### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20020 Summary Calendar

ALLEN MILLER, Plaintiff-Appellant

v. DAVID GRAHAM, Deputy, Harris County; TOMMY THOMA S , Sheriff; KEN MAGDESEN, Harris County District Attorney; NAME UNKNOWN, Assistant District At t orney; NAME UNKNOWN, Assistant District Attorney; STARK TRANSPORTATION; JOHN STARK, Official and Individual Capacity; AMY STARK, Official and Individual C a pacity; TIFFANY WATKINS, Stark E m p loye e , O f

f ici al an d I n dividual Capacity ; S C O TTY WI L S O N , S t ark E m p loye e , Official and Individual Capacity; WENDY WILSON, Stark Em p l o y e e, 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: * U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Octob er 24 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-20020 Document: 00511642335 Page: 1 Date Filed: 10/24/2011No. 11-20020

Allen R o y Miller, Texas prisoner # 1569565, filed a 42 U.S.C. § 1983 complaint seeking $3,00 0 , 0 0 0 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 fo r S t a rk Transportation, picked up a load of equipment from PII NorthA m e r i c a , one of Stark Trans p o rtation’s clients. Miller alleged that he was told by Stark Transportation employees to d e l iv er the equipment in violation of trucking regu l a t i o n s a n d to falsify his log book. Miller alleged that he refused to do so and that S t a r k e m ployees submitted false information that he had stolen the truck and the equipment it contained to the Harris C o u nty 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 de f i n i t e 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 m o t i o n t o 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 rais e 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 t o q ualified immunity. The district court d i s missed the claims against the Sheriff and the de f e n dants 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 a n d P I I NorthAmerica because they were not state actors. Because Miller failed to state any federal violations, the district court dismissed

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his state law claims without prejudice. T h e di s t rict 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 d i s t r i c t court. Dillon v. Rogers , 596 F.3d 260, 266 (5th Cir. 2010). “In the context of a p a rt y asserting immunity in a summary j u dgment 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 C i r . 2 0 0 7) (internal quotation marks and citation omitted). In the summary jud g m e n t c ontext, 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. 20 0 8)

. A nonmovant cannot satisfy his summary judgment burden “w i th conclusory allegations , u n s ubstantiated 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 s e c u r e the arrest warrant. Miller has not

overcome Graham’s assertion of qualified immunity because he presented

no thing but conclusory allegations and unsubs t anti at e d a s s e rtio n s to s up p o rt hi s 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 t o S t ark Transportation and PII NorthAmerica because they were not state actors. Miller is co rr e c t i n his argument that a private individual m a y b e 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. , 3 Case: 11-20020 Document: 00511642335 Page: 3 Date Filed: 10/24/2011No. 11-20020

398 U.S. 144, 152 (19 7 0 )

. 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 al l c laims 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 c a s e with prejudice. In the Memorandum and Order entered the same day, the district court stated it would dismiss the state law clai m s w i t h o u t prejudice. An amended judgment can be entered on remand r e f l e c t i n g 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 reviewe d f or 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; M O T ION DENIED; REMANDED for entry of amended judgment.

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