     Case: 11-20020     Document: 00511642335         Page: 1     Date Filed: 10/24/2011




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

                                                                            FILED
                                                                         October 24, 2011
                                     No. 11-20020
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ALLEN MILLER,

                                                  Plaintiff-Appellant

v.

DAVID GRAHAM, Deputy, Harris County; TOMMY THOMAS, Sheriff; KEN
MAGDESEN, Harris County District Attorney; NAME UNKNOWN, Assistant
District Attorney; NAME UNKNOWN, Assistant District Attorney; STARK
TRANSPORTATION; JOHN STARK, Official and Individual Capacity; AMY
STARK, Official and Individual Capacity; TIFFANY WATKINS, Stark
Employee, Official and Individual Capacity; SCOTTY WILSON, Stark Employee,
Official and Individual Capacity; WENDY WILSON, Stark Employee, Official
and Individual Capacity; FRANCISCO SALINAS, Pii NorthAmerica Employee,
Official and Individual Capacity; ROBERT RAMIREZ, Pii NorthAmerica
Employee, Official and Individual Capacity; PII NORTHAMERICA; RUSSELL
STARK,
                                           Defendants-Appellees


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-3844


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-20020    Document: 00511642335      Page: 2   Date Filed: 10/24/2011

                                  No. 11-20020

      Allen Roy Miller, Texas prisoner # 1569565, filed a 42 U.S.C. § 1983
complaint seeking $3,000,000 in actual damages and $12,000,000 in punitive
damages for, among other things, unlawful arrest, malicious prosecution, false
imprisonment, conspiracy, and retaliation. Miller, a truck driver for Stark
Transportation, picked up a load of equipment from PII NorthAmerica, one of
Stark Transportation’s clients.     Miller alleged that he was told by Stark
Transportation employees to deliver the equipment in violation of trucking
regulations and to falsify his log book. Miller alleged that he refused to do so
and that Stark employees submitted false information that he had stolen the
truck and the equipment it contained to the Harris County Sheriff’s Office.
Miller was arrested for theft of over $200,000. The theft charge was dismissed
without prosecution.
      The district court ordered Miller to submit a more definite statement.
Harris County Deputy David Graham, the officer who had arrested Miller,
moved to dismiss the complaint against him. The district court entered an order
converting the motion to dismiss into a motion for summary judgment and
ordered Graham to supplement the motion and Miller to respond. Miller moved
to amend his complaint and Graham opposed the motion.
      The district court considered the matter and found that Miller had failed
to raise a genuine question of material fact that Graham violated the
constitution related either to the obtaining of the arrest warrant, the arrest, or
the subsequent prosecution and that Graham was entitled to qualified
immunity. The district court dismissed the claims against the Sheriff and the
defendants connected to the District Attorney’s Office because Miller failed to
allege any personal involvement in the incidents related to the complaint. The
district court dismissed the charges against the defendants connected to Stark
Transportation and PII NorthAmerica because they were not state actors.
Because Miller failed to state any federal violations, the district court dismissed



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                                  No. 11-20020

his state law claims without prejudice. The district court also denied Miller’s
motion to amend his complaint.
      We review the grant of a motion for summary judgment de novo, applying
the same standards as the district court. Dillon v. Rogers, 596 F.3d 260, 266
(5th Cir. 2010). “In the context of a party asserting immunity in a summary
judgment motion, [t]he moving party is not required to meet its summary
judgment burden for a claim of immunity.” Hathaway v. Bazany, 507 F.3d 312,
319 (5th Cir. 2007) (internal quotation marks and citation omitted). In the
summary judgment context, a government official need only plead qualified
immunity, which then shifts the burden to the plaintiff. Id.; Gates v. Tex. Dep’t
of Protective and Regulatory Servs., 537 F.3d 404, 419 (5th Cir. 2008). A
nonmovant cannot satisfy his summary judgment burden “with conclusory
allegations, unsubstantiated assertions, or only a scintilla of evidence.”
Hathaway, 507 F.3d at 319 (internal quotation marks and citation omitted).
      Miller argues that the district court erred in granting summary judgment
in favor of Graham’s assertion of qualified immunity. Miller argues that he was
arrested without probable cause because Graham intentionally submitted false
information to the magistrate to secure the arrest warrant. Miller has not
overcome Graham’s assertion of qualified immunity because he presented
nothing but conclusory allegations and unsubstantiated assertions to support his
claim that Graham knowingly deceived the magistrate to secure an arrest
warrant. See Hathaway, 507 F.3d at 319.
      Section 1983 authorizes suits against any person who acts under color of
state law to deprive another of a constitutionally protected federal right. Miller
argues that the district court erred in dismissing the complaint against the
defendants connected to Stark Transportation and PII NorthAmerica because
they were not state actors. Miller is correct in his argument that a private
individual may be deemed to act under color of law in certain circumstances,
such as when a person conspires with state actors. Adickes v. S.H. Kress & Co.,

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                                    No. 11-20020

398 U.S. 144, 152 (1970). Miller has presented no specific facts showing an
agreement between the private defendants and any state actor in this case.
      A district court may decline to exercise supplemental jurisdiction over
state-law claims if it has dismissed all claims over which it has original
jurisdiction. 28 U.S.C. § 1367(c)(3); Rhyne v. Henderson Cnty., 973 F.2d 386, 395
(5th Cir. 1992). When a district court exercises its discretion and dismisses the
state-law claims, it must do so without prejudice so that the plaintiff may refile
in the appropriate state court. Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th
Cir. 1999). Miller argues that the district court should not have dismissed his
state-law claims. Miller has not shown any abuse of discretion.
      We note that the Final Judgment of November 18, 2010, dismisses the
entire case with prejudice. In the Memorandum and Order entered the same
day, the district court stated it would dismiss the state law claims without
prejudice. An amended judgment can be entered on remand reflecting the
without-prejudice dismissal of the state law claims. Fed. R. Civ. P. 60(a).
      Miller argues that the district court erred in denying his motion to amend
his complaint after the defendant answered. The decision to deny leave to
amend in this case is reviewed for abuse of discretion. Lowrey v. Tex. A&M
Univ. Sys., 117 F.3d 242, 245 (5th Cir. 1997). Miller has not shown on appeal
how the amendment would have made any difference to the outcome of the case
and has not shown that the district court abused its discretion in denying the
motion to amend.
      Finally, Miller has moved to strike Graham’s brief because it was not
timely filed. This court granted Graham an extension of time in which to file his
brief. Miller’s motion is denied.
      AFFIRMED; MOTION DENIED; REMANDED for entry of amended
judgment.




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