           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            March 9, 2009

                                       No. 08-30061                    Charles R. Fulbruge III
                                                                               Clerk

KALEEM ARSHAD, Dr., Individually and on behalf of decendent, Dr.
Jameela Arshad; NADEEM S ARSHAD, Individually and on behalf of
decendent, Dr. Jameela Arshad,

                                                   Plaintiffs - Appellants,
v.

NICK CONGEMI, in his capacity as Chief of Police for the City of Kenner;
KENNER CITY; KENNER POLICE DEPARTMENT; GERALD MILLER,
Officer; RYAN KRUMMEL, Officer; KIMBERLYN BRIGHT, Officer; EMILE
SANCHEZ, Sergeant; GEMINI INSURANCE COMPANY; CLARENDON
AMERICA INSURANCE COMPANY,

                                                   Defendants - Appellees.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                              USDC No. 2:06-CV-59


Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
       The Plaintiffs-Appellants, Dr. Kaleem Arshad and Nadeem S. Arshad (“the
Arshads”), appeal from the district court’s grant of summary judgment in favor
of the Defendants-Appellees, dismissing with prejudice the Arshads’ federal

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                   No. 08-30061

claims and certain state law claims and dismissing without prejudice the
Arshads’ remaining state law claims.
                                     I. FACTS
      On January 10, 2005, at approximately 10:00 p.m., Dr. Jameela Arshad,
a black female and licensed physician, was driving in New Orleans near the
intersection of Williams Boulevard and West Esplanade when she witnessed a
vehicle strike a young boy on a bicycle. She stopped her vehicle and went to the
boy’s side. Another civilian in plain clothes arrived at the scene about the same
time—Robert Evans, a white male claiming to be an emergency medical
technician (“EMT”). In an apparently heated exchange, Evans asked to see Dr.
Arshad’s credentials, and she informed him that she was a physician and that
it was “her scene.”
      The next person to arrive on the scene was Officer Ryan Krummel, an off-
duty Kenner Police officer.     Dr. Arshad informed him, too, that she was a
physician and that it was “her scene.” Officer Krummel testified that Evans told
him Dr. Arshad did not have any proof that she was a physician.              Officer
Krummel also testified that he told Evans and Dr. Arshad not to touch the boy,
but, while he didn’t know “if she was going to render aid or grab the juvenile, . . .
[Dr. Arshad] made attempts, or motions, towards the juvenile.”
      Next, Kenner Police Officer Gerald Miller reported to the scene and did not
note anything unusual on his arrival. He recognized Officer Krummel but not
Evans or Dr. Arshad. Officer Miller testified that Evans immediately informed
him that Dr. Arshad claimed she was a physician but would not present her
credentials. Officer Miller asked Dr. Arshad to present them, but she said she
did not have them with her. Officer Miller then told her that she could not touch
the boy and repeatedly ordered her to step away from the scene, but she refused
and became increasingly agitated. No one asked Evans for his credentials at any
point, and Officer Miller admitted that he never told Evans to step away.

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      Dr. Arshad turned back to the boy and attempted to place her hands on
him. Officer Miller testified that he “didn’t know what her intentions were” but
“never saw her trying to harm the patient.” Officer Miller then grabbed her arm,
claiming in later testimony that she had committed the crime of “failure to obey
lawful orders” and was possibly “attempting to commit a battery on the victim.”
Dr. Arshad physically resisted Officer Miller, pulled away from him, and turned
back to the boy.
      Officer Miller then pulled her away from the boy again, and a scuffle
ensued. When Dr. Arshad continued to struggle, Officer Miller swept her legs
out from under her, pinned her to the ground face-first, knelt on her back, and
cuffed her hands behind her back. Dr. Arshad reportedly became calm and
complacent immediately after being handcuffed. Officer Miller then placed her
in the back of a police cruiser of Officer Kimberlyn Bright, who had recently
arrived on the scene. She was locked in the car alone with the windows rolled
up, and at least one witness reported that she began kicking at some point after
being placed in the car.
      Both Officers Miller and Bright (who had the only set of keys to the car)
walked away from the locked car. Several minutes later, Officer John Louis was
passing by Officer Bright’s car and noticed that Dr. Arshad appeared to be
foaming at the mouth. Thinking she had been pepper-sprayed, he began asking
other officers who had done so. Someone radioed Officer Bright, who returned
from across the street to unlock the car. It is unclear how much time had passed
between the time Dr. Arshad was placed in the car and when she received
medical attention, but evidence suggests between five and nine minutes passed.
She was removed from the car as soon as it was unlocked, but she was
unresponsive, and attempts to revive her were unsuccessful. The cause of death
was later determined to be a cardiopulmonary arrest.



                                       3
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       In this suit, commenced January 6, 2006, the Arshads, Dr. Arshad’s
surviving husband and son, sued Nick Congemi, in his official capacity as Chief
of Police for the City of Kenner; the City of Kenner; Kenner Police Department;
Gemini Insurance Company; and Clarendon America Insurance Company
(collectively, “the City”). The Arshads also sued Officers Miller, Krummel, and
Bright; Sergeant Emile Sanchez,1 and Robert Evans (“the individual
defendants”), all in their individual capacities.
       The Arshads asserted state law tort claims and federal claims against the
individual officers and Evans under 42 U.S.C. § 1983 for violating Dr. Arshad’s
Fourth, Eighth, and Fourteenth Amendment rights, specifically relating to the
alleged false arrest, use of excessive force, and cruel and unusual punishment
(deliberate indifference). They also asserted § 1983 claims against the City
based on an alleged custom or policy of arresting licensed physicians at the scene
of accidents without probable cause.
       On October 15, 2007, following their answers which asserted qualified
immunity, the defendants filed motions for summary judgment. Evans argued
that he had not acted under color of state law and so was not subject to a § 1983
action, nor was he liable under the tort claims.              The City and the other
individual defendants argued that (1) the arrest of Dr. Arshad had been lawful
and had not violated her constitutional rights; and (2) the Arshads had failed to
show a custom or policy in place that led to a violation of her constitutional
rights.
       At a hearing on December 12, 2007, the district court granted the
defendants’ motions, as formalized in a December 13, 2007 written judgment.
The court granted summary judgment on all § 1983 claims against the
individual defendants based on qualified immunity. The court specifically found


       1
       Sergeant Sanchez, the ranking officer, arrived on the scene of the accident after Dr.
Arshad had been locked in the car. His role was limited and is not separately discussed.

                                             4
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that Dr. Arshad’s rights with respect to excessive force and deliberate
indifference had not been violated, but it made no such determination on the
right to be free of false arrest. The court also granted summary judgment on the
Monell claim against the City after it determined the Arshads’ evidence was
insufficient to show a custom or policy.
      In addition to dismissing the § 1983 claims against Evans, the court
dismissed the state law tort claims against him with prejudice; as a result, no
claims against Evans remain. With respect to the remaining state law claims
against the other defendants, the court declined to exercise supplemental
jurisdiction and dismissed those claims without prejudice.
      The Arshads now appeal, attacking the dismissal with prejudice of the
federal claims and the dismissal without prejudice of the state law claims
against the defendants other than Evans.        The Arshads do not attack the
dismissal with prejudice of the state law claims against Evans.


              II. JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction over the § 1983 claims under 28 U.S.C.
§ 1331, and jurisdiction over the supplemental state law claims under 28 U.S.C.
§ 1367. We have jurisdiction over the district court’s final judgment pursuant
to 28 U.S.C. § 1291.
      “We review the district court's grant of summary judgment de novo,
applying the same standard as the district court.” Environmental Conservation
Organization v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2008) (citing
Greenwell v. State Farm Mut. Auto. Ins. Co., 486 F.3d 840, 841 (5th Cir. 2007)).
See F ED. R. C IV. P. 56.




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                                  No. 08-30061

                          III. LAW AND ANALYSIS
                                A. § 1983 Claims
      The district court dismissed all of the § 1983 claims against the individual
defendants based on qualified immunity. Qualified immunity “provides ample
protection to all but the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
      Whether a government official is entitled to qualified immunity
      “generally turns on the ‘objective reasonableness of the action’
      assessed in light of the legal rules that were ‘clearly established’ at
      the time it was taken.” The law is deemed to be clearly established
      if the contours of a right asserted are sufficiently clear that a
      reasonable official would understand that what he is doing violates
      that right. . . . If reasonable public officials could differ on the
      lawfulness of the defendant's actions, the defendant is entitled to
      qualified immunity. Whether the conduct of which the plaintiff
      complains violated clearly established law is an essentially legal
      question.
White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992) (citations omitted) (emphasis
added). “It is important to emphasize that this inquiry must be undertaken in
light of the specific context of the case, not as a broad general proposition.”
Brosseau v. Haugen, 543 U.S. 194, 198–200 (2004) (quotation marks omitted).


      More concretely: “To rebut the qualified immunity defense, the plaintiff
must show: (1) that he has alleged a violation of a clearly established
constitutional right, and (2) that the defendant's conduct was objectively
unreasonable in light of clearly established law at the time of the incident. We
review the district court's grant of qualified immunity de novo.” Waltman v.
Payne, 535 F.3d 342, 346 (5th Cir. 2008) (footnote omitted). We have discretion
“in deciding which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case at hand.”
Pearson v. Callahan, — U.S. —, 129 S. Ct. 808, 818 (2009).


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                                   No. 08-30061

                                   False Arrest
      Under the first part of the qualified immunity test, “[t]he right to be free
from arrest without probable cause is a clearly established constitutional right.”
Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994).          “For warrantless
arrests, the test for whether the ‘police officer ha[d] probable cause to arrest [is]
if, at the time of the arrest, he had knowledge that would warrant a prudent
person's belief that the person arrested had already committed or was
committing a crime.’” Id. (quoting Duckett v. City of Cedar Park, 950 F.2d 272,
278 (5th Cir. 1992)).
      Police officers who “reasonably but mistakenly conclude that
      probable cause is present” are entitled to qualified immunity.
      Hunter v. Bryant, 502 U.S. at ----, 112 S.Ct. at 536 (quoting
      Anderson [v. Creighton], 483 U.S. at 641, 107 S.Ct. at 3040). . . .
      Similarly, “[t]he Constitution does not guarantee that only the
      guilty will be arrested. If it did, § 1983 would provide a cause of
      action for every defendant acquitted—indeed, for every suspect
      released.” Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689,
      2695, 61 L.Ed.2d 433 (1979).
                                        ***
      The subjective beliefs of [the officers] as to what facts they relied
      upon in forming the probable cause to arrest . . . are irrelevant to
      the objective reasonableness of their actions. Anderson, 483 U.S. at
      641, 107 S.Ct. at 3040. The issue here is an “objective (albeit
      fact-specific) question whether a reasonable officer could have
      believed” that he was violating a person's constitutionally protected
      rights under the circumstances of the complained of action. Id. For
      this reason, we have held that “[e]ven if there was not probable
      cause to arrest the plaintiff for the crime charged, proof of probable
      cause to arrest the plaintiff for a related offense is also a defense” to
      a false arrest section 1983 claim. [Pfannstiel v. City of Marion, 918
      F.2d 1178, 1183 (5th Cir. 1990)].
Id. at 1017.
      The district court did not specifically find that Officer Miller actually had
probable cause to arrest Dr. Arshad. The court’s finding of qualified immunity
was premised on its determination that Officer Miller was not objectively

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unreasonable in concluding that there was probable cause. We agree. Although
the scene appeared normal when Miller first got there, the situation quickly
escalated when Officer Miller ordered Dr. Arshad, dressed in plainclothes, to
present identification.      Dr. Arshad repeatedly refused to move; refused to
present identification; became agitated; insisted several times that it was her
scene; and attempted to place both hands on the boy. Only after all of that had
occurred did Officer Miller grab her arm, effecting an arrest.                Miller later
testified that he thought she may have been about to commit a battery on the
boy. Even if he ultimately lacked probable cause, it is hard to say that his belief
is objectively unreasonable in light of the chaos of the accident scene.
       Moreover, although not argued by the Defendants-Appellees, a reasonable
officer could have believed there to be probable cause under a Louisiana criminal
statute which provides, in relevant part: “Interference with medical treatment
is the intentional and willful interference with a[n] . . . emergency medical
technician . . . in the performance of their duties relating to the care and
treatment of patients . . . at the scene of a medical emergency.” L A. R EV. S TAT.
A NN. § 14:332(A) (2005). Assuming a reasonable officer could have believed that
Evans—who was not in a medical uniform or presenting identification, but who
was holding the boy’s head and otherwise acting as if he was in control—was an
EMT and that Dr. Arshad was simply an unidentified stranger interfering with
the boy’s medical treatment, this statute could conceivably give rise to probable
cause.2




       2
         That this statute may constitute a misdemeanor with a “fine-only” penalty upon first
violation is irrelevant for the probable cause determination. The Supreme Court has held
that, even with respect to misdemeanors, officers are “authorized (not required, but
authorized) to make a custodial arrest without balancing costs and benefits or determining
whether or not [the] arrest was in some sense necessary.” Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001). The Court specifically rejected any distinction between “jailable” and
“fine-only” offenses. Id. at 348–49.

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      In short, in light of the chaos of the scene and Dr. Arshad’s refusal to
present identification, a reasonable officer could have concluded that probable
cause existed to arrest her.     Thus Officer Miller and the other individual
defendants are entitled to qualified immunity on the false arrest claim.


                                 Excessive Force
      The Supreme Court discussed claims of excessive force in both Graham v.
Connor, 490 U.S. 386 (1989), and Saucier v. Katz, 533 U.S. 194 (2001), firmly
establishing that we examine the objective reasonableness of the officer’s actions
not with the benefit of hindsight but in light of the “on-scene perspective” of the
officer. Saucier, 533 U.S. at 205 (citing Graham, 490 U.S. at 393, 396, 397).
      To determine the objective reasonableness of an officer's use of force,
      “[w]e pay ‘careful attention to the facts and circumstances of each
      particular case, including the severity of the crime at issue, whether
      the suspect posed an immediate threat to the safety of the officers
      or others, and whether he [was] actively resisting arrest or
      attempting to evade arrest by flight.’” Gutierrez v. City of San
      Antonio, 139 F.3d 441, 447 (5th Cir. 1998) (alteration in original)
      (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104
      L.Ed.2d 443 (1989)).
Tarver v. City of Edna, 410 F.3d 745, 753 (5th Cir. 2005).
      As the Supreme Court recognized in Saucier, “[a]n officer might correctly
perceive all of the relevant facts but have a mistaken understanding as to
whether a particular amount of force is legal in those circumstances. If the
officer's mistake as to what the law requires is reasonable, however, the officer
is entitled to the immunity defense.” Saucier, 533 U.S. at 205. “Qualified
immunity operates . . . to protect officers from the sometimes ‘hazy border
between excessive and acceptable force,’ Priester v. Riviera Beach, 208 F.3d 919,
926–927 (C.A.11 2000), and to ensure that before they are subjected to suit,
officers are on notice their conduct is unlawful.” Saucier, 533 U.S. at 206.



                                        9
                                  No. 08-30061

      The Arshads argue that the arrest was unlawful and that the use of any
force was therefore excessive. However, we have already found that Officer
Miller was objectively reasonable in believing probable cause existed to arrest
Dr. Arshad. Thus, we must determine whether the use of force was excessive or
objectively unreasonable in light of that objectively reasonable arrest. It is
undisputed that Dr. Arshad forcibly resisted Officer Miller after he grabbed her
arm. Under Graham, we must consider the fact that Dr. Arshad was resisting
arrest.
      We must also consider the fact that Dr. Arshad suffered only minor,
superficial injuries, such as scrapes, in the forcible arrest itself. She calmed
down as soon as she was handcuffed and was able to walk and talk on her way
to being put in the police car. It was only in the police car several minutes after
her arrest that Dr. Arshad suffered a cardiopulmonary arrest. Even if we were
to draw a connection between those two events, we must focus on the force
Officer Miller actually used, not just on the ultimate consequence, as illustrated
by Gregory v. County of Maui, 523 F.3d 1103 (9th Cir. 2008).
      In Gregory, the Ninth Circuit found that police officers had not used
excessive force when a trespasser died of a cardiopulmonary arrest shortly after
being forcibly arrested by three officers. Id. at 1105. The trespasser had been
excitedly wielding a pen as a weapon; the officers verbally ordered him to drop
the pen; and when he refused, the officers wrestled him to the ground and
handcuffed him. Id. Throughout the struggle, he kept shouting that he couldn’t
breathe but continued to fight the officers.      Id.   When the officers finally
handcuffed him, they discovered that he was not breathing and were unable to
resuscitate him. Id. The cause of death was determined to be a heart attack
caused in part by a preexisting heart condition; it was also determined that he
had not been choked in the struggle. Id.



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                                  No. 08-30061

      The district court dismissed the claims against the officers on the basis of
qualified immunity, and the Ninth Circuit affirmed, noting the trespasser’s
reported behavior prior to the officers’ arrival, his erratic behavior throughout
the confrontation, his repeated refusal to drop the pen, his resistance when they
tried to disarm him, the officers’ resorting to physical confrontation only after
verbal requests, and the lack of evidence that the officers struck the trespasser
or used weapons. 523 F.3d at 1106–07. The court concluded:
      Accordingly, although the confrontation came to a tragic end, we
      must conclude that the officers did not use excessive force. The
      severity of [the trespasser’s] trespass and of the threat he posed
      were not overwhelming, but we are satisfied that the force used by
      the officers was proportionate to both. The Fourth Amendment does
      not require more. See Forrester v. City of San Diego, 25 F.3d 804,
      807-08 (9th Cir. 1994) (“Police officers ... are not required to use the
      least intrusive degree of force possible ... [T]he inquiry is whether
      the force that was used to effect a particular seizure was
      reasonable.”).
Id.
      Here, Officer Miller had been called to the scene because of the accident,
not because of Dr. Arshad’s presence, and nothing appeared to be out of the
ordinary upon his arrival. However, the situation escalated quickly as soon as
Officer Miller asked Dr. Arshad to present her credentials. It is clear that
Officer Miller first attempted to rely on verbal orders, but Dr. Arshad repeatedly
refused to comply by presenting her credentials, refused to step away from the
boy, continued to assert that it was her scene, and grew increasingly agitated.
Only then did Miller attempt to arrest her simply by pulling her away by her
arm, but she physically resisted arrest. In light of Dr. Arshad’s behavior and her
resistance to less forcible methods, it was not objectively unreasonable to use a
forcible takedown to effect her arrest. That is especially true in light of the fact
that she sustained, at most, only minor scrapes and bruises in the takedown




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                                  No. 08-30061

itself and, unlike in Gregory, showed no signs of cardiopulmonary arrest—even
shortness of breath—during or immediately after the struggle.
      The district court correctly concluded that Officer Miller’s use of force was
not excessive under the Fourth Amendment and that his actions were not
objectively unreasonable. Accordingly, Officer Miller and all other individual
defendants are entitled to qualified immunity on the excessive force claim.


                             Deliberate Indifference
      The Arshads assert deliberate indifference claims under the Eighth and
Fourteenth Amendments for Dr. Arshad’s post-arrest death following her
cardiopulmonary arrest.     It is clear that deliberate indifference claims are
available under the Eighth and Fourteenth Amendments even to pretrial
detainees like Dr. Arshad, but the state actor’s “liability for episodic acts or
omissions cannot attach unless the official had subjective knowledge of a
substantial risk of serious harm to a pretrial detainee but responded with
deliberate indifference to that risk.” Hare v. City of Corinth, Miss., 74 F.3d 633,
650 (5th Cir. 1996) (en banc). “[T]he correct legal standard is not whether the
. . . officers ‘knew or should have known,’ but whether they had gained actual
knowledge of the substantial risk of [serious harm] and responded with
deliberate indifference.” Id.
      The Arshads have presented no evidence that the officers actually knew
of her heart condition (indeed, it appears that no one, including Dr. Arshad,
knew of the condition) or that she was having any problems breathing or with
chest pain after being handcuffed. Though there is some dispute as to her exact
behavior, there is no question that she was able to breathe, talk, and walk
immediately after being handcuffed.       Thus, there is no indication that the
officers knew based on Dr. Arshad’s actual behavior that there was any
substantial risk of serious harm; she showed no such indications.

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      The Arshads argue that the Kenner Police Department’s Operations
Manual is sufficient to show subjective knowledge of a substantial risk of serious
harm because it contains statements instructing officers not to place prisoners
“in a hot or closed up vehicle”; to allow an arrestee to regain his or her breath
“[i]n situations involving extreme physical exertion”; and “not [to] leave the
prisoner unattended in a closed vehicle . . . .” These provisions are insufficient
to show the requisite subjective knowledge. This is especially true given that the
temperature was approximately 65 degrees Fahrenheit (and thus reasonably
comfortable) at the time of the incident, and Dr. Arshad was in no apparent
distress immediately following her arrest.
      The district court properly concluded that the individual defendants had
not been deliberately indifferent in violation of Dr. Arshad’s Eighth and
Fourteenth Amendment rights, and their actions were not objectively
unreasonable. Consequently, the individual defendants are entitled to qualified
immunity on the deliberate indifference claim.


                                 Monell Claim
      The Arshads also assert a § 1983 claim, under Monell v. Dep't of Soc.
Servs., 436 U.S. 658 (1978), that the City had a custom or policy of arresting
physicians at the scene of an accident. Because “governmental entities are not
entitled to qualified immunity,” we would ordinarily need to determine first
whether Dr. Arshad’s constitutional rights were actually violated. Gates v.
Texas Dept. of Protective and Regulatory Services, 537 F.3d 404, 436 (5th Cir.
2008). Here, however, the district court did not make a specific determination
as to whether the arrest was unconstitutional, nor must we, because, even if we
assume a constitutional violation, the Arshads fail to present sufficient evidence
of a custom or policy by the City to support a Monell claim.



                                       13
                                 No. 08-30061

      It is well established that governmental liability under § 1983 must
      be premised on a government policy or custom that causes the
      alleged constitutional deprivation. Monell v. Dep't of Soc. Servs.,
      436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A policy
      may be a policy statement, ordinance, regulation, or decision that is
      officially adopted and promulgated by the government's lawmaking
      officers or by an official to whom the lawmakers have delegated
      policy-making authority. Burge v. St. Tammany Parish, 336 F.3d
      363, 369 (5th Cir. 2003). A custom is shown by evidence of a
      persistent, widespread practice of government officials or employees,
      which, although not authorized by officially adopted and
      promulgated policy, is so common and well settled as to constitute
      a custom that fairly represents government policy. Id.
Id.
      It is clear the Arshads cannot show that there was a custom because they
have failed to show “a persistent, widespread practice” of false arrests by the
City. Id. The Arshads point to only one similar previous incident: In 2000,
Kenner Police officers pepper-sprayed, arrested, and removed from the scene one
Dr. Abdallah while he was tending to the victim of an accident he witnessed.
      Other than the Dr. Abdallah incident, the only evidence the Arshads
submit to show a policy is a letter from Police Chief Congemi to Fire Marshal
Michael Zito on June 20, 2003. In that letter, after noting that East Jefferson
General Hospital EMTs “have superior knowledge of to whom they should then
surrender responsibility” at accident scenes, Congemi stated that “we have
arrested licensed doctors who have attempted to interfere with [EMTs] . . . [and]
will continue to do so in order to protect the victims and technicians.”
      The Arshads concede that there was nothing in the City’s official policy
manual suggesting that this was the City’s official policy, and they have
produced no testimony to that effect, but they argue that the Congemi letter and
the Dr. Abdallah incident are sufficient to show a de facto policy. As a matter
of law, this evidence, without more, is insufficient to demonstrate a policy or
custom so as to make out a Monell claim.

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                                  No. 08-30061

      [I]t is not enough for a § 1983 plaintiff merely to identify conduct
      properly attributable to the municipality. The plaintiff must also
      demonstrate that, through its deliberate conduct, the municipality
      was the “moving force” behind the injury alleged. That is, a plaintiff
      must show that the municipal action was taken with the requisite
      degree of culpability and must demonstrate a direct causal link
      between the municipal action and the deprivation of federal rights.
Bd. of County Comm'rs v. Brown, 520 U.S. 397, 404 (1997) (emphasis in
original).
      Causation bears on implementing the rule against attributed
      liability under § 1983, insisting as it does that the local government
      unit itself be the actor. . . . It follows that when the claim is that
      while a municipal policy itself did not violate federal law, it caused
      another actor to inflict the injury, rigorous standards of culpability
      and causation must be applied to ensure that the municipality is not
      held liable solely for the actions of its employee.
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (footnotes and
internal quotation marks omitted).
      Here we have the type of situation envisioned by Victoria W., where “the
[alleged] policy itself did not violate federal law [but] caused another actor
[Officer Miller] to inflict the injury,” so we must apply “‘rigorous standards of
culpability and causation.’” 369 F.3d at 482 (quoting Bryan County, 520 U.S. at
405). The Arshads have produced no evidence showing that Officer Miller knew
of the letter or had other knowledge of a policy of illegally arresting licensed
physicians. That failure is fatal to the causation element of their Monell claim.
See, e.g., Batista v. Rodriguez, 702 F.2d 393, 399 (2d Cir. 1983) (“[T]he record
before us . . . contains no proof of causation, i.e., that the police officers were
executing a City policy. . . . [T]here is no evidence in the record furnished to us
that [the] officers . . . knew of [prior] incidents or were aware of any City policy
condoning police violations of civil rights.”). There is simply nothing to show
that Officer Miller acted pursuant to City policy, and to hold the City responsible
for his actions would impose respondeat superior liability for Officer Miller’s

                                        15
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actions—a result barred by § 1983. City of Canton, Ohio v. Harris, 489 U.S. 378,
385 (1989).
      Because the Arshads have presented no evidence showing that the City
was the “moving force” behind the alleged constitutional violations, Bryan
County, 520 U.S. at 404, we are satisfied that the district court correctly
concluded the Arshads presented insufficient evidence of a custom or policy
under Monell, a necessary predicate to visit liability on the City.


                                State Law Claims
      The district court had subject matter jurisdiction over the Arshads’ § 1983
claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the
state law claims pursuant to 28 U.S.C. § 1367. Section 1367(c)(3) specifically
provides: “(c) The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if — . . . (3) the district court has
dismissed all claims over which it has original jurisdiction . . . .” Such a decision
is subject to review only for abuse of discretion. Priester v. Lowndes County, 354
F.3d 414, 425 (5th Cir. 2004). Because we find that the district court did not err
in dismissing the Arshads’ federal claims with prejudice, we also find that the
district court did not err in declining to exercise supplemental jurisdiction over
the related state law claims. We affirm the dismissal without prejudice of those
claims.


                                 CONCLUSION
      For the above reasons, the district court’s judgment is affirmed.
      AFFIRMED.




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