Evillo Domingo v. Marsha Kowalski

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.