*1 claim plaintiffs “failure to intervene” Josephine Evillo who witnessed the tas- DOMINGO Domin against the officers individually go, parents if Kowolonek can ing, ruling that and as “[e]ven guardians N.D.; that the officers had reason to know show natural Rasheedah used him” due to a taser would be Gray, individually parent and as warning, tasing officer’s officers guardian R.G; natural Elizabeth opportunity stop tasing lacked the Garcia, individually parent and as only the entire altercation lasted because guardian J.J., natural Plaintiffs- minutes, “could and the use the taser Appellants, only have lasted for a fraction of this v. time.” Id. at 539. This Court reached the case, tasing same result another Wells KOWALSKI; Marsha North Point Edu Dearborn, 640, City Fed.Appx. at Center; cational Service William B. tasing only because the there occurred Lally; McCarthy; Dan Charlotte “fleeting point[] once and at a time.” Wagner; Streng, Karen Defendants- “in The court reasoned that the absence of Appellees. ongoing, repeated tasing, there was no No. 14-3957.
way for to intervene and [the officers] prevent harm.” Id. As Kowolonek and Appeals, United States Court of Wells, Deputy Lopez discharged his Taser Sixth Circuit. once, only and the Taser lasted application 10, Argued: June 2015. only Appellee five seconds. Br. 10. And tasing in Kowolo- warning like officer’s 7, Decided and Filed: Jan. nek, Deputy Lopez’s warning that he Rehearing En Banc Denied change did would use the Taser Feb. and, brief duration of the force itself there- fore, an opportunity did not create
Deputy Maher to intervene. reasons, majority’s
For these reli- There, misplaced.
ance on Goodwin plaintiff
found that the stated a constitu-
tional violation where the officers confront- prolonged application
ed “a of force”—a
twenty-one-second initial tasing followed tasing an additional five-second —be- interrupted
cause the officers could have prevented repeti-
the abuse or at least its Goodwin,
tion. 329. As
stated, Deputy Maher could not have acted Thus, Deputy five seconds. Maher is qualified immunity
entitled to event. reasons,
For the I foregoing respectfully
dissent. *3 Winter, Reminger D.
ARGUED: Jason
Co.,
Cleveland, OH,
LPA,
Appellants.
for
Markling,
&
Matthew John
McGown
L.P.A.,
Co.,
Akron, OH,
Ap-
Markling
for
Latchney,
pellee
John D.
Kowalski.
O’Toole,
Dooley
McLaughlin,
& Pécora
Co., LPA,
OH,
Village,
Sheffield
for North
ON BRIEF:
D.
Appellees.
Point
Jason
Wilson,
Winter,
J.
Holly
Courtney
Marie
Co.,
Cleveland,
Trimacco,
LPA,
Reminger
stop
a bandana to
him from
Ohio,
dent with
Appellants.
for
Matthew John
Koran,
to a toilet to
Vrobel,
spitting, strapping another
Sean
Markling, Patrick
toilet,
L.P.A., Akron,
keep
falling from the
Co.,
her from
Markling
&
McGown
pants
another
with her
forcing yet
to sit
OH,
Kowalski.
John D.
Appellee
training
in full
of her
O’Toole,
down on a
toilet
view
Dooley &
Latchney,
McLaughlin,
LPA,
OH,
to assist her with toilet-train
Village,
classmates
Co.,
Sheffield
Pécora
ing.
allege
Kowal
Appellants also
Appellees.
for North Point
deliberately indif
supervisors
ski’s
were
BATCHELDER,
Before: BOGGS
abuse,
alleged
ferent
to this
HUCK,
Judge.*
District
Judges;
Circuit
North
created an environment
Point
adoption
alleg
primed for abuse
its
HUCK, D.J.,
opinion,
delivered the
edly
policies
prac
unconstitutional
BATCHELDER, JJ.,
which BOGGS
*4
summary
granted
tices. The district court
BATCHELDER,
joined
(pp.
in
J.
part.
judgment
Appellees
to all
because Kowal
416-17),
separate opinion
delivered
techniques,
inap
ski’s
while
instructional
concurring in
part
in
and
the
concurring
“abusive,” did
propriate and even
not rise
417-18),
BOGGS,
judgment.
(pp.
J.
conscience-shocking
required
the
level
in
opinion dissenting
separate
delivered a
claim;
be
substantive due
BATCHELDER, J., joined
in which
part,
cause
had insuffi
supervisors
Kowalski’s
part.
in
cient
of her actions
be found
notice
indifferent;
deliberately
and because
OPINION
practices
policies
North Point’s
and
were
constitutionally inadequate.
af
not
We
HUCK,
Judge.
District
judgment
firm
in
the district court’s
Kow
spe
action
three
brought
This
an
favor,
law,
a matter
alski’s
because as
parents
students and their
cial-education
the
conduct did
violate
Kowalski’s
(Appellants)
special-education
Appel
Fourteenth Amendment. Because
Kowalski,
supervisors,
teacher Marsha
underlying
lants failed to show an
constitu
Point
Service
and
North
Educational
violation,
tional
we
affirm'
also
the district
(North Point) (collectively Appel
Center
summary
judgment
favor of
court’s
lees),
alleged
for
violation of
Appellees’
supervisors.2
North Point
Kowalski’s
students’ Fourteenth Amend
Kowalski’s
rights
process, in
ment
to substantive due
I. BACKGROUND
§
Ap
of 42
1983.1
contravention
U.S.C.
Appellants’
allegations
factual
allege that Kowalski abused her
are based
pellants
testimony
entirely on the
during
year
the 2003-2004 school
almost
Su-
students
Brant,
things;
teaching
zanne
who
as
by,
gagging
other
one stu-
worked
among
*
alternative,
Huck,
Appellants
Paul C.
Senior United
that
had not satisfied
The Honorable
Judge for
States
the Southern District
requirements
super-
§
District
substantive
Florida,
sitting
designation.
However,
visory and Monell claims.
because
claims,
Appellants
properly
also raised
tort
state-law
we
district court
conclude
which the district court dismissed without
held
not shown
under-
Appellants
had
an
Appellants
appealed
prejudice.
have not
lying violation of their Fourteenth Amend-
their state-law claims.
dismissal of
rights,
do
ment
not address the district
granting
alternative
for
sum-
court’s
bases
above,
finding
2. As noted
addition
mary
supervisors
judgment to
Appellants’ supervisory and Monell claims
North Point.
underlying
an
failed for lack of
constitutional
held,
violation,
the district court also
special-education
aide in Kowalski’s
disputed
class
this. Kowalski claimed that she
developmentally delayed
of autistic and
only briefly covered R.G.’s mouth with a
during
students
year.
2003-2004 school
therapeutic “chewy” that R.G. kept around
year progressed,
As the
Brant became in-
bandana,
his neck on a
long
enough to
creasingly concerned that some of Kowal-
tell him stop
spitting, and that she did
teaching
ski’s
methods were inappropriate
not restrain
gurney. However,
R.G. to a
N.D.,
and abusive.
for example, was a six-
accepting
true,
Brant’s version of events as
year-old autistic
developmentally
de- Brant testified that she believed that Kow-
layed girl who was not
toilet-trained.
alski had restrained R.G. on
specific
this
struggled
particular
N.D.
with transi-
occasion to correct R.G.’s disruptive behav-
tioning
another,
from one activity to
and ior. Brant also claimed that Kowalski had
so,
when forced to do
she would sometimes
yelled at
occasions,
R.G. on several
tantrums,
clothes,
throw
remove her
and had inappropriately restrained him several
smear feces on the floor or wall. Accord-
Chair,
times
a Rifton
therapeutic
chair
Brant,
ing
“just
about every day” Kow- designed to support children who cannot
alski
pants
removed N.D.’s
placed
maintain a
position
safe seated
in a stand-
N.D. on a training
classroom,
toilet in the
alone chair.
and often left her on
training
toilet for
Additionally, Brant was concerned with
long
as a fourth
day.
of the school
J.J.,
Kowalski’s treatment of
an eleven-
Though Laurie Fogg, another
teaching
*5
year-old girl
autism,
palsy,
cerebral
class,
aide
claimed that N.D.’s train-
and developmental delays. According to
ing toilet
separated
was
from the other
Brant, Kowalski frequently used a belt to
by
“partition,”
students
a
she admitted
strap
toilet,
J.J.
to the
and left her
that the
easily
students could
walk around
toilet,
strapped to the
alone in the bath-
partition
and see N.D. Kowalski left
room,
twenty
for
thirty
minutes at a
N.D.
training
on the
during
toilet
meal-
However,
time.
explained,
as Kowalski
times, and sometimes fed lunch to N.D.
toilet-trained,
J.J. was not
frequent-
would
while N.D. sat on the toilet. Brant said
ly soil herself when her diaper was re-
that
“proudly”
Kowalski once
displayed
moved, and, due to her difficulties balanc-
one of N.D.’s bowel movements to the
ing
tone,
and her low muscle
might fall
class. Kowalski believed that N.D.’s diffi-
from the toilet
support.
seat without
making
culties in
smooth transitions be-
Therefore,
strap-
Kowalski believed that
tween activities merited
particular
these
ping J.J. to the toilet with a belt was a
toilet-training techniques.
employ
reasonable measure to
in assisting
Brant
grew
also
concerned over Kowal-
J.J. in learning
safely
and properly use
R.G.,
ski’s treatment of
nine-year-old
boy
fact,
In
toilet.
toilet-training was an
with autism and hyperactivity disorder.
explicit
goal
J.J.’s individual education
that,
The record establishes
while he was a
plan. Kowalski
Fogg
also testified
classroom,
student in Kowalski’s
R.G. fre-
they always
that
kept
sight
J.J. in
while
quently
Kowalski,
exhibited behavior that
strapped
she was
to the toilet.
Brant,
Fogg
challenging,
found
includ-
ing spitting,
tantrums,
Finally, Brant
throwing
became
scream-
concerned
ing, and tripping
techniques occasionally
others. Brant
certain
alleged
used
that, on
one occasion in February
Kowalski to focus her students’ attention
she
strapped
found R.G.
gurney
to a
were abusive and inappropriate.
Accord-
hallway
classroom,
Brant,
outside of the
ing
his
regularly
Kowalski would
mouth gagged with a bandana. Kowalski
unruly
assert control of an
or disruptive
face,
process. Following
off
Brant’s
by grabbing
request
student
student’s
cheeks,
complaint,
Wagner
or
squeezing
pointing
Streng
his
visited
classroom,
Brant Kowalski’s
and Brant com
the student’s face toward Kowalski.
plained
if a
to them
inappropri
also
student was not
of Kowalski’s
claimed
student,
ate
staying
toilet-training
on task Kowalski would
of another
J.F.3
focusing or
that,
desk, Streng
Wagner
fold his
on the
told Brant
if she
have the student
arms
suspected
J.F.,
force the
head
that Kowalski had abused
and then
student’s
down
complaint
she
file
with the appro
onto his folded arms.
should
later
priate
Streng
state authorities.
told
parents
nor
Neither
students’
Kow-
general
Kowalski in
terms that she should
supervisors were aware of
full
alski’s
on the
leave children
toilet unattended
extent of Brant’s concerns until after the
long period
time.
record
year.
fact,
end
the 2004 school
no
supervisors
indicates
to the school ad-
parent
complained
ever
complaints
heard no similar
about Kowal
any
or
ministrators about
mistreatment
ski
March
an
until
when
unnamed
reported any
concerns about
to a
supervisor”
“therapy
visited Kowalski’s
child. Kowalski’s class met in a church
placing
class and witnessed Kowalski
N.D.
largely
where Kowalski went
unobserved
training
on
toilet
view of other stu
supervi-
teachers or her
other
direct
supervisor complained
The therapy
dents.
sors,
from
weekly
aside
a few
visits from
to Streng, who instructed Kowalski to
and therapeutic
specialists.
behavioral
stop.
Further,
the students’ limited ver7
not, however,
It
capacities,
parents
bal
their
relied on Kow-
until after North
daily
“journal” to keep
re-employ
alski’s
classroom
Point indicated that it would not
progress.
them informed of the students’
Brant that she made known the full scope
20, 2004,
April
did not
Kowalski
reference
her concerns. On
North
teaching techniques
Superintendent
Lally
above-described
her Point
William
in-
journal,
classroom
Brant
otherwise share
formed
that he intended to recom-
*6
parents.
them
students’
Brant mend to the North Point board that
it
appeared
re-employ
following
testified
Kowalski even
Brant for the
school
actively
by,
year,
later,
conceal her
for
A
activities
exam-
for financial reasons. month
removing
ple,
training
complained
N.D. from her
toilet Brant
Streng
Kowalski
shortly
“being
before N.D.’s mother arrived to was
mean” to the students and was
pick
up from
toilet-training.
her
school.
“obsessed” with
Brant
complained, specifically, that Kowalski had
concerns,
Despite her
Brant remained
yelled
placed
had
at R.G. and
J.J.
in a
year.
largely silent for most
the school
There
punishment.
Rifton Chair
is no
2003,
complained
Brant
November
Streng Wagner
evidence that
took
Wagner,
Charlotte
North Point director of
complaints.
action on these
curriculum and instruction in Huron Coun-
ty,
Streng,
18,
Karen
Finally,
Kowalski’s direct
on June
2004—after
end
supervisor,
year
skipped
that Kowalski had
school
Lally
met with
—Brant
work
appointment
McCarthy,
doctor’s
without
and Daniel
North Point’s re-
director,
through
going
gional
fully express
North Point’s formal time-
to more
her
originally
plaintiff
3.
prosecute. Ap-
J.F. was
in this
failure
suit.
Ohio state court for
The district court
pellants
dismissed J.F.'s claims as
voluntarily
ap-
dismissed J.F.’s
judicata,
by
prior
barred
res
because
suit
peal.
parents
filed
J.F.’s
was
an
dismissed
time,
concerns. For the first
Brant de-
ant teacher
provided
and has not
her with
everything
scribed
she had witnessed in
2004,
her own classroom since
nor has it
her,
Kowalski’s classroom that
in-
troubled
permitted her to teach unsupervised. No
cluding
binding
gagging
of one has accused Kowalski of child abuse
R.G.;
inappropriate toilet-training
since 2004.
N.D.;
inappropriate
J.J. and
and her
at-
Appellants filed this action in the Erie
tention-focusing techniques. According to
County
Pleas,
Court Common
asserting
Brant, Lally
angry
that she had not
several state-law tort claims and a single
reported
sooner,
these concerns
and rec-
claim
Appellees’
based on
alleged liability
ommended that she file a complaint of
§
under 42
Appellees
U.S.C.
re-
child abuse with
appropriate
state au-
moved to the United States District Court
1, 2004,
July
thorities. On
Brant filed a
for the Northern District of Ohio on the
report
written
of child abuse with the Hu-
basis of
question jurisdiction
federal
on
Department
ron
Family
of Job and
Ser-
14,
January
2013. Appellees filed motions
vices.
for summary judgment
on January
Lally subsequently contacted Erie Coun-
2014, which the district court granted on
ty
Services,
Children’s
the Norwalk Law
August
Director, the
Department,
Norwalk Police
The district court found that
Education,
and the
Brant’s
Department
Ohio
all
allegations,
true,
taken as
of which
indicated that
investigated Brant’s allegations.
Kowalski
certainly
“almost
McCarthy
engaged
also initiated an
internal investi-
However,
gation.
child abuse.”
court,
North Point
suspended
district
Kowalski
year
granting
for a
with pay, pending
summary judgment,
completion of
distin
these investigations.
guished
No investigation re-
abusive behavior from unconstitu
in any
sulted
charges or sanctions.
tional
behavior. The district court found
Norwalk
Department
Police
brought
actions,
no that Kowalski’s
while inappropri
criminal charges, and the
ate,
Norwalk Law
did not rise to the level of a violation
Director concluded that he found “insuffi- of the students’ substantive
cient credible
against
evidence
Kowalski to rights. The district
granted
court also
substantiate the filing of criminal charges.”
summary judgment on Appellants’ supervi
Department
The Ohio
of Education con-
sory
against Streng, Wagner,
claims
Lally,
investigation
cluded its
with a consent
McCarthy,
Appellees’
Monell4
agreement
in which Kowalski denied any
Point,
claims
North
Appel
because
wrongdoing, but agreed
complete
twen-
lants had not established that Kowalski
*7
ty
thirty
to
“contact
college-level
hours” of
had violated her
rights,
pre
students’
a
special-education coursework.
requisite
Further,
of such claims.
the dis
that,
trict court held
even if
Kowalski fulfilled the
Kowalski had
terms of the con-
sent
violated her
agreement
July
rights,
May
As of
students’
2013,
supervisors
North Point still employed her. The
had insufficient notice of Kow
indicates, however,
record
that North
alski’s actions to be found
in
deliberately
reassigned
Point has
Kowalski as an itiner-
different. The
additionally
district court
Services,
Department
In Monell v.
ty's policy
Social
alleged inju
or custom caused the
of
Supreme
Dist.,
the
ry.”
Court held
Municipal
that 42 U.S.C.
Ellis v. Cleveland
Sch.
690,
§
provides
(6th
1983
Cir.2006)
a cause of action
(citing
a
455 F.3d
700
Mo
however,
Srvs.,
municipality;
658,
plaintiff
Dept.
"[a]
who sues
nell v.
Social
436 U.S.
of
690-91,
municipality
2018,
a
for a constitutional violation
98 S.Ct.
held that North constitutionally Cty. arbitrary not inade- in the constitutional sense.” training were 845-46, Lewis, 833, v. quate. Sacramento 523 U.S. of (1998) 1708, 140L.Ed.2d 1043 S.Ct. 118 § 1983 claims Finding Appellants’ omitted). (citation, dis quotations As law, a of the district court failed as matter below, while Kowalski’s actions cussed jurisdic- supplemental to exercise declined certainly were as matter of improper, state-law claims and Appellants’ tion over the they “egregious” law did rise to prejudice. claims without those dismissed unjustified level misbehavior that of ruling as appeal court’s This of district proscribes. Fourteenth Amendment § 1983 claims followed. We Appellants’ Therefore, properly court district § 1291. jurisdiction under 28 U.S.C. granted summary judgment Appel to all lees. II. ANALYSIS A. of review Standard Appellants’ § B. 1983 claim grant summary review We against Kowalski novo, applying the same stan
judgment de Party as the court. Green dard district Appellants’ first claim We address 533, Hargett, 767 F.3d 542 Tennessee v. her special-edu that Kowalski violated (6th Cir.2014) Priest, Huckaby v. (citing cation due rights students’ substantive (6th Cir.2011)). 211, 216 636 F.3d Sum process. Appellants argue that Kowalski’s judgment is where “the mary appropriate techniques teaching pro violated their due genuine is no movant shows there physical to be rights cess free from abuse dispute as to material fact and the actors, enjoy hands of state as a judgment is entitled matter movant personal security bodily in an integrity 56(a). law.” On review of Fed.R.Civ.P. setting. educational Webb v. McCul See order, summary judgment all evidence (6th Cir.1987) 1151, lough, F.2d 1158 828 light construed in the most favorable to public (stating that school students have non-moving party. Villegas v. Metro. “to right be free of state intrusions (6th Nashville, 563, 568 F.3d Gov’t of personal bodily into privacy realms Cir.2013). security”) v. (quoting Tawney, Hall (4th Cir.1980)). F.2d We address argue they Appellants ad such a claim under our well-established demonstrating genuine duced evidence Lillard “shocks conscience” standard. dispute of material fact on whether Kowal Educ., Cty. Shelby Bd. ski the students’ Fourteenth violated Cir.1996) (6th (stating that “we have process Amendment substantive due no doubt that the ‘shocks the conscience’ supervisors rights, whether Kowalski’s applicable” standard is to a substantive these deliberately were indifferent to con brought by claim public- violations, whether stitutional North student). is, school That a materi raise policies procedures Point’s created an *8 al fact issue of as to whether Kowalski environment in which Kowalski could rights personal security their violated in impunity, abuse students all at and freedom from abuse the hands of § 42 contravention of U.S.C. We dis officials, identify state Appellants must agree. provides Due The Process Clause brutal, demeaning, that is protection arbitrary from the conduct “so actions of government “only literally the harmful as to shock the con- employees, but most
411 ” Gottlieb, Webb, (quot- Gottlieb, F.2d at 1158 272 at 828 F.3d science.... al- 613). Hall, though case, itself ing corporal punishment 621 F.2d at a useful, provides though a necessarily addressed students’ We exhaustive, list of factors to in balance Fourteenth claims teachers’ Amend evaluating a student’s claim that a teach- the ment violations under standard first er’s disciplinary educational and tech- articulated the Fourth Circuit its niques violated the Fourteenth Amend- decision, corporal punishment seminal Further, ment. while Gottlieb sets out test, Tawney. the Hall Hall Under the perhaps a inquiry more focused on the the inquiry ap relevant is “whether force “pedagogical justification” motivating a severe, plied caused so was so dis alleged teacher’s unconstitutional conduct presented, proportionate to the need Hall, fully than it is consistent with our or inspired by was so malice sadism rather precedent the applying “shocks the con- or merely than careless unwise excess of standard, science” as demonstrated below. zeal that it amounted to brutal and inhu Therefore, we each address Gottlieb factor power mane abuse of official literally in turn. Webb, shocking the conscience.” justification 1. Pedagogical Hall, 613). 621 (quoting at 1158 F.2d at certainly relationship These are appropriate consider ac Kowalski’s case, one, tions to any including pedagogical purpose is a particu ations this larly important involving a claim a teacher factor consider in this violated a case, injure as “conduct intended to rights process. student’s substantive way some case, unjustifiable by any govern And this involves a chal which ment interest is sort of official action lenge techniques to educational rather likely most to rise to the conscience-shock corporal than it is punishment, partic also Sacramento, ing level.” Cty. 523 ularly U.S. important to consider relation (emphasis supplied). S.Ct. 1708 ship of allegedly unconstitution The district court held that Kowalski’s le al conduct to legitimate pedagogical gitimate goal toilet-training educational purpose. and legitimate disciplinary goal of main Therefore, analyze Appellants’ taining order and focus in her classroom claims under the useful framework devel provided justification pedagogical for her oped the Third Circuit Gottlieb v. Appellants actions. note that the district Dist., Highlands Laurel Sch. F.3d 168 court explicitly characterized Kowalski’s (3d Cir.2001). Gottlieb, the Third Cir abuse,” argue actions as “child analyzed cuit a student’s constitutional child abuse can be “peda never considered claim under the “shocks conscience” alone, however, gogical.” Abuse is not the by considering standard the following: Appellants’ standard at due pro issue on
a)
Rather,
pedagogical justification
Was there a
cess
claims.
issue is whether
b)
force?;
for the use of
allegedly
Was the force
teacher’s
unconstitutional
utilized
meet
legitimate
properly
excessive to
conduct is
“construed as an at
c)
situation?;
objective
objectives.”
tempt
this
Was
to serve pedagogical
good-faith
Gottlieb,
applied
(emphasis
force
in a
effort
sup
F.3d at
Webb,
discipline
plied);
maintain or
restore
mali-
see also
ishment for child”). wall, by the the student putting stated student pline the As of headlock, Circuit, insulting is not and the student. “key inquiry the in a Eleventh takes but that the coach’s use of force court in Flores found what form the The assault, to the tor- improper possibly use of force is related while and whether the the and for tious, by at school the coach’s intent student’s misconduct was motivated Bd. v. Sch. discipline.” T.W. the tardiness and purposes discipline of student for Fla., 588, 598- F.3d Cty., 610 the coach Seminole insubordination. Id. Because of Cir.2010) (internal (11th quotation discipline 99 student for the “intended to the omitted). brackets, punctuation marks, and respect,” and purpose maintaining of order the district Fifth Circuit affirmed the words, pedagogical the In other of the student’s Four- court’s dismissal test first purpose factor Gottlieb Id.; Amendment claim. see also teenth the teacher’s motivating ends looks to the Educ., 701 Cty. D.D. v. Chilton Bd. of undertaken actions and not means (M.D.Ala.2010) 1236, F.Supp.2d 1241-42 con ends. In a case with achieve those (teacher’s of a dis- temporary restraint than the conduct duct more offensive in a was a “rea- child Rifton Chair abled case, the Elev example, in this for issue “disruptive child’s response” sonable special- evaluated whether enth Circuit behavior”); Bd. Seminole G.C. Sch. patently teacher’s “abusive be education Fla., Cty., F.Supp.2d 1305 capable being construed haviors” were (M.D.Fla.2009) (special-education teacher’s disciplinary pur having or educational striking, grabbing, restraining acts of and T.W., pose. at 594-96. F.3d “shock the con- a disabled student did not frequently pro in T.W. directed teacher science,” because the teacher’s restraints T.W., insults at an autistic student fane “safety for purposes”). were done classroom, calling “lazy, him an as shole, jerk.” and a Id. at 594. pig, Taking light all facts in the most favor- agi provoked her insults into When T.W. Appellants; inappro- used able Kowalski misbehavior, the teacher —who tation meth- disciplinary instructional and priate outweighed pounds T.W. —acted' However,, as was the conduct ods. among oth inappropriately by, even more inappro- special-education teacher whose chair so things, yanking er from his T.W. techniques priate were examined desk, throwing his him legs that his struck T.W., edu- Eleventh Circuit face-down, climbing top on ground to the techniques, disciplinary cational leg pulling of him while his arms or behind certainly questionable, were uti- though back, back, twisting his arm his his behind proper purpose. for a educational lized intentionally him. Id. at 595- tripping fact, the record here establishes Kow- Despite obviously abu teacher’s was, anything, conduct if much alski’s behavior, the never sive Eleventh Circuit closely legitimate peda- related to a more ... found that her “use of force theless obviously purpose than the “abu- gogical disruptive related to T.W.’s or self- was by the behaviors” exhibited T.W. sive purpose injurious conduct was for the con- complained-of teacher. Kowalski’s Id. at discipline.” misguided attempts, duct involved albeit ones, stu-
Similarly, special-education in Flores v. DeSoto to address her Sch. Bd. of (5th Par., disciplin- Fed.Appx. undisputed Cir. dents’ educational or 510-11 J.J., 2004), not toi- ary example, Fifth Circuit that a student needs. held let-trained, balance, struggled failed to state substantive *10 stop had some to spitting, would soil herself unless she method R.G. from and to fact, disruptive his defiant using in the bathroom. address and behavior assistance Indeed, plan acknowledged education includ- class. Brant J.J.’s individualized that had as Kowalski restrained R.G. to correct toilet-training ed one of her educational behavior, his rather to harm than or humil- goals. attempted to assist J.J. Kowalski Therefore, iate him. while Kowalski’s re- safely of meeting goal properly and of straint R.G. was improp- insensitive and by securing to the using the toilet J.J. er, we nevertheless find that N.D., J.J., Kowalski had toilet with a belt. as also was a legitimate educational toilet-trained, purpose attempted and Kowalski —address- ing R.G.’s misbehavior. needs her on a placing meet N.D.’s training-toilet in the classroom. While In finding that Kowalski’s actions digni- this offensive to N.D.’s certainly clearly legitimate, served a identifiable ty, undisputed Kowalski’s motivation was pedagogical purpose, do not pass highly to assist would become N.D.—who judgment advisability on the of these in agitated slightest in rou- change at the special-education as practices. terventions toilet, properly tine —to relax and use the Indeed, based testimony Appel on the of punish and not humiliate or Simi- her. expert, Malone, lants’ Dr. Helen Kowal larly, attention-focusing tech- Kowalski’s methods were and improper ski’s counter and niques squeezing students’ faces However, productive. special-education pushing their heads down onto their folded professional standards are not the rele were, words, applied arms in Brant’s own an analysis vant consideration in only in where “the children wer- situations whether teacher’s conduct violated the en’t ... or staying focusing.” on task Fourteenth Amendment. As the Elev Finally, Kowalski’s one-time restraint T.W., enth Circuit stated “we do not properly R.G. also is construed as related express any judgment to the as desirabili objective. to a R.G. legitimate pedagogical corporal ty punishment policy as a addressing frequently required training Instead, at matter. we look the circum misbehaviors, tripping including numerous surrounding stances use of force to [the] others, spitting and at pushing teachers ‘capable whether determine the force tantrums, students,' throwing other attempt being construed as an to serve T.W., screaming. the one that objectives.’” On occasion pedagogical 610 F.3d 174). Gottlieb, Brant gagged”5 (quoting found R.G. “bound and at 272 F.3d at Here, hallway, spitting the church R.G. had surrounding been circumstances indi himself, scratching refusing disciplinary cate clear educational or allegedly re for each of stop despite multiple Kowalski’s verbal motive Kowalski’s acts, and therefore quests. that “need unconstitutional this Kowalski testified she weighs in favor. help ed this factor to be firm” to R.G. to correct Taking misbehavior. Brant’s claim 2. Excessiveness gurney Kowalski to a strapped R.G. true, as Having
bound his mouth
the record estab
established
Kowal
to pedagogical
lishes that Kowalski used this
ski’s actions were related
unorthodox
stated,
ment,
light
previously
denied
we view all
in the
most
As
Kowalski
evidence
them,
gagged”
accept
Brant's claim that she "bound and
favorable to
Brant’s version
gurney,
R.G. on a
and claimed
she had
as true. See
of events
Ruffin-Steinback
merely
long enough
covered his mouth for
dePasse,
(6th Cir.2001)
However,
stop spitting.
tell
Plain-
him to
(citation omitted).
defending summary judg-
parties
tiffs are the
spitting
to correct
and dis-
her tech
intended
R.G.’s
we next examine whether
goals,
Lillard,
respect
ruptive
76 F.3d at
were excessive with
behavior. See
niques
*11
Gottlieb,
We was mo Intent allegedly unconstitutional conduct or by legitimate a educational disci tivated in evaluating In the third factor clearly be goal, the conduct must plinary framework, we consider whether Gottlieb’s disproportionate to need extreme and to good-faith acted “in a effort Kowalski excessive in the constitu presented to be or discipline maintain or restore malicious Saylor In v. Bd. Educ. tional sense. ly sadistically very purpose and for (6th Cty., 511 Ky., Harlan Gottlieb, 272 F.3d at causing harm[.]” Cir.1997), example, paddled for a teacher on 174. This factor focuses our attention student hard that it eighth grade an so or “what animated action [Kowalski’s] student, from the and knocked the breath acting.” in Id. direct [her] intent Absent swelling on the left visible bruises intent, look evidence of a malicious courts the teacher’s Despite student. admission surrounding to the deter circumstances to -retrospect that the force in the in use of mine a whether school official’s conduct excessive,” paddling “was we nevertheless good-faith was in a effort to undertaken it “so or “dispro held that was not severe” educate, train, discipline, or or maintain need that it portionate presented” to the purpose causing for the harm. In Gott Fourteenth Amendment. Id. violated the lieb, example, physically for a teacher (quoting Ingraham Wright, 525 at 515 pushed legitimate a edu a student without (5th Cir.1976)). Indeed, F.2d 916 purpose. disciplinary cational or slapped in a a a even case where teacher Circuit, however, Third concluded pedagogical purpose student with no what itself minor that even if push “[t]he was so soever, single slap we held was occurred, injuries alleges she it cannot excessive, unconstitutionally because it be from itself inferred the act that Carbo “was neither severe force nor adminis maliciously nara intended to act and sadis Lillard, repeatedly.” F.3d tered at 726. tically so as to constitute constitutional Here, well, Appellants presented as have conduct, Thus, violation.... Carbonara’s that Kowalski’s educational no evidence tortious, although possibly give does not disciplinary were “severe in methods cause Gottlieb a constitutional of action.” force,” or constituted a “brutal otherwise Id. at 175. power. and inhumane” abuse of As to The Fourth Circuit’s decision in H.H. v. N.D., toilet-training of J.J. and (4th Cir.2009), Moffett, Fed.Appx. example, ap- the force that Kowalski for is instructive its contrast the lack of any force at plied applied she all—was —if malice presented evidence of and sadism arguably necessary keep more no than H.H., Appellants this case. safely their these students on toilets. child’s became disabled mother concerned Further, applied the force Kowalski because, after her in a new child enrolled faces, squeezing pushing her students’ class, special-education the child exhibited heads down their the students’ onto folded in- arms, minimal, growing distress and suffered from was therefore not ex- mal” creasingly regular “grand seizures. use of that Kowalski cessive. The force at restraining Id. 307-09. The child’smother attached applied R.G. also was not excessive, unconstitutionally recording it device to the child’s wheel- as occurred chair, time, insulting single only the duration which recorded teachers her, child, cursing process. Appellees’ at conspiring proposition that we necessary pose edu- absolute receiving requirement physical an prevent her from services, her re- for substantive keeping process cational claims is misplaced. at a While we never explicitly strained in wheelchair for hours addressed whether a time. The Fourth Circuit held Fourteenth Amend- Id. ment substantive due claim objective that the evidence of the teachers’ must be of a open hostility proved the child that their substantiated evidence serious physical injury, opposed had no valid in- purpose; abusive conduct serious stead, malice, psychological injury, precedent it motivated callous- our shows *12 ness, that impose bright-line to the no such and deliberate indifference re- quirement. at 313. rights. child’s Id. contrast, Here, pro- Appellants have Webb, for example, we determined evidence that
vided no direct
Kowalski’s
that a student’s claim that her principal
malice,
callous-
actions were -motivated
physically
grounds
attacked her
school
off
ness,
Appel-
or deliberate indifference.
to
was sufficient
raise a triable issue on
lants
no
that Kow-
have offered
evidence
process
the student’s
due
substantive
alski
berated or
her
regularly
insulted
claim,
any
without
of
discussion
the seri
students,
special-education
to
conspired
of
injury.
ousness
the student’s
828 F.2d
necessary ser-
keep
receiving
them from
Also,
at
Memphis City
1159.
Nolan v.
vices,
any legiti-
them
punished
or
without
Schs.,
(6th Cir.2009),
F.3d 257
589
we not
doing
may
mate
an
reason for
so. Nor
ed that the student —in addition to sustain
be
from
improper purpose
simply
inferred
injuries
dramatic
ing
physical
no
—“also
Indeed,
challenged
acts themselves.
scant
produced
significant psy
evidence of
that
purpose,
facts reveal
chological injury
from the
stemming
pad
instances,
was to
her stu-
most
assist
dling.”
supplied).
Id. at 269-70 (emphasis
meeting
goals,
dents in
their educational
explicitly
Other circuits have more
refused
others,
and in
to curb
be-
disruptive
a bright-line
requiring
to enact
rule
that a
havior. The mere fact that Kowalski did
process
bringing
student
substantive due
even
good
acceptable practices
not use
physical,
claim must demonstrate a serious
accomplish
goals
these
insuffi-
simply
injury.
opposed
psychological,
See
cient to
an inference that
under-
raise
she
T.W.,
(“[W]e
imag
Kowalski’s educational disciplinary methods, Brant, reported by may as BATCHELDER, ALICE M. Circuit insensitive, inappropriate, been and even Judge, concurring part concurring however, not, tortious. This does render judgment. in the them unconstitutional. As stated Webb, I agree Lillard “the substantive due with much of Judge Huck’s process claim quite thoughtful opinion. is different than a I separately write be- agree partial cause I with the dissent that genuine issue of material fact as to the if gagged R.G. was bound and as Brant objective reasonableness of the teacher’s claims, grossly disproportionate that was a in binding actions gagging him. response spitting, to his and because I First, I think that in application that a agree jury reasonable could infer factors, Gottlieb 272 F.3d at from that evidence that Kowalski acted emphasis court’s on actions that “capa- are with malice. being ble of construed” as serving peda- And I agree while also with the dissent gogical objective distracts from what that, assessing requirement, should be the inquiry: focus of the actions this court should consider peculiar dif that in fact objectives. do serve such ficulties faced children such as R.G. clear, Gottlieb court’s language makes disabled, who are non-verbal and severely grammar sentence, would the of the that I nevertheless concur in the judgment be being “capable being construed” as simply cause there is no evidence of any serving pedagogical objectives merely Nor, injury in this case. as the district necessary condition to create a factor noted, rightly court is there evidence of pointing against summary judgment, but anxiety might injury. distress or imply not a completely Many sufficient one. H.H. H.F. Moffett, ex rel. 335 Fed. Cf. things might capable being be con- (4th Cir.2009) (“H.F. Appx. began way strued a certain subject are also to notice that her daughter[, who had lim genuine dispute, summary judg- and on capacity,] ited verbal in becoming ment genuine dispute cannot be dis- distressed, anxious, creasingly angry counted. school].”). about her experiences [at *14 case, In this although certainly R.G. was fact, the single record does not contain a disruptive spitting and his troubling, complaint by any parent. the teacher’s action in binding him to a injury The lack of dispositive. is And I gurney gagging him with a bandana accordingly in part concur and concur in could be found jury reasonable to judgment. shock the conscience. At stage this arewe empowered not to decide either that the BOGGS, Judge, dissenting Circuit action was or shocking was not on these part. facts, merely but genu- whether there is a I majority’s concur in well-reasoned ine issue. opinion with respect to the claims of N.D. point I would to the factors that a rea- However, and J. J. I respect dissent with jury might rely sonable particular on: this dismissing R.G.’s claim on summary judg- discipline repeated, was never although ment. R.G. acted in this manner on several occa- involving Cases teacher action with re- sions; the subject actions were the of se- spect severely disabled or disturbed stu- aide; vere criticism a teacher’s if difficult, very dents can be as it is un- legitimate pedagogical there were no ne- doubtedly true that may measures need to action, cessity significant for this then the quite be taken that are different from degree employed of force could be taken those in a conventional classroom. The by a jury reasonable to be malicious majority opinion generally sets out these sadistic. applies difficulties well and them to several However, appellants. of the respect Finally, with I would note that the fourth R.G., say factor, I cannot there is no injury” Gottlieb whether a “serious 418 respectfully respect dissent
occurred, light to be assessed in may need majority portion opinion. of the problems of non-verbal particular of the fact that a severely disabled child. expressing difficulty have may
child such from treatment
emotional disturbance latitude, greater in favor of counsel
would less, of that factor. in consideration
not protec- is lessened
Otherwise result tions, protections “heightened rather than America, UNITED STATES in nu- pupils” as referenced for disabled Plaintiff-Appellee, II Preschooler v. Clark merous decisions. Trs., 1175, Bd. 1182 Cty. Sch. v. (9th Cir.2007); Sagan see also Sumner Jay ASAKEVICH, Defendant- Mario Educ., 868, F.Supp.2d 726 885 Cty. Bd. of Appellant. (M.D.Tenn.2010) (noting that an educator’s No. 15-1013. responsibility special- constitutional heightened”); “inevitably is needs students Appeals, Court United States Soltys Cty. ex rel. v. Seminole Sch. M.S. Sixth Circuit. (M.D.Fla. Bd., 1317, F.Supp.2d Jan. (“The 2009) conscience-shocking threshold in cases quickly reached where the is more vulnerable particularly to abuse
victim defenseless.”).
and is otherwise addition, rigidly treated of a as a man-
the existence serious rather as
datory requirement, but evidence See, e.g.,
that force was excessive. McDo- (6th Rogers, F.2d
well v.
Cir.1988) (denying qualified immunity even *15 not have
though “may victim suffered injury’ as a permanent result of
‘serious alleged blows ... there was [since] blows]”);
clearly no need for the[ Webb (6th
McCullough, 828 F.2d 1158-59
Cir.1987) qualified immunity (denying produced no evidence
when victim of seri- a trier fact physical
ous because alleged have found “that the
could blows and inhumane abuse ...
were brutal power”).
official difficult,
Although this case is I think preclude of factors should
the balance
granting summary judgment' claim and rather allow that
R.G.’s should go to a I
claim to factfinder. therefore