                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                          April 5, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
MITCHELL BEAU SHED,

      Plaintiff - Appellant,

v.                                                         No. 17-7039
                                                 (D.C. No. 6:16-CV-00383-RAW)
OKLAHOMA DEPARTMENT OF                                     (E.D. Okla.)
HUMAN SERVICES; TRACY MURPHY,
in her individual capacity; SOMMER
PURDOM, in her individual capacity;
TOWN OF HASKELL; KERMIT
THOMAS, III, in his individual capacity,

      Defendants - Appellees,

and

SUZY PICKARD, in her individual
capacity; TIMOTHY ALAN PICKARD,
II, in his individual capacity,

      Defendants.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MORITZ, McKAY, and KELLY, Circuit Judges.
                  _________________________________

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Mitchell Beau Shed appeals from the district court’s order granting summary

judgment in favor of defendants Town of Haskell (the Town) and Kermit Thomas,

III, a police officer, on Shed’s claim for malicious prosecution under 42 U.S.C.

§ 1983 and violation of Oklahoma’s Governmental Tort Claims Act (GTCA). Shed

also appeals the court’s order that denied his motion to file a second amended

complaint against defendants Tracy Murphy and Sommer Purdom, employees of the

Oklahoma Department of Human Services (DHS). We exercise jurisdiction under

28 U.S.C. § 1291, and affirm.

                                   BACKGROUND

      In spring 2012, Suzy Pickard contacted DHS to report Shed for sexually

abusing her five-year-old granddaughter, K.P. The next day, Murphy contacted

Officer Thomas to tell him about the allegations and asked him to attend a forensic

interview of K.P., the daughter of Jessica Shed (Shed’s current wife) and her

ex-husband, Tim Pickard (Suzy Pickard’s son). Officer Thomas was present for, but

did not participate in, the interview; instead, he observed from the other side of a

two-way mirror.

      During the interview, which was conducted by Purdom, K.P. provided details

concerning the alleged sexual assault. She described where Shed touched her, and

stated that he put his hand under her nightgown and was digging in her. Using dolls,

K.P. reenacted the incident by putting the male doll’s hand under the dress of the

female doll and moving the hand up and down. K.P. also said that Shed touched her



                                           2
younger brother (Shed’s son). Additionally, the following exchange took place

between Purdom and K.P.:

      MS. PURDOM: Have you seen [Shed] touch anyone else that you know?

      KP: No.

      MS. PURDOM: Okay. Did [Shed] touch you anywhere else?

      KP: [Shed] hasn’t touched nobody.

      MS. PURDOM: [Shed] didn’t touch anybody?

      KP: No.

Aplt. App., Vol. II at 541-42.

      Officer Thomas also observed the interview of K.P.’s mother and Shed’s wife,

who said that K.P. never told her about any improper touching. And during an

interview a few days later at police headquarters, Shed, accompanied by his lawyer,

denied touching K.P. except to wash her hair during baths.

       Eventually, Officer Thomas prepared an affidavit of probable cause. Based

on the information in the affidavit, the court issued a warrant for Shed’s arrest and he

was taken into custody. Following a preliminary hearing, Shed was bound over for

trial. After a jury found him not guilty, Shed filed suit for malicious prosecution

under § 1983 and the GTCA.

      Shortly after suit was filed, Murphy and Purdom filed a motion to dismiss for

failure to state a claim under Fed. R. Civ. P. 12(b)(6). In his response in opposition,

Shed requested that the district court either deny the motion or allow him to file an

amended complaint. The court granted Shed’s request to amend.

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      Not long after Shed filed his amended complaint, the district court entered the

first scheduling order.1 Notably, the deadline for filing amended pleadings was listed

as not applicable. A few days later, Murphy and Purdom filed their second motion to

dismiss under Rule 12(b)(6). While their motion to dismiss was pending, the parties

filed a joint motion to amend the scheduling order in which they requested a 60-day

extension to complete discovery and file dispositive motions. The amended

scheduling order entered by the court extended the deadlines requested by the parties.

Once again, the deadline for amending pleadings was noted as not applicable. A few

weeks later, the district court granted Murphy and Purdom’s second motion to

dismiss and terminated them from the suit.2

      Just days before the deadline for filing dispositive motions, and a month after

the district court granted Murphy and Purdom’s second motion to dismiss, Shed filed

a motion to file a second amended complaint to “cure[] the pleading deficiency this

Court identified [in its order granting Murphy and Purdom’s second motion to

dismiss] relative to the [malicious prosecution] claim asserted against Murphy [and]

Purdom.”3 Aplt. App., Vol. I at 69.


      1
        Fed. R. Civ. P. 16(b)(1), (3) provides that the district court must issue a
scheduling order that includes, among other things, the time to amend the pleadings.
      2
        After Murphy and Purdom were terminated from the suit, the district court
granted the parties’ motion to extend the deadline for filing dispositive motions.
      3
       Shed titled the motion “Plaintiff’s Opposed Motion to File a Second
Amended Complaint.” Aplt. App., Vol. 1 at 69 (emphasis added). However, Shed’s
motion did not say which parties were contacted and their respective positions.
                                                                          (continued)
                                          4
      The district court denied Shed’s motion on the grounds of (1) undue delay,

(2) prejudice, (3) the failure to cure the deficiencies in the amended complaint, and

(4) futility. Not long thereafter, the court granted the Town’s and Officer Thomas’

motion for summary judgment. This appeal followed.

                                     ANALYSIS

The § 1983 Malicious Prosecution Claim

      “We review the district court’s summary judgment rulings de novo, using the

same standard as the district court. . . .” Novitsky v. City of Aurora, 491 F.3d 1244,

1252 (10th Cir. 2007). Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

      “In this circuit, when addressing § 1983 malicious prosecution claims, we use

the common law elements of malicious prosecution as the starting point of our

analysis; however, the ultimate question is whether plaintiff has proven the

deprivation of a constitutional right.” Novitsky, 491 F.3d at 1257 (internal quotation

marks omitted). The elements of a § 1983 malicious prosecution claim are: “(1) the

defendant caused the plaintiff’s continued confinement or prosecution; (2) the

original action terminated in favor of the plaintiff; (3) there was no probable cause to

support the original arrest, continued confinement, or prosecution; (4) the defendant

acted with malice; and (5) the plaintiff sustained damages.” Id. at 1258. The

Regardless, neither Murphy nor Purdom filed a response to the motion, presumably
because they had been terminated from the suit.

                                           5
constitutional “element” of Shed’s § 1983 malicious prosecution claim implicates the

Fourth Amendment, which requires that “an arrest warrant must be supported by

probable cause,” and “it is a Fourth Amendment violation to knowingly or recklessly

omit from the affidavit information which, if included, would have vitiated probable

cause.” Taylor v. Meacham, 82 F.3d 1556, 1562 (10th Cir. 1996) (internal quotation

marks omitted).

       The thrust of Shed’s argument is that the exchange between K.P. and Purdom

undermined K.P.’s claim that Shed was the perpetrator of the sexual assault, and had

that information been included in Officer Thomas’ affidavit, it would have vitiated

probable cause.4 Shed further argues that this omission was exacerbated by other

information that Officer Thomas failed to mention in the affidavit, including: (1) he

did not investigate whether Shed sexually abused his son; (2) a sexual assault nurse

examiner did not find any physical evidence of an assault on K.P.; (3) he lacked the

training to properly investigate child sexual abuse cases; and (4) there was long-

standing acrimony between the Shed and Pickard families. We will not consider

these arguments because he did not raise them in the district court.5 See Richison v.

Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011) (“[I]f the theory . . . wasn’t

       4
         We do not address whether Officer Thomas acted with malice, i.e., that he
knowingly or recklessly omitted the exchange between K.P. and Purdom, because
even if the information had been included in the affidavit, it would not have vitiated
probable cause.
       5
         We also note that Shed’s appellate briefs consist largely of unsubstantiated
facts regarding these four issues without any “citation to the . . . parts of the record
on which [he] relies,” as required by Fed. R. App. P. 28(a)(8)(A).

                                            6
raised before the district court, we usually hold it forfeited.”). Nonetheless, “we will

entertain forfeited theories on appeal, but we will reverse . . . on the basis of a

forfeited theory only if failing to do so would entrench a plainly erroneous result.”

Id. But Shed has not argued for plain-error review, and his failure to do so “marks

the end of the road for an argument for reversal not first presented to the district

court.” Id. at 1131.

       Returning to the elements of Shed’s § 1983 malicious prosecution claim,

probable cause does not require proof beyond a reasonable doubt or even a

preponderance of the evidence. “Instead, the relevant question is whether a

substantial probability existed that the suspect committed the crime, requiring

something more than a bare suspicion.” Kerns v. Bader, 663 F.3d 1173, 1188

(10th Cir. 2011) (citation and internal quotation marks omitted); see also Taylor, 82

F.3d at 1562 (“Probable cause for an arrest warrant is established by demonstrating a

substantial probability that a crime has been committed and that a specific individual

committed the crime.”) (internal quotation marks omitted)).

       In Easton v. City of Boulder, 776 F.2d 1441, 1450 (10th Cir. 1985), we

examined whether discrepancies in the statements of two young boys regarding an

alleged sexual assault was enough to vitiate probable cause, and concluded that “[t]he

existence of inconsistencies in their statements” did not vitiate probable cause

because they did not “undermine the solid core of the children’s statements regarding

the . . . assault.” After all, “[t]he standard of probable cause does not require

indubitable or necessarily convincing evidence, but only so much reasonably

                                             7
trustworthy information as to warrant a prudent man in believing that the arrestee has

committed . . . an offense.” Id. (brackets and internal quotation marks omitted).

      Applying these principles to Shed’s case, we agree with the district court that

“[d]iscrepancies in [K.P.’s] statements did nothing to undermine the solid core of

[her] statements regarding what was actually done to her for [the] purpose of

determining probable cause for issuance of [an arrest] warrant.” Aplt. App., Vol. II

at 551-52.

The Alleged Violation of the GTCA

      Shed argues that he can state a claim against Officer Thomas and the Town for

the negligent performance of their law enforcement duties under the GTCA, even if

there was probable cause for issuance of the arrest warrant under the Fourth

Amendment, citing State ex rel. Oklahoma Department of Public Safety v. Gurich,

238 P.3d 1, 4 (Okla. 2010), which holds that the “[n]egligent performance of a law

enforcement function is not shielded from immunity under the GTCA.” According to

Shed, “[e]ven where arguable probable cause may exist under Fourth Amendment

standards, it could still result from negligent conduct. Here, a jury could determine

that [Officer] Thomas failed to exercise reasonable care in conducting his

investigation.” Aplt. Opening Br. at 24.

      Officer Thomas and the Town counter that this is a new claim, raised for the

first time on appeal. More specifically, they argue that the only claims in Shed’s

amended complaint pertain to malicious prosecution.



                                           8
      We need not resolve these disputes, because the problem for Shed is that he

has failed to cite any authority that under Oklahoma law, a police officer is negligent

if he fails to conduct a complete investigation prior to seeking an arrest warrant. See

United States v. Banks, 451 F.3d 721, 728 (10th Cir. 2006) (holding this court does

not address arguments that are not supported by legal authority).

The Motion to File a Second Amended Complaint

      “In general, leave to amend a complaint should be freely granted ‘when justice

so requires.’” Jones v. Norton, 809 F.3d 564, 579 (10th Cir. 2015) (quoting Fed. R.

Civ. P. 15(a)(2)). But there are a number of well-established reasons to deny leave to

amend, including: (1) undue delay; (2) undue prejudice to the opposing party;

(3) failure to cure deficiencies in previous amendments; and (4) futility. Bylin v.

Billings, 568 F.3d 1224, 1229 (10th Cir. 2009).

      “Where the reason for denial of leave to amend is futility, we review de novo

the legal basis for the finding of futility,” otherwise we review the denial “for abuse

of discretion.” Jones, 809 F.3d at 579. “A district court abuses its discretion if its

decision is arbitrary, capricious, whimsical, or manifestly unreasonable.” Bylin,

568 F.3d at 1229 (internal quotation marks omitted).

      In its order granting Murphy and Purdom’s motion to dismiss, the district court

found that the amended complaint was subject to dismissal because, among other

things, the allegations did not establish several elements necessary for a § 1983

malicious prosecution case, including the lack of causation.



                                            9
      In his proposed second amended complaint, Shed purported to cure the

“causation” deficiency by alleging that Murphy and Purdom failed to disclose the

exchange between K.P. and Purdom concerning who Shed touched in their

child-welfare reports to the District Attorney’s Office. But the child-welfare reports

did not cause Shed’s arrest. We therefore agree with the district court that “the

proposed amendment would be futile, in that it still does not state a plausible

allegation of causation.” Aplt App., Vol. II at 490.

      We also agree that the district court did not abuse its discretion in otherwise

denying the proposed amendment. First, we agree there was undue delay in light of

the fact that the parties agreed on several occasions in the scheduling orders that

there was no need to establish a deadline to amend the pleadings because the time to

do so had passed. Second, Murphy and Purdom had been terminated from the suit,

and to haul them back into court when several important deadlines had passed, would

have been unduly prejudicial. Last, the court had already allowed Shed the

opportunity to amend his complaint in response to the first motion to dismiss. We

agree with the court that the amended complaint “was the occasion to fortify the

allegations against [a second] motion [to dismiss].” Id. at 489. As the court noted,

“[t]he purpose of motion practice under Rule 12(b)(6) . . . is not for the court to

‘identify’ pleading deficiencies as to each defendant, with such deficiencies to be




                                           10
‘corrected’ by serial amendments.” Id. at 489-90. None of these determinations

were arbitrary, capricious, whimsical, or manifestly unreasonable.

      The judgment of the district court is affirmed.


                                              Entered for the Court


                                              Paul J. Kelly, Jr.
                                              Circuit Judge




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