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

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(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,

(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,

. 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,

(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,

(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.