Porter et al v. The City of Enterprise et al

Filing 46

OPINION AND ORDER that: (1) Dfts City of Enterprise, Javier Ruiz, Jason Anderson, Gerard Dube, Eric Stinson, and James Sanders's 30 Motion to Dismiss is granted as to counts four and seven of the 27 Amended Complaint and said counts are dism issed; (2) Said motion is granted as to counts five and six to extent they are against dft City of Enterprise and said dft is dismissed as to said counts; (3) Said motion is denied in all other respects. Signed by Honorable Judge Myron H. Thompson on 3/28/2013. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

ROBERT T. PORTER and
DANIEL J. PORTER,

)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
THE CITY OF ENTERPRISE,
et al.,
Defendants.

CIVIL ACTION NO.
1:10cv1107-MHT
(WO)

OPINION AND ORDER
Plaintiffs Robert T. Porter and Daniel J. Porter
assert

seizure

and

assault

claims

under

the

Fourth

Amendment (based on the Fourteenth Amendment and enforced
through 42 U.S.C. § 1983) as well as state-law tort
claims against the following defendants: the City of
Enterprise, Alabama and police officers Javier Ruiz,
Jason Anderson, Gerard Dube, Eric Stinson, and James
Sanders.
pursuant
currently

The
to

jurisdiction

28

before

of

U.S.C.

§§

1331,

the

court

on

the

court

1367.
the

is
The

invoked
case

defendants’

is

joint

motion to dismiss.

For the reasons that follow, that

motion will be granted in part and denied in part.

I.

MOTION-TO-DISMISS STANDARD

In considering a motion to dismiss a complaint,

the

court accepts the plaintiff’s factual allegations as
true, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984),
and

construes

the

complaint

in

his

favor,

Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993).

Duke

v.

To survive,

the complaint need contain only “enough facts to state a
claim to relief that is plausible on its face”; it need
not make “detailed factual allegations.”

Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555, 570 (2007).

II.

BACKGROUND

According to the complaint, the Porters rented a
motel room in Enterprise, Alabama, on December 31, 2008.
That evening, New Year’s Eve revelers attempted to enter
the Porters’ room.

Efforts to rebuff the uninvited

2

guests led to a confrontation between the Porters and
“approximately

twenty

belligerent

persons”

who

behaving “in a hostile and intimidating manner.”
Compl. (Doc. No. 27) ¶ 9.

were

Amended

Daniel Porter dispersed the

crowd with several shots from his handgun.
The

police

were

called

to

the

scene.

As

they

approached, Daniel Porter raised his hands over his head
and then slowly went onto his knees, before finally
lying down on the ground in a prone position.

The

handgun was on the ground next to him and an officer
kicked it away.

Although Porter remained compliant and

surrendered himself completely, he was grabbed and his
head was slammed into the concrete ground, leaving him
bleeding and in pain.
Meanwhile,
Porter.
and

the

police

officers

approached

Robert

He, too, fully complied with their directives

followed

their

commands

to

lie

on

the

ground.

However, an instant after one of the officers instructed
him to put his hands behind his back, and, before he had

3

a chance to react, the officer repeatedly discharged his
taser into Porter’s shoulder.

As a result of the tasing,

Porter suffered at least 16 taser marks, abrasions, loss
of muscle control, and agonizing pain.

Both Daniel and

Robert Porter were subsequently arrested.1

1. The complaint states that Daniel Porter’s “head
was slammed into the parking lot.” Amended Compl. (Doc.
No. 27) ¶ 15.
The defendants make much of the
complaint’s use of the passive voice and insist that,
since the complaint fails to identify who actually
slammed Daniel Porter’s head into the ground, it is
somehow defective. However, it can be inferred from the
the complaint, as read in favor of the Porters, that the
police officers were acting together. For example, at
one point in the amended complaint, the Porters allege
that, "After Daniel J. Porter had surrendered himself and
was compliant with the instructions of the police
officers they committed acts of physical violence upon
him causing him injuries as a result of their use of
excessive and unreasonable force", id. at ¶ 18, and at
another point they allege that "None of the police
officers intervened all acquiescing in the tasing of an
arrestee who was lying down and had not been combative
with the police officers." Id. at ¶ 25.
But most
importantly, the overall thrust of the complaint is that
the officers were acting together.
To be sure, after
discovery and on summary judgment, it may appear that
all the officers were not acting together and that some
are not arguably liable and should be dismissed; however,
the issue for the court at this time is the complaint.
4

Following that incident, the Porters brought suit
against the police officers who responded to the scene
and their employer, the City of Enterprise.
seven separate claims for relief.2

They allege

Claim one is that the

police officers used excessive force in violation of the
Fourth Amendment during their arrest of Daniel Porter.
Claim two is that the police officers used excessive
force in violation of the Fourth Amendment during their
arrest of Robert Porter.

Claim three is that the City of

Enterprise had a policy or practice of permitting its
officers to use excessive force and is therefore liable
for the excessive forced used against the Porters.

Claim

2. The Porters, in their reply to the defendants’
motion to dismiss, argue that they asserted eight claims,
rather than seven. It appears that they have relied on
their initial complaint, rather than on their amended
complaint, in reaching that conclusion.
Since, “‘an
amended complaint supersedes the initial complaint and
becomes the operative pleading in the case,’” Krinsk v.
SunTrust Banks, Inc., 654 F.3d 1194, 1202 (11th Cir.
2011) (quoting Lowery v. Ala. Power Co., 483 F.3d 1184,
1219 (11th Cir. 2007)), the court has addressed
plaintiffs’ claims as they appear in the amended
complaint.
5

four is that Daniel Porter was arrested without probable
cause in violation of the Fourth Amendment.

Claim five

is that the police officers committed the state-law tort
of assault and battery when arresting Daniel Porter.
Claim six is that the police officers committed the
state-law tort of assault and battery when arresting
Robert

Porter.

Claim

seven

is

that

the

City

of

Enterprise pursued a malicious prosecution against Daniel
Porter.3

III.
A.
1.

DISCUSSION

Alleged Constitutional Violations

Excessive Force (Claims One, Two, and Three)
a.

Claims One and Two

The Porters argue that the police officers violated
their Fourth Amendment rights by using excessive force
during their arrest.

Specifically, in claim one, Daniel

3. It is unclear whether this claim seeks relief
under federal or state tort law. Both possibilities are
addressed below.
6

Porter

alleges

that

he

was

injured

when

the

police

officers slammed his head into the ground; and, in claim
two,

Robert

unnecessarily

Porter
and

alleges

repeatedly

that
tased

the
him.

officers
The

Fourth

Amendment’s prohibition on unreasonable seizures protects
individuals

from

being

during police encounters.

subjected

to

excessive

force

Fils v. City of Aventura, 647

F.3d 1272, 1287 (11th Cir. 2011).

An officer’s use of

force violates that constitutional protection if it is
“objectively [un]reasonable in light of the facts and
circumstances.”

Graham v. Connor, 490 U.S. 386, 397

(1989) (internal quotation marks omitted).
The Eleventh Circuit Court of Appeals has explained
“that

unprovoked

force

against

a

non-hostile

and

non-violent suspect who has not disobeyed instructions”
is unreasonable and, when accompanied by injury to the
suspect, may “violate[] that suspect’s rights under the
Fourth Amendment.”

Fils, 647 F.3d at 1289.

Based on

that premise, it has found constitutional violations

7

when, for example, a police officer punched a handcuffed
and compliant suspect, Hadley v. Gutierrez, 526 F.3d
1324, 1330 (11th Cir. 2008), when an officer used a taser
against a non-violent individual, Fils, 647 F.3d at 1290,
and when an officer struck a passive suspect with a gun,
Walker v. City of Riviera Beach, 212 F. App’x 835, 838
(11th Cir. 2006).
Daniel Porter claims that unconstitutional force was
used during his arrest.

According to the complaint,

Porter was motionless in the prone position and fully
compliant

with

the

officers’

instructions

when

they

approached and slammed his head into the parking lot
floor.

Put

another

way,

the

alleged

constitutional

violation is that the police officers struck a passive
and compliant suspect, causing injuries to his head.
That alleged violation is materially similar to the
violations identified in both Hadley and Walker.

For

example, the defendant officer in Hadley “punched [the
plaintiff] in the stomach while he was handcuffed and not

8

struggling or resisting.”

526 F.3d at 1330. The court

held that the “gratuitous use of force when a criminal
suspect is not resisting arrest constitutes excessive
force.”
that

While Hadley was handcuffed at the time,

Id.

fact

is

not

essential.

In

Walker,

while

the

plaintiff was unrestrained, 212 F. App’x at 838, the
court still found the officer’s conduct--striking the
suspect

in

the

head

with

a

pistol--“obviously

unconstitutional” and “at the core of what the Fourth
Amendment prohibits.”

Id. at 839.

That the officer in

Walker hit the suspect’s head with something hard (a gun)
and the officers in this case allegedly hit something
hard (the pavement) with the suspect’s head makes no
difference.

Like the plaintiffs in Hadley and Walker,

Daniel Porter alleges that he was subjected to gratuitous
force while he was neither resisting nor struggling with
the officers.
Because Porter, like Hadley and Walker, was not
resisting arrest and because he, like Hadley and Walker,

9

posed no danger to the arresting officers, they were “not
entitled to use any force at that time.”
F.3d at 1330.

Hadley, 526

Therefore, like the punch in Hadley and

the single strike with a gun in Walker, smashing Daniel
Porter’s head into the pavement--despite his compliance
with the officer’s instructions--constitutes excessive
force

in

violation

of

the

Fourth

Amendment.

The

defendants’ motion, in so far as it seeks dismissal of
claim one, must therefore be denied.
The

Eleventh

Circuit’s

opinion

in

Fils

all

but

requires the same result for claim two, in which Robert
Porter alleges that the police officers’ repeated use of
the taser constitutes excessive force.

In Fils, the

defendant officer confronted a partygoer whom he had
overheard using vulgar language.

The officer “pulled out

his taser” and, when the plaintiff “put up his hands and
took

one

step

backward,”

the

officer

responded

shooting his taser into the plaintiff’s chest.
at 1288.

by

647 F.3d

Even though the plaintiff did not resist, the

10

officer

continued

to

discharge

plaintiff’s chest and neck.

Id.

his

taser

into

the

The court found the use

of force excessive, given that (1) the plaintiff had not
committed a “serious offense,” (2) the plaintiff was not
a threat to the officer’s safety, and (3) the plaintiff
“was not resisting arrest or attempting to escape.”4

Id.

at 1288-89.
Those three factors are also present in this case.
First, Robert Porter never possessed a weapon and nothing
in the complaint indicates that he was arrested for a
serious offense.

Second, like the plaintiff in Fils, the

complaint depicts Porter as little more than a bystander
who had done nothing that would appear threatening to the
police.

Third, Porter had not attempted to escape.

Instead, he laid down on the ground and complied with the
arresting

officers’

various

requests.

Under

those

4. Even though the plaintiff was charged with
resisting arrest, the court accepted as true, for summary
judgment purposes, the plaintiff’s version of the events.
11

circumstances, the constitution protected him from being
repeatedly tased.5

b.

Claim Three

Section 1983 provides a remedy against “any person”
who, under color of state law, deprives another of his
constitutionally protected rights.

42 U.S.C. § 1983.

In

Monell v. Department of Social Services, 436 U.S. 658,
690 (1978), the Supreme Court held that municipalities
and other local government entities are included among
those persons to whom § 1983 applies.

Nevertheless, for

a municipality to be liable for the actions of one of its
officers,

that

officer

must

have

acted

“pursuant

to

official municipal policy of some nature” and that policy

5. For the above reasons, the police officers are
not entitled to qualified immunity on the claims one and
two.
“[T]the state of the law ... gave [them] fair
warning that their alleged treatment of [the Porters] was
unconstitutional.”
Hope v. Pelzer, 536 U.S. 730, 740
(2002).
12

must have “caused [the] constitutional tort.”

Id. at

691.
The Eleventh Circuit has distilled Monell’s holding
into three parts: “to impose § 1983 liability on a
municipality,
constitutional

a

plaintiff
rights

must

(1)

that

his

violated;

were

show:

(2)

that

the

municipality had a custom or policy that constituted
deliberate indifference to that constitutional right; and
(3) that the policy or custom caused the violation.”
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
Since this court has already concluded that the complaint
sufficiently alleges that the Porters’ Fourth Amendment
rights were violated, only the second and third elements
are at issue here.
The complaint alleges that the city had a policy of
ignoring and otherwise condoning the excessive use of
force by its officers.

The primary point of contention

between

is

the

identifying

parties
that

policy,

whether,
the

13

in

complaint

addition

to

sufficiently

alleges that it constituted deliberate indifference to
the constitutional violations.

Specifically, the city

argues that the complaint fails to allege facts that
would indicate that it was on notice of the need to
intervene--either through better training, more thorough
supervision, or effective punishment of wrongdoers--in
order to eliminate the use of excessive force.

See Gold

v. City of Miami, 151 F.3d 1346, 1350 (11th cir. 1998)
(“To establish ... ‘deliberate indifference,’ a plaintiff
must present some evidence that the municipality knew of
a need to train and/or supervise in a particular area and
the municipality made a deliberate choice not to take any
action.”).

The court disagrees.

In

the

explaining

city’s

alleged

policy,

the

complaint uses the word “consistently,” which the Oxford
English Dictionary defines as “uniformly, with persistent
uniformity,” to explain the frequency with which the city
“ignored the use of excessive force during the course of
arrest.”

Amended Compl. (Doc. No. 27) ¶ 20.

14

The clear

implication from that language is that the city was made
aware, on multiple occasions, that its officers had used
excessive force and that its response on each of those
occasions was to do nothing but permit that behavior to
continue.
A municipality’s “continued adherence to an approach
that [it] knew or should [have known] failed to prevent
tortious conduct by employees may establish the conscious
disregard

for

the

consequence

of

their

action--the

‘deliberate indifference’--necessary to trigger municipal
liability.”

Bd. of County Comm’rs v. Brown, 520 U.S.

397, 407 (1997).

That is precisely what is alleged here:

the city knew that violations were occurring and it
consistently ignored them, even though doing so let the
violations

continue.

The

alleged

policy

therefore

constitutes deliberate indifference to the constitutional
violations.
The complaint also satisfies the causation element
required for municipal liability.

15

The Porters allege

that one of the arresting officers, Jason Anderson, held
the position of watch commander and was therefore in a
supervisory role over the other officers.

But for the

city’s policy of ignoring police abuses, the Porters
submit,

the

other

arresting

officers

would

not

have

committed the constitutional violations in Anderson’s
presence (as they would have feared reprisal).

That is

certainly a plausible theory of causation and therefore
the

complaint

sufficiently

alleges

that

element

of

municipal liability.
Whether or not such a policy actually existed and
whether or not it caused the specific constitutional
violations in this case remains to be seen, but the
Porters have, at least, sufficiently alleged a claim
against the City of Enterprise for violation of their
Fourth Amendment right to be free from unreasonable and
excessive

force

during

an

arrest.

The

defendants’

motion, insofar as it seeks dismissal of claim three,
must therefore be denied.

16

2.
Claim
violated

four
the

False Arrest (Claim Four)
asserts

Fourth

that

Daniel

Amendment.

Porter’s

That

claim

arrest
will

be

dismissed on the qualified-immunity ground.
An arrest does not violate the Fourth Amendment if it
is supported by probable cause.

See Skop v. City of

Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir. 2007).
“Probable cause to arrest exists when law enforcement
officials

have

facts

and

circumstances

within

their

knowledge sufficient to warrant a reasonable belief that
the suspect had committed or was committing a crime.”
Id. (internal quotation marks omitted).

But courts “do

not automatically hold an officer liable for making an
arrest that, when seen with the benefit of hindsight,
turns out not to have been supported by probable cause.”
Id. at 1137.
protects

the

reasonable
“reasonable

Instead, the doctrine of qualified immunity
arresting

probable
officers

officers

cause:
in

there

the

17

unless
is

same

no

they

lacked

liability

circumstances

if
and

possessing the same knowledge as the Defendant[] could
have believed that probable cause existed to arrest.”
Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002)
(alteration

in

original)

(internal

quotation

marks

omitted).
“Whether a particular set of facts gives rise to
probable cause or arguable probable cause to justify an
arrest for a particular crime depends, of course, on the
elements of the crime.”

Crosby v. Monroe County, 394

F.3d 1328, 1333 (11th Cir. 2004).

While the complaint

fails to identify the offense for which Daniel Porter was
arrested,6 the Eleventh Circuit has held that, “[i]f the
arresting officer had arguable probable cause to arrest
for any offense, qualified immunity will apply.”

Brown

6. That alone might justify dismissal of this claim,
since the arresting officers’ actions were within their
discretionary functions and Porter therefore bears the
burden of showing that qualified immunity does not apply.
See Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557
(11th Cir. 1993). It is difficult to see how that burden
could be carried without first identifying the crime for
which the plaintiff was arrested.
18

v. City of Huntsville, 608 F.3d 724, 735 (11th Cir. 2010)
(citing Skop, 485 F.3d at 1138).

Therefore, rather than

dismissing the claim out of hand, the court will consider
whether (based solely on the allegations contained in the
complaint) the arresting officers had arguable probable
cause to arrest Porter for disorderly conduct.
Disorderly conduct under Alabama law includes the
reckless creation of a risk of public alarm through
“threatening behavior.”

1975 Ala. Code § 13A-11-7.

The

complaint details precisely that type of conduct.

In

order to scare off a crowd of New Year’s Eve revelers,
Daniel Porter fired multiple shots from his handgun into
the

air.

The

threat

apparently

worked

(the

crowd

dispersed), but Porter’s behavior led someone (presumably
one of the frightened partygoers) to call the police.
When the police arrived, they found Porter at the hotel
in question with a handgun either in his possession or
immediately adjacent to him, such that the officer had to

19

“kick[] the firearm away” before safely approaching and
arresting him.

Amended Compl. (Doc. No. 27) ¶ 14.

Firing a weapon into the air obviously creates a risk
of alarm.
so.

Indeed, that was Porter’s intent when he did

The police were made aware of his behavior and

responded to the scene to find Porter armed.

Under these

circumstances they certainly had arguable probable cause
to believe that he had fired the gun, thereby creating
public

alarm

through

threatening

behavior,

and

were

therefore well within their rights to make the arrest.
Given the existence of arguable probable cause, qualified
immunity protects the police officers from any lawsuit
predicated on false arrest. Claim four must therefore be
dismissed.

B.

Alleged State-Law Violations
(Claims Five and Six)

In claims five and six, Daniel and Robert Porter
assert that the arresting officers committed the statelaw tort of assault and battery during the arrest.
20

The

police officers do not quibble with whether the complaint
sufficiently alleges the elements of assault and battery.7
Instead,

they

assert

that

Alabama’s

discretionary-

function immunity, 1975 Ala. Code. § 6-5-338, shields
them from suit.

At this stage in the litigation it would

be premature to dismiss the Porters’ assault and battery
claims on that ground.
The

test

for

statutory,

discretionary-function

immunity under § 6-5-338 is set out in the Alabama
Supreme Court’s decision of Ex parte Cranman, 792 So.2d
392 (Ala. 2000).

See Brown, 608 F.3d at 741 (citing Ex

parte City of Tuskegee, 932 So.2d 895, 904 (Ala. 2005)
(“The restatement of State-agent immunity as set out in
Cranman, 792 So.2d at 405, now governs the determination
of whether a peace officer is entitled to immunity under

7. “The plaintiff in an action alleging assault and
battery must prove ‘(1) that the defendant touched the
plaintiff; (2) that the defendant intended to touch the
plaintiff; and (3) that the touching was conducted in a
harmful or offensive manner.’” Harper v. Winston County,
892 So.2d 346, 353 (Ala. 2004) (quoting Ex parte Atmore
Cmty. Hosp., 719 So.2d 1190, 1193 (Ala. 1998)).
21

§ 6–5–338(a).”)).

At this stage in the litigation, the

burden rests on the plaintiff to allege sufficient facts
from

which

a

reasonable

jury

could

conclude

that

a

defendant “acted willfully, maliciously, fraudulently, in
bad faith, or beyond [their] authority” in committing the
tort.

Cranman, 792 So.2d at 405; Brown, 608 F.3d at 741

(citing Ex parte Estate of Reynolds, 946 So.2d 450, 452
(Ala.

2006)).

Only

then

can

the

claim

survive

a

defendant’s motion to dismiss.
For much the same reason as detailed in this court’s
discussion of the Porters’ excessive-force claims, the
allegations

in

the

complaint

could,

if

proven

true,

justify liability for assault and battery, for the events
described

in

the

complaint

would

permit

a

jury

to

conclude that the alleged excessive force was applied
intentionally, gratuitously, and in bad faith.

Brown,

608 F.3d at 742.
It is unclear whether the Porters had hoped to also
hold the City of Enterprise liable for these alleged

22

torts, but the complaint does not provide any theory of
municipal

liability

and

therefore

the

claim

must

be

dismissed insofar as it seeks relief from the city.
C.

Malicious Prosecution (Claim Seven)

In claim seven, Daniel Porter alleges that the City
of Enterprise pursued a malicious prosecution against
him.

While it is unclear whether he intended to allege

this claim under state or federal law, his failure to
adequately

plead

a

claim

for

relief

under

either

authority requires the court to dismiss this claim.

1.

Federal Law

“To establish a federal malicious prosecution claim
under § 1983, a plaintiff must prove (1) the elements of
the common law tort of malicious prosecution, and (2) a
violation of her Fourth Amendment right to be free from
unreasonable seizures.”

Kingsland v. City of Miami, 382

F.3d 1220, 1234 (11th Cir. 2004).

Even if it is assumed,

without deciding, that the complaint sufficiently alleges

23

a factual basis for the common law tort of malicious
prosecution,8 it utterly fails to allege the requisite
unreasonable seizure.
Porter

bears

the

burden

of

proving

that

he

was

“seized in relation to the prosecution, in violation of
[his] constitutional rights.”
1235.

Kingsland, 382 F.3d at

In the case of a warrantless arrest, the Eleventh

Circuit has held that “the judicial proceeding does not
begin until the party is arraigned or indicted” and has
rejected the idea that a suspect is continually seized,
for the purposes of a wrongful prosecution claim, from
the moment of arrest through trial.

Id. at 1235-36.

Therefore, the arrest in this case “cannot serve as the

8. A claim for malicious prosecution under Alabama
law has four elements: “(1) that the present defendant
instituted a prior judicial proceeding against the
present plaintiff; (2) that in instituting the prior
proceeding the present defendant acted without probable
cause and with malice; (3) that the prior proceeding
ended in favor of the present plaintiff; and (4) that the
present plaintiff was damaged as a result of the prior
proceeding.” Wal-Mart Stores, Inc. v. Goodman, 789 So.2d
166, 174 (Ala. 2000).
24

predicate deprivation of liberty because it occurred
prior to the time of arraignment.”

Id.

Since the

complaint fails to identify any other seizure, it has not
alleged

a

Fourth

Amendment

violation

sufficient

to

withstand the defendants’ motion to dismiss.

2.
Treating

the

claim

requires the same result.

State Law
as

arising

under

state

law

The complaint identifies only

the City of Enterprise as a defendant and it appears
that, under Alabama law, a municipality cannot be held
liable for malicious prosecution.

Walker v. City of

Huntsville, 62 So.3d 474, 502 (Ala. 2010); see also
Franklin v. City of Huntsville, 670 So.2d 848, 852 (Ala.
1995); Neighbors v. City of Birmingham, 384 So.2d 113,
114 (Ala. 1980).

Porter has identified no cases that

undermine what appears to be more than 30 years of clear
precedent and therefore his malicious prosecution claim,

25

insofar at is relies on state law and is brought solely
against a municipality, must be dismissed.
***
For the foregoing reasons, it is ORDERED that:
(1) Defendants City of Enterprise, Javier Ruiz, Jason
Anderson, Gerard Dube, Eric Stinson, and James Sanders’s
motion to dismiss (doc. no. 30) is granted as to counts
four and seven of the amended complaint (doc. no. 27) and
said counts are dismissed.
(2) Said motion is granted as to counts five and six
to extent they are against defendant City of Enterprise
and said defendant is dismissed as to said counts.
(3) Said motion is denied in all other respects.
DONE, this the 28th day of March, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE