Deshawn D. Johnson v. Katelyn Cowley

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 28, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP991 Cir. Ct. No. 2021CV378

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

DESHAWN D. JOHNSON,

PLAINTIFF-APPELLANT,

V.

KATELYN COWLEY,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Fond du Lac County:
DALE L. ENGLISH, Judge. Affirmed.

Before Gundrum, P.J., Grogan and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP991

¶1 PER CURIAM. Deshawn D. Johnson, an inmate in the Wisconsin
prison system, appeals pro se from a circuit court order granting summary
judgment to Correctional Officer Katelyn Cowley—dismissing Johnson’s tort suit
against Cowley alleging that she gave him the wrong medication. We affirm.1

I. BACKGROUND

¶2 In February 2020, Cowley worked as a correctional officer at the
prison where Johnson was housed, and she distributed medication to Johnson. At
the time, the prison’s medication delivery policy, DAI No. 500.80.11, required
that, “Correctional Officers shall compare the label on the medication
container/packaging to the DOC-3026 – Medication/Treatment Record to ensure
accuracy identifying the right: a. Inmate. b. Medication. c. Dose. d. Time.
e. Route.” The policy also stated: “Correctional Officers shall show the
medication container/package and label to the inmate patient. The inmate patient
verifies the following information is correct: a. Inmate patient name.
b. Medication. c. Dose. d. Time. e. Route.”

¶3 A security-camera video from the night in question showed Cowley
stop at Johnson’s cell, look at his medication card, show him his medication card,
and then dispense the medication to him. After ingesting the medication, Johnson
alleges that he was ill for two days. He claims that he ingested the medication first
and then asked Cowley if he could see the medication card, at which time he
realized it was the wrong medication. After his administrative complaints were

1
The Honorable Rhonda L. Lanford presided over this matter until the change of venue
was ordered. The Honorable Dale L. English presided over the matter shortly thereafter and
entered the final order.

2
No. 2022AP991

rejected based on the security-camera video showing that Cowley followed the
proper medication delivery procedure, Johnson filed suit against Cowley, alleging
she was negligent. Among his various claims, Johnson contended that Cowley
was negligent because she violated the medication delivery policy. He asserted
that Cowley failed to show him his medication card before he ingested the
medication and that she failed to electronically scan the identification tag on his
door to compare it to his medication card.

¶4 Cowley denied Johnson’s contentions and moved for summary
judgment. She argued that governmental immunity barred the negligence suit
against her and that, even if immunity did not apply, Johnson was more negligent
as a matter of law for willfully ingesting an unknown pill without verifying that it
was his prescribed medication. In support of her summary judgment motion,
Cowley included the security-camera video that showed her administering the pill
to Johnson as well as her own affidavit and an affidavit of her supervisor, Captain
Robert Rymarkiewicz, attesting that he viewed the video, and it showed that
Cowley properly followed the medication delivery policy. The circuit court heard
the summary judgment motion in May 2022 and issued a written order granting
summary judgment in favor of Cowley “[f]or the reasons given on the record[.]”
Johnson appeals from this order but, in doing so, indicated that transcripts would
not be necessary to decide his appeal. Accordingly, Johnson’s appeal comes to us
without a transcript from the summary judgment hearing.

II. DISCUSSION

¶5 Johnson’s failure to provide the summary judgment hearing
transcript, particularly when the order appealed from states only that summary
judgment was granted “[f]or the reasons given on the record,” leaves us with an

3
No. 2022AP991

incomplete Record to review. “[W]hen an appellate record is incomplete in
connection with an issue raised by the appellant, we must assume that the missing
material supports the trial court’s ruling.” Fiumefreddo v. McLean, 174 Wis. 2d
10, 27, 496 N.W.2d 226 (Ct. App. 1993). We conclude that the circuit court did
not err in granting summary judgment to Cowley because governmental immunity
bars Johnson’s negligence suit.2

¶6 This appeal arises from a grant of summary judgment based on
governmental immunity. Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, 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 law.” WIS. STAT.
§ 802.08(2) (2021-22).3 “The general rule acknowledged in Wisconsin is that a
public officer or employee is immune from personal liability for injuries resulting
from acts performed within the scope of the individual’s public office.” C.L. v.
Olson, 143 Wis. 2d 701, 710, 422 N.W.2d 614 (1988). However, governmental
immunity does not protect an employee who negligently performs a “ministerial
duty[.]” Id. A duty is considered ministerial “only when it is absolute, certain and
imperative, involving merely the performance of a specific task when the law
imposes, prescribes and defines the time, mode and occasion for its performance
with such certainty that nothing remains for judgment or discretion.” Lister v.

2
Because Cowley is entitled to governmental immunity, we need not address Cowley’s
alternate claim that summary judgment was appropriate because, as a matter of law, Johnson’s
negligence was greater than Cowley’s. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559
(Ct. App. 1983) (noting that we need not address other issues when one is dispositive of the
appeal).
3
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

4
No. 2022AP991

Board of Regents of Univ. of Wis. Sys., 72 Wis. 2d 282, 301, 240 N.W.2d 610
(1976). Said differently, a ministerial duty eliminates an officer’s exercise of
discretion. See Pries v. McMillon, 2010 WI 63, ¶26, 326 Wis. 2d 37, 784 N.W.2d
648. Our supreme court has stated that “[w]here there is a written law or policy
defining a duty, we naturally look to the language of the writing to evaluate
whether the duty and its parameters are expressed so clearly and precisely, so as to
eliminate the official’s exercise of discretion.” Id.

¶7 It is undisputed that the prison had a specific policy governing the
delivery of medication to inmates and that Cowley’s distribution of medication
constituted a ministerial duty. The issue is whether Cowley complied with the
policy and is thus immune or whether she failed to follow the policy, which would
allow Johnson’s negligence suit against her. Johnson argues that Cowley is not
entitled to immunity because she did not follow the policy. He alleges that
Cowley failed to show him his medication card before he ingested the medication.
Johnson’s claim, however, is contradicted by the objective security-camera video,
which shows that Cowley complied with the medication policy. Johnson’s claim
is also contradicted by Captain Rymarkiewicz’s testimony after watching the
video. The video evidence submitted in support of summary judgment
demonstrated that Cowley complied with DAI Policy No. 500.80.11 because it
“shows Officer Cowley look at Johnson’s medication card at the 1:06 mark, lean
over to show Johnson the card at the 2:11 mark, and dispense the medication to
him at the 2:40 mark.” Captain Rymarkiewicz concluded this was “proper
procedure.” We must assume that the circuit court found the video evidence and
Captain Rymarkiewicz’s testimony credible and Johnson’s version not credible
because it granted Cowley’s summary judgment motion. Without the transcript,
“‘we must assume that the missing material supports the trial court’s ruling.’”

5
No. 2022AP991

State v. McAttee, 2001 WI App 262, ¶5 n.1, 248 Wis. 2d 865, 637 N.W.2d 774
(citation omitted).4

¶8 Although Johnson argues that Cowley was negligent in
administering his medication, he has failed to show any disputed issues of genuine
material fact as to Cowley’s failure to follow the proper medication delivery
procedure because the video and Captain Rymarkiewicz’s testimony conclusively
refute his claims. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing
parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for summary judgment.”).
Government employees are immune from personal liability for negligence claims
unless they fail to follow a well-defined ministerial duty. See Kimps v. Hill, 200
Wis. 2d 1, 10, 546 N.W.2d 151 (1996). Based upon the video evidence and sworn
affidavits, Cowley complied with the medication delivery policy that required her
to verify that the medication matched Johnson’s name on the medication card and
then required her to show it to Johnson prior to dispensing the medication to him.
Accordingly, she is entitled to immunity, and therefore, the circuit court properly
awarded summary judgment in favor of Cowley. 5

4
Johnson also claims that Cowley did not follow the medication policy because she did
not use “the ‘EMR’ scanner system” to deliver his medication. He claims that she was required
to use the EMR scanner to scan his door tag to see if there was “any discrepancy” between his
door tag and his medication. By granting summary judgment to Cowley, the circuit court flatly
rejected Johnson’s scanner assertion. We see no basis to overturn the circuit court’s summary
judgment decision on this basis. The medication policy says nothing about the use of a scanner,
and therefore Johnson’s scanner claim is meritless.
5
To the extent we have not addressed an argument purportedly raised on appeal, the
argument is deemed rejected. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261
N.W.2d 147 (1978).

6
No. 2022AP991

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

7