Evillo Domingo v. Marsha Kowalski , 2016 FED App. 0006P ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0006p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
EVILLO DOMINGO and JOSEPHINE DOMINGO, ┐
individually and as parents and natural guardians of │
N.D.; RASHEEDAH GRAY, individually and as parent │
and natural guardian of R.G; ELIZABETH GARCIA, │ No. 14-3957
individually and as parent and natural guardian of │
J.J., >
│
Plaintiffs-Appellants, │
│
│
v. │
│
MARSHA KOWALSKI; NORTH POINT EDUCATIONAL │
SERVICE CENTER; WILLIAM B. LALLY; DAN │
MCCARTHY; CHARLOTTE WAGNER; KAREN STRENG, │
│
Defendants-Appellees.
┘
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 3:13-cv-00094—Jack Zouhary, District Judge.
Argued: June 10, 2015
Decided and Filed: January 7, 2016
Before: BOGGS and BATCHELDER, Circuit Judges; HUCK, District Judge.*
_________________
COUNSEL
ARGUED: Jason D. Winter, REMINGER CO., LPA, Cleveland, Ohio, for Appellants.
Matthew John Markling, MCGOWN & MARKLING CO., L.P.A., Akron, Ohio, for Appellee
Kowalski. John D. Latchney, O’TOOLE, MCLAUGHLIN, DOOLEY & PECORA CO., LPA,
Sheffield Village, Ohio, for North Point Appellees. ON BRIEF: Jason D. Winter, Holly Marie
Wilson, Courtney J. Trimacco, REMINGER CO., LPA, Cleveland, Ohio, for Appellants.
Matthew John Markling, Patrick Vrobel, Sean Koran, MCGOWN & MARKLING CO., L.P.A.,
*
The Honorable Paul C. Huck, Senior United States District Judge for the Southern District of Florida,
sitting by designation.
1
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 2
Akron, Ohio, for Appellee Kowalski. John D. Latchney, O’TOOLE, MCLAUGHLIN,
DOOLEY & PECORA CO., LPA, Sheffield Village, Ohio, for North Point Appellees.
HUCK, D.J., delivered the opinion, in which BOGGS and BATCHELDER, JJ., joined in
part. BATCHELDER, J. (pg. 18), delivered a separate opinion concurring in part and concurring
in the judgment. BOGGS, J. (pp. 19–20), delivered a separate opinion dissenting in part, in
which BATCHELDER, J., joined in part.
_________________
OPINION
_________________
HUCK, District Judge. This is an action brought by three special-education students and
their parents (Appellants) against special-education teacher Marsha Kowalski, her supervisors,
and the North Point Educational Service Center (North Point) (collectively Appellees), for
Appellees’ alleged violation of Kowalski’s students’ Fourteenth Amendment rights to
substantive due process, in contravention of 42 U.S.C. § 1983.1 Appellants allege that Kowalski
abused her students during the 2003–2004 school year by, among other things, gagging one
student with a bandana to stop him from spitting, strapping another to a toilet to keep her from
falling from the toilet, and forcing yet another to sit with her pants down on a training toilet in
full view of her classmates to assist her with toilet-training. Appellants also allege that
Kowalski’s supervisors were deliberately indifferent to this alleged abuse, and that North Point
created an environment primed for abuse by its adoption of allegedly unconstitutional policies
and practices. The district court granted summary judgment to all Appellees because Kowalski’s
instructional techniques, while inappropriate and even “abusive,” did not rise to the conscience-
shocking level required of a substantive due process claim; because Kowalski’s supervisors had
insufficient notice of her actions to be found deliberately indifferent; and because North Point’s
policies and practices were not constitutionally inadequate. We affirm the district court’s
judgment in Kowalski’s favor, because as a matter of law, Kowalski’s conduct did not violate the
Fourteenth Amendment. Because Appellants failed to show an underlying constitutional
1
Appellants also raised state-law tort claims, which the district court dismissed without prejudice.
Appellants have not appealed the dismissal of their state-law claims.
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 3
violation, we also affirm the district court’s summary judgment in favor of North Point and
Kowalski’s supervisors.2
I. BACKGROUND
Appellants’ factual allegations are based almost entirely on the testimony of Suzanne
Brant, who worked as a teaching aide in Kowalski’s special-education class of autistic and
developmentally delayed students during the 2003–2004 school year. As the year progressed,
Brant became increasingly concerned that some of Kowalski’s teaching methods were
inappropriate and abusive. N.D., for example, was a six-year-old autistic and developmentally
delayed girl who was not toilet-trained. N.D. struggled in particular with transitioning from one
activity to another, and when forced to do so, she would sometimes throw tantrums, remove her
clothes, and smear feces on the floor or wall. According to Brant, “just about every day”
Kowalski removed N.D.’s pants and placed N.D. on a training toilet in the classroom, and often
left her on the training toilet for as long as a fourth of the school day. Though Laurie Fogg,
another teaching aide in the class, claimed that N.D.’s training toilet was separated from the
other students by a “partition,” she admitted that the students could easily walk around the
partition and see N.D. Kowalski left N.D. on the training toilet during mealtimes, and sometimes
fed lunch to N.D. while N.D. sat on the toilet. Brant said that Kowalski once “proudly”
displayed one of N.D.’s bowel movements to the class. Kowalski believed that N.D.’s
difficulties in making smooth transitions between activities merited these particular toilet-
training techniques.
Brant also grew concerned over Kowalski’s treatment of R.G., a nine-year-old boy with
autism and hyperactivity disorder. The record establishes that, while he was a student in
Kowalski’s classroom, R.G. frequently exhibited behavior that Kowalski, Brant, and Fogg found
challenging, including spitting, throwing tantrums, screaming, and tripping others. Brant alleged
that, on one occasion in February 2004, she found R.G. strapped to a gurney in the hallway
2
As noted above, in addition to finding that Appellants’ supervisory and Monell claims failed for lack of an
underlying constitutional violation, the district court also held, in the alternative, that Appellants had not satisfied the
substantive requirements of § 1983 supervisory and Monell claims. However, because we conclude that the district
court properly held that Appellants had not shown an underlying violation of their Fourteenth Amendment rights, we
do not address the district court’s alternative bases for granting summary judgment to Kowalski’s supervisors and
North Point.
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 4
outside of the classroom, his mouth gagged with a bandana. Kowalski disputed this. Kowalski
claimed that she only briefly covered R.G.’s mouth with a therapeutic “chewy” that R.G. kept
around his neck on a bandana, for long enough to tell him to stop spitting, and that she did not
restrain R.G. to a gurney. However, accepting Brant’s version of events as true, Brant testified
that she believed that Kowalski had restrained R.G. on this specific occasion to correct R.G.’s
disruptive behavior. Brant also claimed that Kowalski had yelled at R.G. on several occasions,
and had inappropriately restrained him several times in a Rifton Chair, a therapeutic chair
designed to support children who cannot maintain a safe seated position in a stand-alone chair.
Additionally, Brant was concerned with Kowalski’s treatment of J.J., an eleven-year-old
girl with cerebral palsy, autism, and developmental delays. According to Brant, Kowalski
frequently used a belt to strap J.J. to the toilet, and left her strapped to the toilet, alone in the
bathroom, for twenty to thirty minutes at a time. However, as Kowalski explained, J.J. was not
toilet-trained, would frequently soil herself when her diaper was removed, and, due to her
difficulties balancing and her low muscle tone, might fall from the toilet seat without support.
Therefore, Kowalski believed that strapping J.J. to the toilet with a belt was a reasonable
measure to employ in assisting J.J. in learning to safely and properly use a toilet. In fact, toilet-
training was an explicit goal in J.J.’s individual education plan. Kowalski and Fogg also testified
that they always kept J.J. in sight while she was strapped to the toilet.
Finally, Brant became concerned that certain techniques occasionally used by Kowalski
to focus her students’ attention were abusive and inappropriate. According to Brant, Kowalski
would regularly assert control of an unruly or disruptive student by grabbing the student’s face,
squeezing his or her cheeks, and pointing the student’s face toward Kowalski. Brant also
claimed that if a student was not focusing or staying on task Kowalski would have the student
fold his arms on the desk, and then force the student’s head down onto his folded arms.
Neither the students’ parents nor Kowalski’s supervisors were aware of the full extent of
Brant’s concerns until after the end of the 2004 school year. In fact, no parent ever complained
to the school administrators about any mistreatment or reported any concerns about injury to a
child. Kowalski’s class met in a church where Kowalski went largely unobserved by other
teachers or her direct supervisors, aside from a few weekly visits from behavioral and therapeutic
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 5
specialists. Further, due to the students’ limited verbal capacities, their parents relied on
Kowalski’s daily classroom “journal” to keep them informed of the students’ progress.
Kowalski did not reference any of the above-described teaching techniques in her classroom
journal, or otherwise share them with the students’ parents. Brant testified that Kowalski even
appeared to actively conceal her activities by, for example, removing N.D. from her training
toilet shortly before N.D.’s mother arrived to pick her up from school.
Despite her concerns, Brant remained largely silent for most of the school year. In
November 2003, Brant complained to Charlotte Wagner, North Point director of curriculum and
instruction in Huron County, and Karen Streng, Kowalski’s direct supervisor, that Kowalski had
skipped work for a doctor’s appointment without going through North Point’s formal time-off
request process. Following Brant’s complaint, Streng and Wagner visited Kowalski’s classroom,
and Brant complained to them of Kowalski’s inappropriate toilet-training of another student,
J.F.3 Streng and Wagner told Brant that, if she suspected that Kowalski had abused J.F., she
should file a complaint with the appropriate state authorities. Streng later told Kowalski in
general terms that she should not leave children on the toilet unattended for a long period of
time. The record indicates that Kowalski’s supervisors heard no similar complaints about
Kowalski until March 2004, when an unnamed “therapy supervisor” visited Kowalski’s class and
witnessed Kowalski placing N.D. on a training toilet in view of other students. The therapy
supervisor complained to Streng, who instructed Kowalski to stop.
It was not, however, until after North Point indicated that it would not re-employ Brant
that she made known the full scope of her concerns. On April 20, 2004, North Point
Superintendent William Lally informed Brant that he intended to recommend to the North Point
board that it not re-employ Brant for the following school year, for financial reasons. A month
later, Brant complained to Streng that Kowalski was “being mean” to the students and was
“obsessed” with toilet-training. Brant complained, specifically, that Kowalski had yelled at R.G.
and had placed J.J. in a Rifton Chair as punishment. There is no evidence that Streng or Wagner
took any action on these complaints.
3
J.F. was originally a plaintiff in this suit. The district court dismissed J.F.’s claims as barred by res
judicata, because a prior suit filed by J.F.’s parents was dismissed by an Ohio state court for failure to prosecute.
Appellants have voluntarily dismissed J.F.’s appeal.
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 6
Finally, on June 18, 2004—after the end of the school year—Brant met with Lally and
Daniel McCarthy, North Point’s regional director, to more fully express her concerns. For the
first time, Brant described everything she had witnessed in Kowalski’s classroom that troubled
her, including Kowalski’s binding and gagging of R.G.; her inappropriate toilet-training of J.J.
and N.D.; and her inappropriate attention-focusing techniques. According to Brant, Lally was
angry that she had not reported these concerns sooner, and recommended that she file a
complaint of child abuse with the appropriate state authorities. On July 1, 2004, Brant filed a
written report of child abuse with the Huron Department of Job and Family Services.
Lally subsequently contacted Erie County Children’s Services, the Norwalk Law
Director, the Norwalk Police Department, and the Ohio Department of Education, all of which
investigated Brant’s allegations. McCarthy also initiated an internal investigation. North Point
suspended Kowalski for a year with pay, pending completion of these investigations. No
investigation resulted in any charges or sanctions. The Norwalk Police Department brought no
criminal charges, and the Norwalk Law Director concluded that he found “insufficient credible
evidence against Kowalski to substantiate the filing of criminal charges.” The Ohio Department
of Education concluded its investigation with a consent agreement in which Kowalski denied any
wrongdoing, but agreed to complete twenty to thirty “contact hours” of college-level special-
education coursework.
Kowalski fulfilled the terms of the consent agreement in July 2007. As of May 2013,
North Point still employed her. The record indicates, however, that North Point has reassigned
Kowalski as an itinerant teacher and has not provided her with her own classroom since 2004,
nor has it permitted her to teach unsupervised. No one has accused Kowalski of child abuse
since 2004.
Appellants filed this action in the Erie County Court of Common Pleas, asserting several
state-law tort claims and a single claim based on Appellees’ alleged liability under 42 U.S.C.
§ 1983. Appellees removed to the United States District Court for the Northern District of Ohio
on the basis of federal question jurisdiction on January 14, 2013. Appellees filed motions for
summary judgment on January 24, 2014, which the district court granted on August 29, 2014.
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 7
The district court found that Brant’s allegations, taken as true, indicated that Kowalski
“almost certainly engaged in child abuse.” However, the district court, in granting summary
judgment, distinguished abusive behavior from unconstitutional behavior. The district court
found that Kowalski’s actions, while inappropriate, did not rise to the level of a violation of the
students’ substantive due process rights. The district court also granted summary judgment on
Appellants’ supervisory claims against Streng, Wagner, Lally, and McCarthy, and Appellees’
Monell4 claims against North Point, because Appellants had not established that Kowalski had
violated her students’ rights, a pre-requisite of such claims. Further, the district court held that,
even if Kowalski had violated her students’ rights, Kowalski’s supervisors had insufficient notice
of Kowalski’s actions to be found deliberately indifferent. The district court additionally held
that North Point’s abuse policies and training were not constitutionally inadequate.
Finding that Appellants’ § 1983 claims failed as a matter of law, the district court
declined to exercise supplemental jurisdiction over Appellants’ state-law claims and dismissed
those claims without prejudice. This appeal of the district court’s ruling as to Appellants’ § 1983
claims followed. We have jurisdiction under 28 U.S.C. § 1291.
II. ANALYSIS
A. Standard of review
We review a grant of summary judgment de novo, applying the same standard as the
district court. Green Party of Tennessee v. Hargett, 767 F.3d 533, 542 (6th Cir. 2014) (citing
Huckaby v. Priest, 636 F.3d 211, 216 (6th Cir. 2011)). Summary judgment is appropriate where
“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). On review of a summary
judgment order, all evidence is construed in the light most favorable to the non-moving party.
Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013).
4
In Monell v. Department of Social Services, the Supreme Court held that 42 U.S.C. § 1983 provides a
cause of action against a municipality; however, “[a] plaintiff who sues a municipality for a constitutional violation
under § 1983 must prove that the municipality’s policy or custom caused the alleged injury.” Ellis v. Cleveland
Municipal Sch. Dist., 455 F.3d 690, 700 (6th Cir. 2006) (citing Monell v. Dept. of Social Srvs., 436 U.S. 658, 690–
91 (1978)).
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 8
Appellants argue that they adduced evidence demonstrating a genuine dispute of material
fact on whether Kowalski violated the students’ Fourteenth Amendment substantive due process
rights, whether Kowalski’s supervisors were deliberately indifferent to these constitutional
violations, and whether North Point’s policies and procedures created an environment in which
Kowalski could abuse her students with impunity, all in contravention of 42 U.S.C. § 1983. We
disagree. The Due Process Clause provides protection from the arbitrary actions of government
employees, but “only the most egregious official conduct can be said to be arbitrary in the
constitutional sense.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998) (citation,
quotations omitted). As discussed below, while Kowalski’s actions were certainly improper, as a
matter of law they did not rise to the “egregious” level of unjustified misbehavior that the
Fourteenth Amendment proscribes. Therefore, the district court properly granted summary
judgment to all Appellees.
B. Appellants’ § 1983 claim against Kowalski
We first address Appellants’ claim that Kowalski violated her special-education students’
rights to substantive due process. Appellants argue that Kowalski’s teaching techniques violated
their due process rights to be free from physical abuse at the hands of state actors, and to enjoy
personal security and bodily integrity in an educational setting. See Webb v. McCullough,
828 F.2d 1151, 1158 (6th Cir. 1987) (stating that public school students have the right “to be free
of state intrusions into realms of personal privacy and bodily security”) (quoting Hall v. Tawney,
621 F.2d 607, 613 (4th Cir. 1980)). We address such a claim under our well-established “shocks
the conscience” standard. Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 724 (6th Cir. 1996)
(stating that “we have no doubt that the ‘shocks the conscience’ standard is applicable” to a
substantive due process claim brought by a public-school student). That is, to raise a material
issue of fact as to whether Kowalski violated their rights to personal security and freedom from
abuse at the hands of state officials, Appellants must identify conduct that is “so brutal,
demeaning, and harmful as literally to shock the conscience . . . .” Webb, 828 F.2d at 1158
(quoting Hall, 621 F.2d at 613).
We have addressed students’ claims of teachers’ Fourteenth Amendment violations under
the standard first articulated by the Fourth Circuit in its seminal corporal punishment decision,
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 9
Hall v. Tawney. Under the Hall test, the relevant inquiry is “whether the force applied caused
injury so severe, was so disproportionate to the need presented, and was so inspired by malice or
sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and
inhumane abuse of official power literally shocking the conscience.” Webb, 828 F.2d at 1158
(quoting Hall, 621 F.2d at 613). These are certainly appropriate considerations for any case,
including this one, involving a claim that a teacher violated a student’s rights to substantive due
process. And in this case, which involves a challenge to educational techniques rather than
corporal punishment, it is also particularly important to consider the relationship of Kowalski’s
allegedly unconstitutional conduct to any legitimate pedagogical purpose.
Therefore, we analyze Appellants’ claims under the useful framework developed by the
Third Circuit in Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168 (3d Cir. 2001). In
Gottlieb, the Third Circuit analyzed a student’s constitutional claim under the “shocks the
conscience” standard by considering the following:
a) Was there a pedagogical justification for the use of force?; b) Was the force
utilized excessive to meet the legitimate objective in this situation?; c) Was the
force applied in a good-faith effort to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing harm?; and d) Was there a serious
injury?
Gottlieb, 272 F.3d at 173. Gottlieb, although itself a corporal punishment case, provides a
useful, though not necessarily exhaustive, list of factors to balance in evaluating a student’s
claim that a teacher’s educational and disciplinary techniques violated the Fourteenth
Amendment. Further, while Gottlieb sets out perhaps a more focused inquiry on the
“pedagogical justification” motivating a teacher’s alleged unconstitutional conduct than Hall, it
is fully consistent with our precedent applying the “shocks the conscience” standard, as
demonstrated below. Therefore, we address each Gottlieb factor in turn.
1. Pedagogical justification
The relationship of Kowalski’s actions to a pedagogical purpose is a particularly
important factor to consider in this case, as “conduct intended to injure in some way unjustifiable
by any government interest is the sort of official action most likely to rise to the conscience-
shocking level.” Cty. of Sacramento, 523 U.S. at 847 (emphasis supplied). The district court
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 10
held that Kowalski’s legitimate educational goal of toilet-training and legitimate disciplinary
goal of maintaining order and focus in her classroom provided a pedagogical justification for her
actions. Appellants note that the district court explicitly characterized Kowalski’s actions as
“child abuse,” and argue that child abuse can never be considered “pedagogical.” Abuse alone,
however, is not the standard at issue on Appellants’ due process claims. Rather, the issue is
whether the teacher’s allegedly unconstitutional conduct is properly “construed as an attempt to
serve pedagogical objectives.” Gottlieb, 272 F.3d at 174 (emphasis supplied); see also Webb,
828 F.2d at 1158 (distinguishing a principal’s non-disciplinary attack on a student outside of
school from “disciplinary blows, inflicted as punishment for the proper education and discipline
of the child”). As stated by the Eleventh Circuit, the “key inquiry is not what form the use of
force takes but whether the use of force is related to the student’s misconduct at school and for
the purposes of discipline.” T.W. v. Sch. Bd. of Seminole Cty., Fla., 610 F.3d 588, 598–99 (11th
Cir. 2010) (internal quotation marks, brackets, and punctuation omitted).
In other words, the pedagogical purpose factor of the Gottlieb test first looks to the ends
motivating the teacher’s actions and not the means undertaken to achieve those ends. In a case
with conduct more offensive than the conduct at issue in this case, for example, the Eleventh
Circuit evaluated whether a special-education teacher’s patently “abusive behaviors” were
capable of being construed as having a disciplinary or educational purpose. T.W., 610 F.3d at
594–96. The teacher in T.W. frequently directed profane insults at T.W., an autistic student in
her classroom, calling him “lazy, an asshole, a pig, and a jerk.” Id. at 594. When her insults
provoked T.W. into agitation and misbehavior, the teacher—who outweighed T.W. by 150
pounds—acted even more inappropriately by, among other things, yanking T.W. from his chair
so that his legs struck his desk, throwing him to the ground face-down, climbing on top of him
while pulling his arms or leg behind his back, twisting his arm behind his back, and intentionally
tripping him. Id. at 595–96. Despite the teacher’s obviously abusive behavior, the Eleventh
Circuit nevertheless found that her “use of force . . . was related to T.W.’s disruptive or self-
injurious conduct and was for the purpose of discipline.” Id. at 599.
Similarly, in Flores v. Sch. Bd. of DeSoto Par., 116 F. App’x 504, 510–11 (5th Cir.
2004), the Fifth Circuit held that a student failed to state a substantive due process claim against
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 11
his coach for shoving the student against a wall, putting the student in a headlock, and insulting
the student. The court in Flores found that the coach’s assault, while improper and possibly
tortious, was motivated by the coach’s intent to discipline the student for tardiness and
insubordination. Id. Because the coach “intended to discipline the student for the purpose of
maintaining order and respect,” the Fifth Circuit affirmed the district court’s dismissal of the
student’s Fourteenth Amendment claim. Id.; see also D.D. v. Chilton Cty. Bd. of Educ., 701 F.
Supp. 2d 1236, 1241–42 (M.D. Ala. 2010) (teacher’s temporary restraint of a disabled child in a
Rifton Chair was a “reasonable response” to the child’s “disruptive behavior”); G.C. v. Sch. Bd.
of Seminole Cty., Fla., 639 F. Supp. 2d 1295, 1305 (M.D. Fla. 2009) (special-education teacher’s
acts of striking, grabbing, and restraining a disabled student did not “shock the conscience,”
because the teacher’s restraints were done for “safety purposes”).
Taking all facts in the light most favorable to Appellants, Kowalski used inappropriate
instructional and disciplinary methods. However, as was the conduct of the special-education
teacher whose inappropriate techniques were examined by the Eleventh Circuit in T.W.,
Kowalski’s educational and disciplinary techniques, though certainly questionable, were utilized
for a proper educational purpose. In fact, the record here establishes that Kowalski’s conduct
was, if anything, much more closely related to a legitimate pedagogical purpose than the
obviously “abusive behaviors” exhibited by the T.W. teacher. Kowalski’s complained-of
conduct involved attempts, albeit misguided ones, to address her special-education students’
undisputed educational or disciplinary needs. J.J., for example, was not toilet-trained, struggled
with balance, and would soil herself unless she had some assistance in using the bathroom. In
fact, J.J.’s individualized education plan included toilet-training as one of her educational goals.
Kowalski attempted to assist J.J. in meeting her goal of safely and properly using the toilet by
securing J.J. to the toilet with a belt. N.D., as J.J., also was not toilet-trained, and Kowalski
attempted to meet N.D.’s needs by placing her on a training-toilet in the classroom. While this
was certainly offensive to N.D.’s dignity, Kowalski’s undisputed motivation was to assist
N.D.—who would become highly agitated at the slightest change in routine—to relax and
properly use the toilet, and not to humiliate or punish her. Similarly, Kowalski’s attention-
focusing techniques of squeezing students’ faces and pushing their heads down onto their folded
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 12
arms were, in Brant’s own words, applied only in situations where “the children weren’t staying
on task . . . or focusing.”
Finally, Kowalski’s one-time restraint of R.G. also is properly construed as related to a
legitimate pedagogical objective. R.G. frequently required training in addressing numerous
misbehaviors, including tripping and pushing others, spitting at teachers or other students,
throwing tantrums, and screaming. On the one occasion that Brant found R.G. “bound and
gagged”5 in the church hallway, R.G. had been spitting and scratching at himself, and refusing to
stop despite Kowalski’s multiple verbal requests. Kowalski testified that she “needed to be firm”
to help R.G. to correct this misbehavior. Taking Brant’s claim that Kowalski strapped R.G. to a
gurney and bound his mouth as true, the record establishes that Kowalski used this unorthodox
method to stop R.G. from spitting, and to address his disruptive and defiant behavior in class.
Indeed, Brant acknowledged that Kowalski had restrained R.G. to correct his behavior, rather
than to harm or humiliate him. Therefore, while Kowalski’s restraint of R.G. was insensitive and
improper, we nevertheless find that Kowalski had a legitimate educational purpose—addressing
R.G.’s misbehavior.
In finding that Kowalski’s actions clearly served a legitimate, identifiable pedagogical
purpose, we do not pass judgment on the advisability of these interventions as special-education
practices. Indeed, based on the testimony of Appellants’ expert, Dr. Helen Malone, Kowalski’s
methods were improper and counterproductive. However, special-education professional
standards are not the relevant consideration in an analysis of whether a teacher’s conduct
violated the Fourteenth Amendment. As the Eleventh Circuit stated in T.W., “we do not express
any judgment as to the desirability of corporal punishment as a policy matter. Instead, we look
at the circumstances surrounding [the] use of force to determine whether the force is ‘capable of
being construed as an attempt to serve pedagogical objectives.’” T.W., 610 F.3d at 599 (quoting
Gottlieb, 272 F.3d at 174). Here, the surrounding circumstances indicate a clear educational or
5
As previously stated, Kowalski denied Brant’s claim that she “bound and gagged” R.G. on a gurney, and
claimed that she had merely covered his mouth for long enough to tell him to stop spitting. However, as Plaintiffs
are the parties defending summary judgment, we view all evidence in the light most favorable to them, and accept
Brant’s version of events as true. See Ruffin-Steinback v. dePasse, 267 F.3d 457, 461 (6th Cir. 2001) (citation
omitted).
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 13
disciplinary motive for each of Kowalski’s allegedly unconstitutional acts, and therefore this
factor weighs in Kowalski’s favor.
2. Excessiveness
Having established that Kowalski’s actions were related to pedagogical goals, we next
examine whether her techniques were excessive with respect to those goals. See Gottlieb,
272 F.3d at 173. We have made clear that, when a teacher’s allegedly unconstitutional conduct
was motivated by a legitimate educational or disciplinary goal, the conduct must be clearly
extreme and disproportionate to the need presented to be excessive in the constitutional sense. In
Saylor v. Bd. of Educ. of Harlan Cty., Ky., 118 F.3d 507, 511 (6th Cir. 1997), for example, a
teacher paddled an eighth grade student so hard that it knocked the breath from the student, and
left visible bruises and swelling on the student. Despite the teacher’s admission in retrospect that
the use of force in the paddling “was excessive,” we nevertheless held that it was not “so severe”
or “disproportionate to the need presented” that it violated the Fourteenth Amendment. Id. at
515 (quoting Ingraham v. Wright, 525 F.2d 909, 916 (5th Cir. 1976)). Indeed, even in a case
where a teacher slapped a student with no pedagogical purpose whatsoever, we held that the
single slap was not unconstitutionally excessive, because it “was neither severe in force nor
administered repeatedly.” Lillard, 76 F.3d at 726.
Here, as well, Appellants have presented no evidence that Kowalski’s educational and
disciplinary methods were “severe in force,” or otherwise constituted a “brutal and inhumane”
abuse of power. As to Kowalski’s toilet-training of J.J. and N.D., for example, the force that
Kowalski applied—if she applied any force at all—was no more than arguably necessary to keep
these students safely on their toilets. Further, the force that Kowalski applied in squeezing her
students’ faces, or pushing the students’ heads down onto their folded arms, was minimal, and
therefore not excessive. The use of force that Kowalski applied in restraining R.G. also was not
unconstitutionally excessive, as it occurred a single time, and for only the duration intended to
correct R.G.’s spitting and disruptive behavior. See Lillard, 76 F.3d at 726.
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 14
3. Intent
In evaluating the third factor in Gottlieb’s framework, we consider whether Kowalski
acted “in a good-faith effort to maintain or restore discipline or maliciously and sadistically for
the very purpose of causing harm[.]” Gottlieb, 272 F.3d at 174. This factor focuses our attention
on “what animated [Kowalski’s] action or [her] intent in acting.” Id. Absent direct evidence of a
malicious intent, courts look to the surrounding circumstances to determine whether a school
official’s conduct was undertaken in a good-faith effort to educate, train, or maintain discipline,
or for the purpose of causing harm. In Gottlieb, for example, a teacher physically pushed a
student without a legitimate educational or disciplinary purpose. The Third Circuit, however,
concluded that “[t]he push itself was so minor that even if the injuries she alleges occurred, it
cannot be inferred from the act itself that Carbonara intended to act maliciously and sadistically
so as to constitute a constitutional violation. . . . Thus, Carbonara’s conduct, although possibly
tortious, does not give Gottlieb a constitutional cause of action.” Id. at 175.
The Fourth Circuit’s decision in H.H. v. Moffett, 335 F. App’x 306 (4th Cir. 2009), is
instructive in its contrast to the lack of evidence of malice and sadism presented by Appellants in
this case. In H.H., a disabled child’s mother became concerned because, after her child enrolled
in a new special-education class, the child exhibited growing distress and suffered from
increasingly regular “grand mal” seizures. Id. at 307–09. The child’s mother attached a
recording device to the child’s wheelchair, which recorded teachers insulting the child, cursing at
her, conspiring to prevent her from receiving necessary educational services, and keeping her
restrained in her wheelchair for hours at a time. Id. at 309. The Fourth Circuit held that the
objective evidence of the teachers’ open hostility to the child proved that their abusive conduct
had no valid purpose; instead, it was motivated by malice, callousness, and deliberate
indifference to the child’s rights. Id. at 313.
Here, by contrast, Appellants have provided no direct evidence that Kowalski’s actions
were motivated by malice, callousness, or deliberate indifference. Appellants have offered no
evidence that Kowalski regularly berated or insulted her special-education students, conspired to
keep them from receiving necessary services, or punished them without any legitimate reason for
doing so. Nor may an improper purpose be inferred simply from the challenged acts themselves.
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 15
Indeed, the facts reveal that Kowalski’s purpose, in most instances, was to assist her students in
meeting their educational goals, and in the others, to curb disruptive behavior. The mere fact
that Kowalski did not use good or even acceptable practices to accomplish these goals is simply
insufficient to raise an inference that she undertook these practices with a malicious or sadistic
intent.
4. Injury
The final Gottlieb factor directs a court to consider whether any Appellant suffered a
“serious injury.” Gottlieb, 272 F.3d at 173. Appellees contend that Appellants’ constitutional
claims fail outright under this factor, based on Appellants’ failure to adduce evidence of a serious
physical injury. Appellees posit that psychological injury alone is insufficient as a matter of law
to prove that a plaintiff suffered a violation of her right to substantive due process. Appellees’
proposition that we pose an absolute requirement of physical injury for substantive due process
claims is misplaced. While we have never explicitly addressed whether a Fourteenth
Amendment substantive due process claim must be substantiated with evidence of a serious
physical injury, as opposed to a serious psychological injury, our precedent shows that we
impose no such bright-line requirement.
In Webb, for example, we determined that a student’s claim that her principal physically
attacked her off school grounds was sufficient to raise a triable issue on the student’s substantive
due process claim, without any discussion of the seriousness of the student’s injury. 828 F.2d at
1159. Also, in Nolan v. Memphis City Schs., 589 F.3d 257 (6th Cir. 2009), we noted that the
student—in addition to sustaining no dramatic physical injuries—“also produced scant evidence
of significant psychological injury stemming from the paddling.” Id. at 269–70 (emphasis
supplied). Other circuits have more explicitly refused to enact a bright-line rule requiring that a
student bringing a substantive due process claim must demonstrate a serious physical, as opposed
to psychological, injury. See T.W., 610 F.3d at 601–02 (“[W]e can imagine a case where an
exercise of corporal punishment—even one that causes only psychological injury—” might
support a due process violation); Abeyta v. Chama Valley Indep. Sch. Dist., No. 19, 77 F.3d
1253, 1257-58 (10th Cir. 1996) (“We are unwilling to hold that actions which inflict only
psychological damage may never achieve the high level of ‘a brutal and inhuman abuse of
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 16
official power literally shocking to the conscience’” (citation omitted)); White v. Rochford,
592 F.2d 381, 385 (7th Cir. 1979) (“[W]e nonetheless feel that the protections of the Due Process
Clause against arbitrary intrusions on personal security include[] both physical and emotional
well-being.”).
We, too, can imagine a case in which evidence of serious psychological injury could
support a Fourteenth Amendment substantive due process claim. However, that is not the case
here. Appellants have presented no evidence of any serious injury, physical or otherwise.
Appellants contend that our decision in Webb, which did not provide a detailed discussion of the
plaintiff’s injury, and focused instead on the maliciousness and egregiousness of the school
official’s conduct, indicates that they may survive summary judgment without presenting proof
of any injury. Webb, however, examined a case in which a school principal physically assaulted
a student, off school grounds, with no readily apparent educational or disciplinary goal.
See Webb, 828 F.2d at 1154. Indeed, we stated explicitly in Webb that the facts of that case gave
no indication that “the blows arose other than in anger or from malice.” Id. at 1158; see also
Saylor, 118 F.3d at 514 (“Webb is not directly on point here, because it involved a battery that
was in no way ‘disciplinary’—and we stressed the importance of distinguishing the type of
battery at issue in Webb from the disciplinary blows inflicted as punishment in Ingraham.”).
Here, by contrast, Kowalski’s allegedly unconstitutional conduct, in addition to resulting in no
demonstrated serious injury, occurred in the classroom context, and was related to legitimate
pedagogical goals.
5.
Kowalski’s educational and disciplinary methods, as reported by Brant, may have been
inappropriate, insensitive, and even tortious. This does not, however, render them
unconstitutional. As we stated in Lillard and Webb, “the substantive due process claim is quite
different than a claim of assault and battery under state tort law . . . .” Lillard, 76 F.3d at 725
(quoting Webb, 828 F.2d at 1158); see also Lewis, 523 U.S. at 848 (The Due Process Clause does
not impose liability “whenever someone cloaked with state authority causes harm.”). The
evidence establishes that Kowalski attempted to toilet-train and control her special-education
students in furtherance of valid pedagogical goals. The methods she employed to accomplish
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 17
these goals do not shock the conscience. Moreover, Appellants produced no evidence that
Kowalski acted out of malice, callousness, or deliberate indifference. Appellants also produced
no evidence that any student suffered a serious physical or psychological injury. Therefore, the
district court did not err in granting summary judgment to Kowalski on Appellants’ substantive
due process claims.
C. Appellants’ § 1983 claims against North Point and Kowalski’s supervisors
Because we find that Kowalski’s conduct did not rise to the conscience-shocking level
required of a Fourteenth Amendment substantive due process claim, there is no basis for holding
her supervisors or school district liable. See McQueen v. Beecher Cmty. Schs., 433 F.3d 460,
470–71 (6th Cir. 2006) (noting that a prerequisite of supervisory and Monell liability under
§ 1983 is unconstitutional conduct by a municipal employee).
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 18
_______________________________________________________________
CONCURRING IN PART AND CONCURRING IN THE JUDGMENT
_______________________________________________________________
ALICE M. BATCHELDER, Circuit Judge, concurring in part and concurring in the
judgment. I agree with much of Judge Huck’s thoughtful opinion. I write separately because I
agree with the partial dissent that if R.G. was bound and gagged as Brant claims, that was a
grossly disproportionate response to his spitting, and because I agree that a reasonable jury could
infer from that evidence that Kowalski acted with malice.
And while I also agree with the dissent that, in assessing the injury requirement, this
court should consider the peculiar difficulties faced by children such as R.G. who are non-verbal
and severely disabled, I nevertheless concur in the judgment because there is simply no evidence
of any injury in this case. Nor, as the district court rightly noted, is there evidence of distress or
anxiety that might imply injury. Cf. H.H. ex rel. H.F. v. Moffett, 335 F. App’x 306, 308 (4th Cir.
2009) (“H.F. began to notice that her daughter[, who had limited verbal capacity,] was becoming
increasingly distressed, anxious, and angry about her experiences [at school].”). In fact, the
record does not contain a single complaint by any parent.
The lack of injury is dispositive. And I accordingly concur in part and concur in the
judgment.
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 19
__________________________
DISSENTING IN PART
__________________________
BOGGS, Circuit Judge, dissenting in part. I concur in the majority’s well-reasoned
opinion with respect to the claims of N.D. and J.J. However, I dissent with respect to dismissing
R.G.’s claim on summary judgment.
Cases involving teacher action with respect to severely disabled or disturbed students can
be very difficult, as it is undoubtedly true that measures may need to be taken that are quite
different from those in a conventional classroom. The majority opinion generally sets out these
difficulties well and applies them to several of the appellants. However, with respect to R.G., I
cannot say that there is no genuine issue of material fact as to the objective reasonableness of the
teacher’s actions in binding and gagging him.
First, I think that in the application of the Gottlieb factors, 272 F.3d at 173, the court’s
emphasis on actions that are “capable of being construed” as serving a pedagogical objective
distracts from what should be the focus of the inquiry: actions that in fact do serve such
objectives. The Gottlieb court’s language makes clear, as would the grammar of the sentence,
that being “capable of being construed” as serving pedagogical objectives is merely a necessary
condition to create a factor pointing against summary judgment, but not a completely sufficient
one. Many things that might be capable of being construed in a certain way are also subject to
genuine dispute, and on summary judgment that genuine dispute cannot be discounted.
In this case, although R.G. was certainly disruptive and his spitting was troubling, the
teacher’s action in binding him to a gurney and gagging him with a bandana could be found by a
reasonable jury to shock the conscience. At this stage we are not empowered to decide either
that the action was or was not shocking on these facts, but merely whether there is a genuine
issue.
I would point to the factors that a reasonable jury might rely on: this particular discipline
was never repeated, although R.G. acted in this manner on several occasions; the actions were
the subject of severe criticism by a teacher’s aide; and if there were no legitimate pedagogical
No. 14-3957 Domingo, et al. v. Kowalski, et al. Page 20
necessity for this action, then the significant degree of force employed could be taken by a
reasonable jury to be malicious or sadistic.
Finally, I would note that the fourth Gottlieb factor, whether a “serious injury” occurred,
may need to be assessed in light of the particular problems of a non-verbal severely disabled
child. The fact that a child may have difficulty in expressing emotional disturbance from such
treatment would counsel in favor of greater latitude, not less, in consideration of that factor.
Otherwise the result is lessened protections, rather than “heightened protections for disabled
pupils” as referenced in numerous decisions. Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479
F.3d 1175, 1182 (9th Cir. 2007); see also Sagan v. Sumner Cty. Bd. of Educ., 726 F. Supp. 2d
868, 885 (M.D. Tenn. 2010) (noting that an educator’s constitutional responsibility to special-
needs students is “inevitably heightened”); M.S. ex rel. Soltys v. Seminole Cty. Sch. Bd., 636 F.
Supp. 2d 1317, 1323 (M.D. Fla. 2009) (“The conscience-shocking threshold is more quickly
reached in cases where the victim is particularly vulnerable to abuse and is otherwise
defenseless.”).
In addition, we have not rigidly treated the existence of a serious injury as a mandatory
requirement, but rather as evidence that force was excessive. See, e.g., McDowell v. Rogers,
863 F.2d 1302, 1307 (6th Cir. 1988) (denying qualified immunity even though victim “may not
have suffered a ‘serious or permanent injury’ as a result of the alleged blows . . . [since] there
was clearly no need for the[ blows]”); Webb v. McCullough, 828 F.2d 1151, 1158–59 (6th Cir.
1987) (denying qualified immunity when victim produced no evidence of serious physical injury
because a trier of fact could have found “that the alleged blows were a brutal and inhumane
abuse of . . . official power”).
Although this case is difficult, I think the balance of factors should preclude granting
summary judgment against R.G.’s claim and should rather allow that claim to go to a factfinder.
I therefore respectfully dissent with respect to that portion of the majority opinion.