Horocofsky v. City of Lawrence
| Decision Date | 05 May 2022 |
| Docket Number | 20-2529-EFM |
| Parties | BOBBIE JO HOROCOFSKY, Plaintiff, v. CITY OF LAWRENCE, et al ., Defendants |
| Court | U.S. District Court — District of Kansas |
In late 2018, Plaintiff Bobbie Jo Horocofsky, a student at the University of Kansas School of Law, made a statement to officers of the Lawrence, Kansas police department, and later to University investigators, indicating she had been raped by another law student. A police detective subsequently submitted a probable cause affidavit stating the investigation showed that Plaintiff's report was false. The Douglas County District Attorney filed state criminal charges against Plaintiff, and on June 5, 2019, the Douglas County District Court conducted a preliminary hearing and found that probable cause supported the charges.
Shortly before the trial, however, the District Attorney dismissed the charges, and Plaintiff instituted the present action against the University, the City of Lawrence, and three officers of the Lawrence Police Department (LPD): Detectives Charles Cottengim and Kimberlee Nicholson, and Officer Daniel Affalter, Jr. (the “Individual Defendants”). All of the Defendants have moved to dismiss the claims against them.
For the reason identified below, the Court grants the University's Motion to Dismiss. The Court grants in part and denies in part the Motion to Dismiss of the City and the Individual Defendants.
On the evening of September 27, 2018, Plaintiff and other law students went bar hopping after a law school event. Plaintiff and one of the other students, Joel Thompson, had both accepted employment offers at a Kansas City law firm, which also employed a recent graduate and sometime boyfriend of the Plaintiff, Kriston Guillot.
Plaintiff and Thompson drank heavily. At 11:04 p.m., Thompson texted to a friend that “We at sandbar man lol we got on the road and she was so fucked up I was like hell Na.” At 11:31 p.m., Thompson's friend texted, [1] Thompson responded, “She wants to fuck soooo bad, ” followed by, “And I haven't fucked yet.” The friend responded “Yeah I could tell, ” and “You didn't even look tipsy lmfaoooo.”
Thompson identified Plaintiff as “Kriston's side joint, ” and he would be “fucking” her just so “he [Guillot] knows I can.” As the drinking continued, Thompson texted, “I'm bout to see what she working with.” Eventually, Plaintiff and Thompson went to his residence.
At approximately 2:00 a.m. the following morning, Plaintiff texted her close friend, Courtney Hurtig, saying,
According to the Amended Complaint, Plaintiff woke up that morning in a strange bed and did not know where she was or how she got there. Her memory of the night before was “very patchy and confused.” She felt the effects of the alcohol she had consumed earlier. She was naked and bruised. She states that though still intoxicated, she realized that she was in bed with Thompson, and that the two had had sex, and that Thompson was continuing to have sex with her.
Plaintiff told Thompson to stop, but he told her she was being weird, “and was making him feel like he needed to ‘Kavanaugh this bitch right now.' ”
Thompson told Plaintiff she was in his bedroom at his house. When she tried to leave, she found she was too drunk and couldn't find her clothes. She laid down, and woke again around 4:00 a.m. She then walked outside but could not find her car. Thompson told her that her car was parked downtown and that he would drive her to it in the morning.
Plaintiff opened her phone again around 6:00 a.m. and noticed her earlier 2:00 a.m. text to Hurtig. Plaintiff states she had no memory of sending the message. She began texting Hurtig she was in Thompson's bed but they would be leaving soon to take her back to her car. Hurtig asked Plaintiff if she was joking.
The texts between Plaintiff and Hurtig are recounted in the affidavit later prepared by the Lawrence police, with Hurtig first responding to Plaintiff's 2:00 a.m. message:
After she had returned to her home, Plaintiff texted Hurtig, starting: “Get here fast-I'm literally about to have a breakdown.” According to the Amended Complaint, the alcohol had begun to wear off and Plaintiff was feeling upset and very sore.
When Hurtig arrived at Plaintiff's house, she saw Plaintiff was bruised and that she seemed “clearly off-like she was so upset.” A former outpatient psychology center employee before law school, Hurtig suspected that Plaintiff had been raped.
On Saturday, September 29, Hurtig wanted to get Plaintiff out of her house, so she took her out to celebrate Homecoming weekend. Hurtig and her boyfriend, Blake Stokes, drank, but Plaintiff did not. Hurtig and Stokes argued, and Stokes told Hurtig to get all of her stuff out of his house. Plaintiff and Hurtig left, while Stokes went to a party at Thompson's house.
Stokes texted Plaintiff that she was responsible for getting Hurtig out of his house. If she didn't, Stokes said, he would tell everyone that Plaintiff had slept with Thompson, which he had learned from Hurtig. Plaintiff texted back: “I'm pretty sure it was borderline date rape and I have the bruises and statements to prove it.”
Plaintiff alleges in the Amended Complaint that during this Saturday, “hazy memories of the night began to come back.” She remembered someone on top of her, having sex with her. This man had tattoos that were unfamiliar to her; that she did not know who he was. She states she remembered telling Thompson that she didn't want to sleep with him, but he told her that his penis was already inside her. When she told him she wanted him to stop and that Guillot would be mad, Thompson told her it was already done, and Guillot would never want her again. She states she remembered feeling pressure on her neck. The Amended Complaint states that at this point, Plaintiff's “memories were not in an orderly sequence; she could not remember which one happened first, or second, or third.”
Plaintiff told Hurtig at this time,
Plaintiff states that she was afraid people would not believe her, and that she might lose her position at a law firm where she and Thompson had both been hired, and where Guillot was already an associate.
Eventually, Plaintiff told Hurtig she believed Thompson had raped her. Hurtig called a nonemergency number at the LPD and left a message that her friend wished to report a rape.
Officer Affalter returned the call and spoke with Hurtig and Plaintiff, and asked them to meet him outside the Lawrence Memorial Hospital (“LMH”). When they arrived at the hospital, they met Affalter and Detectives Cottengim and Nicholson. Plaintiff and Hurtig gave the officers their cell phones when asked. Nicholson told her she could have it back soon.
Plaintiff told Affalter that she had been raped the day before, saying the details were blurry because she had been drunk at the time. She said she woke up naked in bed while a man was holding her down having sex with her after she told him “no.” She remembered waking up later to find Thompson still having sex with her, and pushing him off before she blacked out again.
Nicholson told Plaintiff her options were to do nothing, allow the police to document the report but do nothing further, or have the police would do a full-scale investigation, including questioning witnesses and collecting evidence. Plaintiff chose the first option, saying she did not want the police to do anything. Nicholson told Plaintiff if she later decided to proceed, she could come down to station and give full statement.
Plaintiff was joined at the hospital by a friend and fellow law student, Lindsie Ford. According to Ford, a victim advocate at the Johnson County District Attorney's Office, Plaintiff appeared distracted and “flat.”
Terri Woodson, a trained SANE nurse at LMH, examined Plaintiff. She collected physical evidence and recorded a small tear and bruising on a diagram of the vaginal area, and took photographs of Plaintiff's bruised neck and extremities. Plaintiff's arms and legs all had bruises or contusions. At the end of the examination, Woodson asked Plaintiff if she wanted to disclose the evidence collected as part of examination to the police. Plaintiff said, “no, ” she did not.
By the time the detectives returned to the hospital, Plaintiff had left. Having seen the text messages between Plaintiff and Hurtig, the detectives doubted that a rape had occurred. Nurse Woodson told the detectives that Plai...
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