Nicholson who called Plaintiff. See Aplt. Br. at 27. But who called whom does not materially change the probable-cause calculus. 14  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 15 As for alleged omissions in the Affidavit, (1) one can be disposed of because there was no omission, (2) others can be disposed of because there is no allegation that Cottengim knew the omitted information (so the omission could not have been knowing or reckless), and (3) other omitted information was not material because it could not have affected the evaluation of probable cause. In the first category, Plaintiff asserts that the Affidavit omitted “[a]ny mention of [her] ongoing medical care . . . after she told detectives that she was suffering from extreme stress.” Aplt. Br. at 25. The Affidavit, however, expressly stated, in bold, that Plaintiff “advised she had seen a doctor” and that the doctor “advised her not” to pursue charges against Thompson “due to the amount of stress it was causing her.” Aff. at 5. For several other alleged “omissions,” Plaintiff does not assert that Defendants knew (or even should have known) the facts omitted from the Affidavit. The argument in Plaintiff’s brief asserts that the Affidavit omitted mention of Plaintiff’s medical records, the results from her rape kit, and interviews with her doctors and friends who had evidence of her mental and physical condition after the alleged rape. See Aplt. Br. at 25. But Plaintiff never alleges that Cottengim had access to her medical data, so there was nothing to omit. In fact, the Complaint alleges that Plaintiff did not want her medical records disclosed to the police, see Compl. at 14, and it suggests that officers did not have Plaintiff’s consent to receive her records, see id. at 27–28. Likewise, the Complaint does not allege that the rape-kit results existed when Cottengim wrote his Affidavit. So the results could not be “omitted.” 15  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 16 See id. at 28 (alleging that “[t]he rape kit was eventually tested during [Plaintiff]’s criminal case” (emphasis added)). Similarly, the Complaint alleges that Cottengim did not interview several of Plaintiff’s doctors or friends, see id. at 28–29; yet, with only one exception, it does not identify any statement to Defendants by doctors or friends that was omitted from the Affidavit. The one exception is that the Complaint alleges that at the hospital Hurtig told the officers “about [Plaintiff’s] emotional distress and physical injuries.” Id. at 28. But there is no reason to believe that this omission was intentional or reckless, since the Affidavit reported on her distress and quoted a text message from Plaintiff noting her “bruises.” Aff. at 2; see Kapinski, 964 F.3d at 908 (“[T]he fact that [the affiant] included evidence militating in favor of self-defense in the affidavit negates any . . . inference” of recklessness in omitting body-camera footage that could support self-defense theory). Plaintiff’s allegations about her intoxication are similar. She complains that the affidavit omitted her records that would show purchases of drinks and a video from the bar where she was with Thompson, which showed her intoxication. See Aplt. Br. at 26. But the complaint did not allege that Cottengim possessed or knew about such records or a video. Similarly, Plaintiff asserts that the Affidavit omitted evidence that Thompson was “known for taking advantage of young women who’d had too much to drink.” Aplt. Br. at 26 (citing Compl. at 4, 26). But the Complaint never alleges, nor does Plaintiff argue on appeal, that Cottengim was aware of this reputation, as opposed to, 16  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 17 for example, a reputation for having sex with lots of women, which was noted in the Affidavit. See Aff. at 2 (Hurtig said that Thompson had a reputation for promiscuity). Because Plaintiff did not allege that Cottengim knew about any of this information, even if she believes that he “should have known” about it, she has not adequately alleged that these omissions were reckless or intentional. Pulley, 987 F.3d at 379. The remaining alleged omissions were immaterial in light of the information provided in the Affidavit. Plaintiff argues that it omitted “[t]ext messages between Thompson and his friends, just prior to the assault, joking that [Plaintiff] appeared intoxicated, demonstrating her obvious inability to consent,” but the Affidavit included some texts between Thompson and his friends joking about Plaintiff’s intoxication before she left the bar. Compare Aplt. Br. at 26, with Aff. at 5. Additional texts reiterating that Plaintiff was intoxicated would add nothing to the determination of whether there was probable cause. Plaintiff next complains that the Affidavit omitted to mention the failure of the officers to investigate her medical data. But the fact that they had failed to conduct such an investigation was not material. After all, the Complaint alleges that Plaintiff did not want her medical records disclosed to the police. We fail to see what inference in her favor could have been drawn from inclusion in the Affidavit of the fact that there was no investigation into something she did not want to be disclosed. Plaintiff asserts that the Affidavit omitted Plaintiff’s statement to officers that “she was concerned about protecting her future job when Nicholson questioned her 17  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 18 on October 3.” Aplt. Br. at 26. The Affidavit said, however, that on October 12 Cottengim spoke to Plaintiff, who advised him that “she did not want [the investigation] to jeopardize the job offer she received.” Aff. at 5. Even if Plaintiff is right that Cottengim knowingly omitted what Plaintiff told Nicholson on October 3, she does not explain how that omission would be material given that the Affidavit noted that she made the same statement nine days later. Plaintiff also alleges that the Affidavit omitted Thompson’s “graphic text messages,” which “indicated [Thompson] had harbored a plan to sexually assault her for months.” Aplt. Br. at 25. 7 These texts may have “clearly expressed” Thompson’s intent to have sex with Plaintiff. Id. at 26. And they may have been extremely “crude.” Id. at 16. But even if they should have been included in the Affidavit as a matter of completeness, their addition would not have been material. As the Affidavit made clear, Plaintiff was intoxicated and Thompson had sex with her. Thompson’s expressed intent would have little bearing on whether Plaintiff consented. Finally, we note that Plaintiff complains about the Affidavit’s use of quotation marks and bold type, but she does not explain how this typography could materially alter the existence of probable cause. 7 After observing that Plaintiff “was so fucked up,” Thompson texted a friend that he was “bout to see what [Plaintiff] was working with” and was “fucking” Plaintiff just so that Guillot “knows [Thompson] can.” Compl. at 27 (internal quotation marks omitted). Thompson had previously texted Guillot other “crude texts” about his “intent to have sex with” Plaintiff. Id. 18  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 19 In sum, the Complaint does not plausibly allege that Defendants caused her alleged malicious prosecution. Defendants’ only involvement was that Cottengim completed an affidavit that was materially correct. 8 Because we resolve this claim on causation, we need not address whether Plaintiff plausibly alleged the other elements of a malicious-prosecution claim. 3. Conspiracy Plaintiff alleges conspiracies in violation of 42 U.S.C. §§ 1983 and 1985(3). Section 1983 provides a cause of action for “a conspiracy to deprive a plaintiff of a constitutional or federally protected right under color of state law.” Dixon v. City of Lawton, 898 F.2d 1443, 1449 n.6 (10th Cir. 1990). And § 1985(3) reaches private conspiracies, but it requires that the conspiracy be “driven by some racial or otherwise class-based discriminatory animus.” Brooks v. Gaenzle, 614 F.3d 1213, 1227 (10th Cir. 2010) (internal quotation marks omitted), abrogated on other grounds by Torres v. Madrid, 592 U.S. 306 (2021). (We need not address whether the Complaint alleges the necessary animus.) “[A] federal conspiracy action brought under either of these statutes requires at least a combination of two or more persons acting in concert and an allegation of a meeting of the minds, an agreement among the defendants, or a general conspiratorial objective.” Id. at 1227–28. 8 Plaintiff has waived any argument that Defendants caused her prosecution through means other than Cottengim’s affidavit, because she failed to develop such an argument in her opening brief. See Becker v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007) (“An issue or argument insufficiently raised in the opening brief is deemed waived”). 19  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 20 A conspiracy claim requires “more than conclusory allegations.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998). “Without more, parallel conduct does not suggest conspiracy.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–57 (2007); see Brooks, 614 F.3d at 1228. And allegations that “defendants formed an agreement or conspired to engage in lawful activities—including lawful investigative activities” are insufficient. Frasier v. Evans, 992 F.3d 1003, 1025 (10th Cir. 2021); see Grider v. City of Auburn, 618 F.3d 1240, 1260 (11th Cir. 2010) (a showing that defendants agreed to investigate plaintiff is insufficient to show conspiracy to maliciously prosecute). Plaintiff alleges a conspiracy joined by Defendants and the University IOA investigator Kathryn Burns. We agree with the district court that she failed to assert her claims with more than conclusory allegations. See Horocofsky, 2022 WL 1421554, at *29. At bottom, Plaintiff’s nonconclusory allegations allege only agreement to “engage in . . . lawful investigative activities.” Frasier, 992 F.3d at 1025. Plaintiff asserts that Defendants “agree[d] they would target [Plaintiff] for a false report” shortly after meeting her at the hospital and “seeing a handful of text messages.” Aplt. Br. at 37 (citing Compl. at 2, 4, 6, 12–13, 15–18, 21–22). The Complaint alleges that the officers “made a snap judgment to reject her account” and “targeted” her instead of Thompson. Compl. at 2, 4. But the underlying factual allegations show only that officers interviewed witnesses, see id. at 12, 15–17, 18, 21, 22, and decided to investigate Plaintiff, see id. at 6, 13. “[S]howing that 20  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 21 [Defendants] ‘conspired’ to investigate [Plaintiff], which is lawful and part of their duties as law enforcement officers, is a far cry from showing that [Defendants] agreed to . . . maliciously prosecute [Plaintiff] for[] a . . . crime [s]he did not commit.” Grider, 618 F.3d at 1260. Nor are allegations that Cottengim “worked closely together” with Burns, or that the two met and shared information, sufficient to show an unlawful agreement. Compl. at 6; see also id. at 20, 22–24, 31. Those allegations merely establish that the two worked together to investigate, not that they worked together to unlawfully investigate. See Frasier, 992 F.3d at 1025. And the fact that Cottengim “met with [Burns] during the investigation” does not mean it “is reasonable to infer” that “they were conspiring with one another” to act unlawfully. Tonkovich, 159 F.3d at 533 Finally, Plaintiff alleges that other sexual-assault survivors (identified as Jane Does 1–3) were treated contemptuously by the LPD and its detectives, see, e.g., Compl. at 34–36, and that “some detectives had been cheering that they ‘finally got our false reporter’” after charges were brought against Plaintiff, id. at 34. But allegations need to specify which identified members of a group did what particular acts. See 519 F.3d at 1250. In particular, there is no specific allegation in the Complaint that Defendants treated Jane Does 1–3 contemptuously, that they engaged in such cheering, or that they conspired with the unnamed officers. Thus, the Complaint failed to state a claim for a conspiracy under either § 1983 or § 1985(3). 21  Appellate Case: 25-3024 Document: 70-1 Date Filed: 07/24/2026 Page: 22 B. Motion for Leave to Amend Plaintiff moved to amend her complaint to add a Fourth Amendment claim more than a year after the scheduling-order deadline for amendments. To amend after such a deadline, a party must show good cause. See Fed. R. Civ. P. 16(b)(4). Good cause “may be satisfied, for example, if a plaintiff learns new information through discovery or if the underlying law has changed. If the plaintiff knew of the underlying conduct but simply failed to raise [the] claims, however, the claims are barred.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014) (citation omitted). In particular, parties must show good cause for any delay after they are “on notice tha