Weir v. Tramel ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10788
Summary Calendar
MARK D. WEIR,
Plaintiff-Appellant,
versus
T.D. TRAMEL; TARRANT COUNTY SHERIFF’S DEPARTMENT,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:98-CV-327-Y
--------------------
January 25, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Mark D. Weir, Texas prisoner # 610870, appeals the district
court’s grant of defendant Tramel’s motion for summary judgment
in this 42 U.S.C. § 1983 action. Weir’s motion for appointment
of counsel is DENIED. Weir argues that there is a factual
dispute about how many times Tramel told him to put his hands out
the window, regarding the fact that he was in the process of
putting his hands out when Tramel fired the shot, and whether
Tramel had probable cause to stop the vehicle. He contends that
*
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that this opinion should not be published and is not precedent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. 99-10788
-2-
his allegations show a needless use of force. He argues that the
stop based on traffic warrants did not justify a use of force.
He argues that Tramel had no factual basis to believe that he had
a weapon. He contends that he was no threat to Tramel inside of
his vehicle while Tramel remained near the rear of the vehicle.
He argues that a reasonable officer would not have felt that his
life was in danger.
Tramel’s actions were objectively reasonable. Under the
circumstances, a reasonable officer could well fear for his
safety. Officer Tramel had stopped a vehicle on outstanding
warrants and had ordered the driver to place his hands in view
several times. The driver appeared to Tramel to be reaching down
for something. The driver made eye contact with Tramel but did
not comply with his directions to show his hands. Then the
driver turned towards the open window. Tramel believed that the
driver was trying to reach for a weapon and fired his weapon.
Such a belief was not unreasonable. See Reese v. Anderson, 926
F.2d 494, 500-01 (5th Cir. 1991) (vehicle occupant’s actions in
repeatedly reaching down in defiance of officer’s orders to raise
hands made it reasonable for officer to fear for his safety and
to use deadly force).
Weir’s explanation regarding why he did not raise his hands,
because the transmission would not shift to park, does not affect
the analysis and does not create a genuine issue of material fact
which would preclude summary judgment for the defendant. Tramel
could not see and could not know why Weir’s hands remained out of
sight. Even if accepted as true, that fact is irrelevant. See
No. 99-10788
-3-
Reese, 926 F.2d at 501 (fact that plaintiff was actually unarmed
was irrelevant; plaintiff’s actions alone could cause a
reasonable officer to fear imminent and serious physical harm).
Weir argues that the district court denied him adequate
notice of the summary judgment requirements and date deadlines to
file motions, depositions, and responses. He contends that he
met all of the requirements of the initial scheduling order. He
states that he was not given the required 10-day notice of a
summary judgment hearing.
The district court had no duty to inform Weir that summary
judgment could be granted if he did not respond to the
defendant’s motion for summary judgment. See Martin v. Harrison
County Jail, 975 F.2d 192. 193 (5th Cir. 1992)(“[P]articularized
additional notice of the potential consequences of a summary
judgment motion and the right to submit opposing affidavits need
not be afforded a pro se litigant.”). Further, although it was
not timely filed, the district court did consider Weir’s
response.
Weir argues that the district court should have allowed him
the opportunity to conduct discovery before granting summary
judgment. None of the requested discovery would affect the
conclusion that Tramel acted reasonably under the circumstances
and was entitled to summary judgment. The requested discovery
does not bear on the critical fact that Weir, for whatever
reason, failed to raise and to show his hands to Tramel as
ordered. The district court did not abuse its discretion in
No. 99-10788
-4-
denying Tramel’s motion for discovery. Richardson v. Henry, 902
F.2d 414, 417 (5th Cir. 1990).
Weir argues that the district court should have allowed him
to amend his complaint to add a Fourth Amendment claim. In his
more definite statement, Weir characterized his constitutional
claim for the excessive use of force during arrest as arising
under the Due Process Clause of the Fifth Amendment and the Cruel
and Unusual Punishment Clause of the Eighth Amendment. The law
is clear that such claims arise under the Fourth Amendment.
Graham v. Connor, 490 U.S. 386, 395 (1989). Weir’s
characterization of his claim was irrelevant to the district
court’s analysis, which properly used the reasonableness standard
required under the Fourth Amendment as argued in Tramel’s motion
for summary judgment. An amendment to Weir’s complaint was
unnecessary.
AFFIRMED.