# Evillo Domingo v. Marsha Kowalski

> Court of Appeals for the Sixth Circuit · January 7, 2016 · 810 F.3d 403

URL: https://www.frixlaw.com/law-library/cases/9820973

## Case

- **Full name:** 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, 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
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 7, 2016
- **Citations:** 810 F.3d 403; 2016 FED App. 0006P; 2016 U.S. App. LEXIS 128; 2016 WL 76213
- **Precedential status:** Published
- **Opinion:** Concurrence by Batchelder
- **Judges:** Boggs, Batchelder, Huck
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9820973

## How later opinions describe it (automated extraction)

- concluding that even if actions of gagging student with a bandana and forcing a student to toilet- train in view of other students are improper or tortious, as a matter of law they are not egregious actions under the Fourteenth Amendment
- finding teacher’s conduct did not “shock the conscious” where teacher was accused of abuse after gagging a student with a bandana, strapping another to a toilet, and-forcing another to sit with her pants down on a training toilet in front of all of her classmates.
- stating that 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.’”
- explaining that the question is “whether the teacher’s allegedly unconstitutional conduct is properly construed as an attempt to serve pedagogical objectives”
- finding that instead, the teacher’s purpose was to assist her students in meeting their educational goals or to curb disruptive behavior

## Opinion text

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 be *417 cause 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 Fed.Appx. 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9820973. Public record. Not legal advice.