RENDERED: SEPTEMBER 29, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0058-MR

MICHAEL D. JOHNSON APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANN BAILEY SMITH, JUDGE

ACTION NO. 19-CI-001116

ULYSSES GOBER AND VERNON 

WILLIAMS1 APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND COMBS, JUDGES.

COMBS, JUDGE: In this appeal, Michael D. Johnson, Jr., challenges the 

summary judgment of the Jefferson Circuit Court entered in favor of Ulysses 

Gober and Vernon Williams, who were employed by the Jefferson County Public 

Schools as security monitors. After our review, we affirm. 

1 The court documents attached to the record indicate “Ullysses” and “Ulyseses.” However, the 

Notice of Appeal indicates “Ulysses,” the spelling that we have adopted in this Opinion.
-2-

In March 2018, while he was a student at Atherton High School in 

Louisville, Johnson suffered injuries when K.V., a fellow student, threw a stick at 

him. The stick lodged in Johnson’s face near his eye. 

In February 2019, Johnson’s mother filed this personal injury action 

on his behalf. Named as defendants were: the Jefferson County Board of 

Education; Jefferson County Public Schools; Dr. Thomas Aberli, the former 

principal at Atherton; Dr. Martin Pollio, the superintendent of the Jefferson County 

Board of Education; and “Unknown Defendants.” 

 She amended the complaint to include Louisville Metro Police 

Department and Louisville-Jefferson County Metro Government as additional 

defendants. The amended complaint included more factual allegations and stated 

new claims for alleged negligent hiring, retention, training, and supervision. 

Louisville Metro Police Department and Louisville-Jefferson County Metro 

Government were dismissed by the trial court on immunity grounds. 

 Johnson’s mother filed for leave to file a second amended complaint, 

which was granted. The parties proceeded with discovery. 

In June 2020, the Jefferson County Board of Education, Jefferson 

County Public Schools, Dr. Aberli, and Dr. Pollio filed a joint motion for summary 

judgment. They argued that they were shielded from liability by absolute 

immunity and/or qualified official immunity. Ms. Johnson responded with a 
-3-

motion for leave to file a third amended complaint in which she named Gober and 

Williams as additional defendants. The trial court granted the motion for summary 

judgment, and it also granted Johnson’s motion for leave to file the third amended 

complaint. 

In December 2021, Ms. Johnson filed a motion for leave to file a 

fourth amended complaint in which Michael Johnson was substituted as plaintiff. 

The complaint largely restated the earlier factual allegations and re-asserted 

negligence claims against both Gober and Williams in their capacity as “teacher[s] 

and or School Resource Officer[s].” Johnson alleged that Gober and Williams 

were negligent by failing to prevent him from suffering foreseeable harm. 

In May 2022, Gober and Williams filed a motion for summary 

judgment in which they contended that summary judgment should be entered on 

multiple grounds. They noted that Johnson had sued them in their representative 

capacity and had not asserted claims against either of them in an individual 

capacity. They argued that as employees of the public school system, they were 

entitled to assert the absolute immunity afforded the state. In the alternative, they 

argued that they were entitled to qualified official immunity or that Johnson could 

not make out a prima facie case of negligence. After a period of additional 

discovery, the trial court granted the motion for summary judgment. The court 

concluded that Johnson had sued Gober and Williams only in their official 
-4-

capacities and that Gober and Williams were entitled to absolute immunity. This 

appeal followed. 

On appeal, Johnson does not challenge the court’s conclusion that 

Gober and Williams are immune from liability for the allegedly negligent actions 

taken in their representative (official) capacities. Instead, he argues that “the only 

issue this Court needs to decide” is whether Johnson’s complaint “state[s] a claim 

against [Gober and Williams] individually.” Johnson explains that the issue 

involves “pleading standards” and contends that the court misconstrued the 

allegations contained in his complaint. Johnson asks: “what does a plaintiff have 

to do to plead a case against a government employee in their individual 

capacity[?]” 

In his fourth amended complaint, Johnson sued both Gober and 

Williams “in his official capacity as teacher and/or School Resource Officer at 

Atherton High School and in his individual capacity at Atherton High School to 

the extent this Defendant is not entitled to sovereign immunity as determined by the 

facts and circumstances of this case.” (Emphasis added.) The trial court 

concluded that Johnson had not pled claims against the defendants in their 

individual capacity through this language but had, instead, specifically excluded

any claims of personal liability against them. The court rejected Johnson’s 
-5-

contention that a liberal construction of the language used in the complaint could 

alter the plain substance of it.

[Johnson] offers no explanation of his wording of [the 

disputed provision], and the Court knows of no authority 

that allows the Court to assume it was a mistake, even 

when construing the pleading liberally; after all, the same 

allegations are repeated in the amended complaint that 

added [Gober and Williams] as defendants. . . .

Citing the analysis undertaken by the Supreme Court of Kentucky in Calvert 

Investments Inc., v. Louisville & Jefferson Co. Metropolitan Sewer District, 805 

S.W.2d 133, 139 (Ky. 1991), the trial court determined that:

“the failure to specify individual capacity in the heading, 

the lack of specificity in the body, and the failure to seek 

judgment against such individuals [in their individual 

capacity] in the concluding demand,” forces the 

conclusion “that the Complaint fails to state a separate 

cause of action for personal liability against any 

particular individual.”

Johnson argues that the disputed language gave the defendants fair 

notice of the claims against them and that the trial court erred by concluding that 

Gober and Williams were entitled to judgment as a matter of law. We disagree.

Summary judgment is properly granted where “the pleadings, 

depositions, answers to interrogatories, stipulations, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to a judgment as a matter of 
-6-

law.” CR2 56.03. Because summary judgment involves only questions of law and 

not the resolution of disputed material facts, we do not defer to the trial court’s 

decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378 (Ky. 

1992). Instead, we review the decision de novo. Cumberland Valley Contrs., Inc.

v. Bell County Coal Corp., 238 S.W.3d 644 (Ky. 2007).

A plaintiff is the master of his complaint and is solely responsible for 

its content. Bradley v. Commonwealth ex. Rel Cameron, 653 S.W.3d 870 (Ky. 

2022). The complaint must sufficiently allege a discernable cause of action. 

Security Trust Co. v. Dabney, 372 S.W.2d 401 (Ky. 1963). Kentucky law requires 

that allegations against a state actor in his individual capacity be made with 

specificity. Calvert Investments, Inc., supra. 

The trial court concluded that the complaint did not state a separate 

cause of action for personal liability against Gober and Williams, in part, because 

by its language, it specifically excluded claims against them in their individual 

capacities. From the beginning of this litigation, Johnson recited in his various 

complaints that Gober and Williams were being sued in their representative 

capacity and “in their individual capacity to the extent that they are not entitled to 

sovereign immunity.” There is no dispute that Gober and Williams are, in fact, 

entitled to absolute immunity from suit. Consequently, the internally contradictory

2 Kentucky Rules of Civil Procedure.
-7-

and confusing language that Johnson crafted compels the conclusion that Gober 

and Williams are being sued only in their official capacities and not in their 

individual capacities. 

If we were to accept Johnson’s assertion that the limiting language 

merely created an ambiguity with regard to the capacity in which Gober and 

Williams were being sued, we would, nevertheless, be persuaded that the claims 

were asserted against them only in their official capacity. Johnson’s complaint 

specifically refers to Gober and Williams in their official capacities. The 

complaint also refers to the obligation of state actors to maintain the school’s 

premises in a safe condition; to the duty of state actors properly to train school 

personnel; and to the alleged liability of state actors for the torts of their 

employees. 

 Accordingly, we conclude that Johnson’s complaint consistently 

alleged claims against Gober and Williams in their official capacities only. 

Because there is no dispute that they are cloaked with governmental immunity, we 

conclude that the trial court did not err by granting the motion for summary 

judgment. 

The judgment of the Jefferson Circuit Court is affirmed.

ALL CONCUR.
-8-

BRIEFS FOR APPELLANT:

John S. Friend

Louisville, Kentucky

BRIEF FOR APPELLEES:

C. Tyson Gorman

Jordan M. White

Matthew L. Bunnell

Louisville, Kentucky