Tunstall v. William E. Donaldson Correctional Facility et al

Filing 14

MEMORANDUM OPINION. Signed by Judge R David Proctor on 01/08/2025. (CLD)

FILED
2025 Jan-08 AM 10:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
J. CORBIN DOUGLAS TUNSTALL,
Plaintiff,
v.
WILLIAM E. DONALDSON
CORRECTIONAL FACILITY, et al.,

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Case No.: 2:24-cv-01504-RDP

Defendants.
MEMORANDUM OPINION
This case is before the court on the Motion to Dismiss filed by Defendants Alabama
Department of Corrections, William E. Donaldson Correctional Facility, and Commissioner John
Q. Hamm (collectively, “Defendants”). (Doc. # 9). The Motion has been fully briefed.1 (Docs. #
9, 10, 13). After careful consideration, the court concludes that Defendants’ Motion (Doc. # 9) is
due to be granted in part and denied in part.
I.

Background
Plaintiff J. Corbin Tunstall (“Plaintiff”) has filed suit against Defendants, asserting claims

of race discrimination and retaliation. (Doc. # 1). Plaintiff is an African-American male who was
employed by Defendant the Alabama Department of Corrections (“ADOC”) at Defendant William
E. Donaldson Correctional Facility (“Donaldson”). (Id. ¶ 4, 13). Defendant John Q. Hamm
(“Commissioner Hamm”) is the ADOC Commissioner and held that position at all relevant times
related to Plaintiff’s allegations. (Id. ¶ 4). Beginning January 2, 2013, Plaintiff was employed at

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Movants, Defendants, have not filed a Reply. According to Exhibit B of the court’s Initial Order (Doc. #
11), the movant’s reply brief shall be filed no later than five (5) calendar days after the date on which the opponent’s
responsive brief is filed. (Id. at 24). Because the responsive brief was filed on December 14, 2024, the deadline for a
reply brief has passed. Defendants did not file a reply, therefore, the court proceeds as if the Motion (Doc. # 9) has
been fully briefed.

Donaldson as a Correctional Officer and then later served as a Sergeant from December 2, 2020
until February 9, 2022. (Id.). In his Complaint, Plaintiff alleges that on October 13, 2021, an
incident occurred with an inmate at Donaldson. (Id. ¶ 14). Plaintiff contends that that the inmate
refused to go to the medical unit for treatment and was combative in his refusal. (Id.). Plaintiff
alleges that under instructions from duty supervisors, Plaintiff had the inmate placed in an
observation room, hoping that the inmate would calm down. (Id.). According to Plaintiff, while in
the observation room, the inmate became unresponsive and later died while being treated by the
medical staff. (Id. ¶ 15). Plaintiff alleges that the medical staff discovered that the inmate had been
stabbed and died of the stab wound. (Id.).
Plaintiff alleges that following this incident on October 13, 2021, he was placed on
mandatory leave and that this leave depleted all of his annual leave, his sick leave was not honored,
and he was not paid while on mandatory leave. (Id. ¶ 16). According to Plaintiff, on February 7,
2022, he resigned from his employment with Donaldson and then on February 9, 2022, he was
terminated by Commissioner Hamm and informed that his termination was due to his not obtaining
medical treatment for the inmate who was allegedly stabbed by another inmate. (Id. ¶ 13, 17).
Plaintiff alleges that Shaun Mechalske (“Mechalske”), who is a white sergeant-duty officer,
was also involved in the incident with the inmate, and he was given the same instruction to place
the inmate in the observation room until he calmed down. (Id. ¶ 18). Plaintiff further alleges that
Mechalske was neither placed on mandatory leave nor terminated at the time Plaintiff was
terminated for the incident with the inmate. (Id.).
On February 10, 2022, one day after his termination, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Id. ¶ 8).
Plaintiff alleges that after his EEOC Charge was filed, and “[a]fter realizing that [Plaintiff] was

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not the sergeant in charge and [that] a possible mistake was made, . . . the Department of
Corrections made further investigations and took corrective measures.” (Id. ¶ 20). Plaintiff further
alleges that these later actions were only taken “[t]o remove the appearance of discrimination.”
(Id.). Based on the allegations in his Complaint, the court understands that the “subsequent actions”
Plaintiff refers to involve the firing of Mechalske. (Id.). Plaintiff contends that by the time these
actions were taken, he had already “suffered emotionally [and] economically,” that “a total
violation of his rights pursuant to Title VII of the Civil Right Act of 1964 as amended (Title VII)
42 U.S.C. sec 2000e, et seq. had already occurred,” and that the “subsequent firing of the other
person involved did not remedy or correct the discrimination and constitutional violations imposed
on [him].” (Id.).
II.

Standard of Review
The Federal Rules of Civil Procedure require that a complaint provide “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
However, the complaint must include enough facts “to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more
than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards,
nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6)
motion to dismiss, courts view the allegations in the complaint in the light most favorable to the
non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).
To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he
plausibility standard is not akin to a ‘probability requirement,’” the “complaint must demonstrate
‘more than a sheer possibility that a defendant has acted unlawfully.’” Id. A plausible claim for
relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550 U.S. at 556.
In considering a motion to dismiss, a court should “1) eliminate any allegations in the
complaint that are merely legal conclusions; and 2) where there are well-pleaded factual
allegations, ‘assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138
(11th Cir. 2011) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)).
That task is context specific and, to survive the motion, the allegations must permit the court based
on its “judicial experience and common sense . . . to infer more than the mere possibility of
misconduct.” Iqbal, 556 U.S. at 679. If the court determines that all the well-pleaded facts,
accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly,
550 U.S. at 570.
III.

Analysis
Plaintiff asserts the following claims against Defendants: Title VII and § 1981 race

discrimination claims (Count One), Title VII and § 1981 retaliation claims (Count Two), and §
1983 claims against Commissioner Hamm in his official capacity as the ADOC Commissioner
(Count Three). (Doc. # 1).
In their Motion to Dismiss, Defendants assert several grounds for why their motion is due
to be granted. (Doc. # 10). First, they assert that Plaintiff’s Complaint is a “shotgun pleading.”
(Id.). Second, they argue that Plaintiff’s Title VII claims against Donaldson and Commissioner

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Hamm are due to be dismissed. (Id.). Third, they assert Eleventh Amendment immunity bars
Plaintiff’s claims against the ADOC, Donaldson, and Commissioner Hamm. (Id.). Finally, they
assert qualified immunity bars Plaintiff’s claims against Commissioner Hamm in his individual
capacity. (Id.).
For the reasons explained below, the court finds that the Complaint is a shotgun pleading
that must be amended for Plaintiff’s claims to proceed. And, for the sake of promoting efficiency,
narrowing the issues, and avoiding duplicative motions, the court addresses Defendants’ other
arguments, as well.
A.

Shotgun Pleading

Shotgun pleadings violate Federal Rule of Civil Procedure 8, which requires “a short and
plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2),
by “failing to one degree or another . . . to give the defendants adequate notice of the claims against
them and the grounds upon which each claim rests.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291,
1294-95 (11th Cir. 2018) (quoting Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313,
1323 (11th Cir. 2015)).
There are four basic categories of shotgun pleadings: (1) those in which “each count adopts
the allegations of all preceding counts;” (2) those that do not re-allege all preceding counts but are
“replete with conclusory, vague, and immaterial facts not obviously connected to any particular
cause of action;” (3) those that do not separate each cause of action or claim for relief into a
different count; and (4) those that assert multiple claims against multiple defendants without
specifying which applies to which. Weiland, 792 F.3d at 1321-23. “The unifying characteristic of
all types of shotgun pleadings is that they fail to . . . give the defendants adequate notice of the
claims against them and the grounds upon which each claim rests.” Id. at 1323. The key question

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in determining whether a pleading is deemed “shotgun” is not whether a complaint fits into an
identified category, but rather whether it includes enough information to allow a defendant and the
court to “readily determine” if it states a plausible claim for relief. See id. at 1326.
Here, Defendants assert that Plaintiff’s Complaint qualifies as a shotgun pleading for three
reasons. First, as currently pleaded, each count of Plaintiff’s Complaint incorporates all paragraphs
preceding it. Second, Plaintiff’s Complaint contains only conclusory allegations. And third,
Plaintiff’s Complaint does not specify which Defendant is responsible for what alleged actions or
inactions.
As to the incorporation of multiple preceding paragraphs, the typical shotgun complaint
contains several counts, “each one incorporating by reference the allegations of its predecessors,
leading to a situation where most of the counts (i.e., all but the first) contain irrelevant factual
allegations and legal conclusions.” Strategic Income Funds, LLC v. Spear, Leeds, & Kellogg
Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). Here, Plaintiff’s Complaint contains three causes of
action. (Doc. # 1). In each count, Plaintiff “adopts and re-alleges” the previous paragraphs “as if
fully set forth herein.” (Id. ¶¶ 20, 28, 31). Therefore, Counts II and III incorporate not only every
previous factual allegation but also the paragraphs defining the cause of action in each count before
it.
The problem with a pleading like this is that it forces both the court and Defendants to
guess what conduct the various counts are referencing because the pleading alludes to “everything
that the plaintiff has previously mentioned anywhere in the complaint.” United States ex rel.
Wallace v. Exactech, Inc., 2020 WL 4500493, at *8 (N.D. Ala. Aug. 5, 2020) (quoting Est. of Bass
v. Regions Bank, Inc., 947 F.3d 1352, 1356 n.5 (11th Cir. 2020)). The court notes that incorporating
previous counts and large sections of a pleading into subsequent counts, by itself, does not

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necessarily render a pleading “shotgun.” Weiland, 792 F.3d at 1324. But, incorporating large
swaths of allegations and “rolling” counts into other counts “down the line” can do just that. Id.
Therefore, Plaintiff’s failure to precisely identify the facts relevant to each count and rolling those
allegations from one count to another makes his Complaint a shotgun pleading.
Similarly, Plaintiff’s Complaint is a shotgun pleading of the second type because it contains
“conclusory” and “vague” facts that continue to present a “moving target of general allegations.”
Id.; United States ex rel. Musachia v. Pernix Therapeutics, LLC, 2021 WL 2826429, at *4-5 (N.D.
Ala. July 7, 2021). For example, Count One alleges Title VII and § 1981 claims and provides,
“Plaintiff avers that Defendant has a habit and/or practice of unfairly discipling African
Americans” (Doc. # 1 ¶ 22) and “Plaintiff avers he has been subjected to other adverse actions
because of his race, African-American.” (Id. ¶ 23). But the Complaint does not specify which
Defendant Plaintiff claims does so, what any Defendant’s alleged habit is, how African Americans
have allegedly been disciplined, or what other adverse actions Plaintiff has been subjected to. The
same issue arises in Counts Two and Three. In Count Two, Plaintiff alleges that “[t]he Defendant
has a habit and/or a practice of retaliating against employees that engage in protected activity.”
(Id. ¶ 29). Again, Plaintiff has failed to specify which Defendant he is referring to, what any
Defendant’s alleged habit is, or to identify any protected conduct or instances of any Defendant
retaliating against employees who engage in protected activity. And in Count Three, Plaintiff
alleges that Commissioner Hamm “participated in constitutional violations of Plaintiff’s rights in
that he discriminated and retaliated against Plaintiff and allowed to be created a racially
discriminatory work environment for Plaintiff.” (Id. ¶ 32). Plaintiff does not allege any facts
regarding how Commissioner Hamm discriminated and retaliated against him or how
Commissioner Hamm created a racially discriminatory work environment. Therefore, all of these

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conclusory statements fail to put Defendants on notice of “the specific claims against [them] and
the factual allegations that support those claims.” Weiland, 792 F.3d at 1325.
And finally, Plaintiff’s Complaint is a shotgun pleading of the fourth type because it
“assert[s] multiple claims against multiple defendants without specifying which of the defendants
are responsible for which acts or omissions, or which of the defendants the claim is brought
against.” Id. at 1323. Plaintiff has named three defendants: Donaldson, the ADOC, and
Commissioner Hamm, but he has failed to specify in Counts One and Two which Defendant is
responsible for what alleged actions or inactions. For example, Count One asserts discrimination
claims under Title VII and § 1981 and Count Two asserts retaliation claims under Title VII and §
1981. (Doc. # 1 ¶¶ 20-29). But, neither Count One nor Count Two specifies which Defendant acted
in a particular manner. Because of this failure, Plaintiff has not put Defendants on notice of what
they allegedly did or failed to do and which claims are brought against them. This makes it
impossible for them to answer to the conduct being alleged.
The Eleventh Circuit has shown “little tolerance for shotgun pleadings.” Shabanets, 878
F.3d at 1295. “A district court has the ‘inherent authority to control its docket and ensure the
prompt resolutions of lawsuits,’ which includes the ability to dismiss a complaint on shotgun
pleading grounds.” Id.; see also Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1357 (11th Cir.
2018). But, the pleading party should have at least once chance to remedy such deficiencies before
a court dismisses with prejudice an action on shotgun pleading grounds. Shabanets, 878 F.3d at
1295; Jackson, 898 F.3d at 1358. Therefore, the court will grant Plaintiff the opportunity to file an
amended complaint against Defendants that remedies these pleading deficiencies.
B.

Defendants’ Additional Arguments

In addition to arguing that the Complaint is a shotgun pleading, Defendants contend that

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(a) Plaintiff’s Title VII claims against Donaldson and Commissioner Hamm are due to be
dismissed, (b) Eleventh Amendment immunity shields Defendants from liability, and (c) qualified
immunity shields Commissioner Hamm from liability in his individual capacity. (Doc. # 10). The
court addresses each of these arguments, in turn.
a.

Title VII Claims

Under Counts One and Two, Plaintiff asserts Title VII claims for race discrimination and
retaliation, respectively. As discussed above, Plaintiff does not specify which Defendant or
Defendants against whom he asserts these Title VII claims. Thus, Defendants construe the claims
to be brought against all three of them: the ADOC, Donaldson, and Commissioner Hamm. In their
Motion to Dismiss, Defendants assert that Donaldson and Commissioner Hamm are not proper
parties to the Title VII claims and should be dismissed. The court agrees.
“Title VII makes it unlawful for an employer to ‘fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin . . . .” Maynard v. Bd. of Regents, 342 F.3d 1281, 1288 (11th Cir. 2003)
(quoting 42 U.S.C. § 2000e-2(a)(1)). Under Title VII, an employer is defined as “a person engaged
in an industry affecting commerce who has fifteen or more employees . . . and any agent of such a
person.” 42 U.S.C. § 2000e(b). “The term ‘person’ includes one or more individuals, governments,
governmental agencies . . . .” 42 U.S.C. § 2000e(a).
A Title VII workplace discrimination claim can only be brought by an employee against
his employer. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1242 (11th Cir. 1998). To
determine who is the employer, the courts ask, “who (or which entity) is in control of the
fundamental aspects of the employment relationship that gives rise to the claim.” Peppers v. Cobb

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Cnty., Ga., 835 F.3d 1289, 1297 (11th Cir. 2016) (quoting Lyes v. City of Riviera Beach, 166 F.3d
1332, 1345 (11th Cir. 1999)). Courts will consider the totality of the employment relationship as
well as the following specific factors: “(1) how much control the alleged employer exerted on the
employee, and (2) whether the alleged employer had the power to hire, fire, or modify the terms
and conditions of the employee’s employment.” Id. (citations omitted).
Pursuant to Alabama law, the ADOC is comprised of correctional facilities or prisons (like
Donaldson), Ala. Code § 14-2-1(7)(a), and “shall have all of the duties, responsibilities, authority,
power, assets, liabilities, property, funds, appropriations, contractual rights and obligations,
property and personnel,” Ala. Code § 14-1-1.1, which includes the authority to appoint officers
and other employees. Ala. Code § 14-2-1(7)(a). The ADOC is “headed by and under the
independent direction, supervision, and control of a Commissioner of Corrections, hereinafter
referred to as ‘the commissioner,’ who shall be appointed by and serve at the pleasure of the
Governor.” Ala. Code § 14-1-1.3.
The court finds that for purposes of any Title VII claim here, Plaintiff’s employer is either
the ADOC or Commissioner Hamm. Donaldson cannot be Plaintiff’s employer because it has no
authority over him as it is merely his workplace. It is Commissioner Hamm who heads the ADOC
and who has the authority to appoint and dismiss ADOC employees; Donaldson has no such
power.
Although either the ADOC or Commissioner Hamm may be considered Plaintiff’s
employer, the court finds that Commissioner Hamm should also be dismissed from Plaintiff’s Title
VII claims because the claims against him are redundant. As the Eleventh Circuit has held, “official
capacity suits are the ‘functional equivalent’ of claims against the entity that employes the official
and, therefore, no longer necessary because the entity can be sued directly.” Jones v. Bessemer Bd.

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of Educ., 2020 WL 3440482 (N.D. Ala. June 23, 2020) (citing Busby v. City of Orlando, 931 F.2d
764, 772 (11th Cir. 1991)). Moreover, “[t]he relief granted under Title VII is against the employer,
not individual employees whose actions would constitute a violation of the Act.” Id. at 772.
Therefore, to the extent that Plaintiff asserts claims against both the ADOC and Commissioner
Hamm, the claims brought against Commissioner Hamm are due to be dismissed for at least two
possible reasons. First, if the claims against Commissioner Hamm are asserted against him in his
official capacity, the court finds that such claims are duplicative of Plaintiff’s claims against the
ADOC. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the government entity
receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than
name, to be treated as against the entity.”). And second, if the claims against Commissioner Hamm
are asserted against him in his individual capacity, they are also due to be dismissed as
“[i]individual capacity suits under Title VII are [] inappropriate” because there is no individual
liability under Title VII. Busby, 931 F.2d at 772.
For all of these reasons, Plaintiff cannot pursue his Title VII claims against Donaldson and
Commissioner Hamm.
b.

Eleventh Amendment Immunity

As to Plaintiff’s § 1981 and § 1983 claims, the ADOC, Donaldson, and Commissioner
Hamm (sued in his official capacity) are entitled to Eleventh Amendment immunity because the
State of Alabama has not waived its Eleventh Amendment immunity for § 1981 and § 1983 claims,
and Congress has not abrogated this immunity with regard to suits for monetary damages by
private individuals pursuant to § 1981 and § 1983.
The Eleventh Amendment insulates a state from suit in federal court unless the state either
consents to suit or waives its Eleventh Amendment immunity. See Pennhurst State Sch. & Hosp.

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v. Holderman, 465 U.S. 89, 98-100 (1984). In addition to protecting states from suit by private
individuals in federal court, Eleventh Amendment immunity has been extended to state agencies
and instrumentalities, and state officials. Harden v. Adams, 760 F.2d 1158, 1163 (11th Cir. 1985).
Because the ADOC is a state agency and Donaldson is a correctional facility under the ADOC,
they are considered arms of the state. Additionally, “a suit against a state official in his or her
official capacity is not a suit against the official but rather is a suit against the official’s office . . .
. As such, it is no different from a suit against the State itself.” Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989) (citations omitted).
Moreover, the Supreme Court has held that neither § 1981 nor § 1983 abrogate Eleventh
Amendment immunity. Id. at 64. Therefore, Plaintiff’s § 1981 and § 1983 claims against the
ADOC and Donaldson are due to be dismissed because they are state agencies that are entitled to
Eleventh Amendment immunity. And, “because a suit for damages against a state official in his
official capacity is, in substance, a suit against the state treasury,” state officials like Commissioner
Hamm, “are also entitled to Eleventh Amendment immunity from such liability in their official
capacities.” Toney v. State of Ala., 784 F. Supp. 1542, 1545 (M.D. Ala. 1992). Thus, any § 1981
and § 1983 claims for money damages against Commissioner Hamm in his official capacity are
also due to be dismissed.
c.

Qualified Immunity

Although state officials acting in their official capacities are entitled to Eleventh
Amendment immunity, “[s]tate officials acting in their individual capacities are not protected by
the sovereign immunity conferred by the Eleventh Amendment.” Harden, 760 F.2d at 1164.
Plaintiff’s Complaint clarifies that “Hamm as Commissioner of Alabama Department of
Corrections is sued in his individual, as well as official capacity as representative of William E.

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Donaldson Facility.” (Doc. # 1 ¶ 4) (emphasis added). However, in Count Three, which asserts §
1983 claims against Commissioner Hamm, Plaintiff alleges, “[a]t all times material to the
complaint, Defendant Hamm was acting in his official capacity as an official of the State of
Alabama Commissioner of the Department of Corrections.” (Id. ¶ 33) (emphasis added). Plaintiff’s
Complaint does not allege that Commissioner Hamm was acting in his individual capacity. Of
course, to the extent that Plaintiff may have intended to assert his claims against Commissioner
Hamm in his individual capacity, such a claim implicates the doctrine of qualified immunity.
“The doctrine of qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “In order to receive qualified
immunity, the public official must first prove that he was acting within the scope of his
discretionary authority when the allegedly wrongful acts occurred.” Crenshaw v. Lister, 556 F.3d
1283, 1289 (11th Cir. 2009) (internal quotations omitted). An official who was acting in the scope
of his discretionary authority is entitled to qualified immunity unless the plaintiff can show that
the official (1) violated a constitutional or statutory right; and (2) that the constitutional or statutory
right was “clearly established” at the time of the official’s alleged misconduct. Pearson, 555 U.S.
at 232.
Although Defendants assert that Commissioner Hamm is entitled to qualified immunity for
the claims asserted against him in his individual capacity, because of Plaintiff’s pleading
deficiencies, the court cannot make that determination at this time.

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IV.

Conclusion
For the reasons explained above, Defendants’2 Motion to Dismiss (Doc. # 9) is due to be

granted in part and denied in part. A separate order in accordance with this memorandum opinion
will be entered contemporaneously.
DONE and ORDERED this January 8, 2025.

_________________________________
R. DAVID PROCTOR
CHIEF U.S. DISTRICT JUDGE

In his response to Defendants’ Motion to Dismiss, Plaintiff contends “[t]he intent of the original complaint
was to contain (1) defendant” but that “upon the plaintiff’s interaction with the clerk of the court . . . was told that the
clerk thought there were two defendants and had set the complaint up as such.” (Doc. # 13 at 4). Plaintiff also contends
that he was “further told that Plaintiff should serve it as if there are two defendants, serving Commissioner Hamm as
a defendant separately, since his name did appear in the style of the document.” (Id.). Despite these contentions, the
court cannot decipher which of the three named Defendants Plaintiff meant to name as the sole defendant, although it
appears the proper defendant would be his employer, the ADOC. As currently pleaded, however, the court construes
the instant action to be brought against the three named Defendants and directs Plaintiff to include only one defendant
in his amended complaint if that is in fact his intention.
2

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