IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20020

Summary Calendar

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;SCOTTYWILSON,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:*

United States Court of Appeals

Fifth Circuit

F I L E D

October 24, 2011

Lyle W. Cayce

Clerk

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: 1 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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Case: 11-20020 Document: 00511642335 Page: 4 Date Filed: 10/24/2011