                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-2157


GERARDO GRANADOS AYALA,

                Plaintiff – Appellant,

           v.

J. W. WOLFE, II; LEXINGTON POLICE DEPARTMENT,

                Defendants – Appellees.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cv-00624-CCE-LPA)


Argued:   September 18, 2013            Decided:   November 13, 2013


Before DAVIS, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Davis and Judge Diaz joined.


Eugene Ernest Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant.      Jack M. Strauch, STRAUCH
FITZGERALD & GREEN, PC, Winston-Salem, North Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:

        In the dark of night near the scene of an armed robbery,

Plaintiff Gerardo Granados Ayala disregarded a police officer’s

command       to   place    his    hands   on     the   hood    of    a   patrol   car.

Instead, without saying a word, Ayala took one hand from the

hood, reached into the waistband of his pants, and removed a

gun.     In response, the officer, Defendant J.W. Wolfe, II, shot

Ayala.    Under the circumstances of this case, the district court

did not err in ruling that Wolfe’s application of deadly force

was not excessive, and that Ayala’s Section 1983 and related

claims must fail.            Accordingly, we affirm the grant of summary

judgment in Defendants’ favor.



                                           I.

        In July 2010, at 1:45 a.m., Wolfe, an officer with the

Lexington,         North   Carolina   Police       Department,       responded     to   a

report that three armed men had robbed a restaurant.                       The report

indicated that the men fled on foot.                    Wolfe canvassed the area

near the restaurant and saw Ayala walking just a few blocks

away.     Wolfe stopped his patrol car and instructed Ayala to put

his hands on the hood of the patrol car.                       After Ayala complied

with    the    order,      Wolfe   frisked       him.   Upon     feeling    a   gun     in

Ayala’s waistband, Wolfe backed away from Ayala, moved behind

his patrol car, and drew his service weapon.                         Without saying a

                                             2
word to the officer, Ayala moved his right hand from the patrol

car to his waistband and removed the gun.

       In response, Wolfe shot Ayala several times.                  The first

bullet hit Ayala’s right hand and knocked the gun to the ground.1

Wolfe nevertheless continued to shoot Ayala in the torso until

he fell.      Ayala lost consciousness after hitting the ground and

does not remember any shots after he fell.                 But despite being

unconscious, Ayala “believe[s]” that Wolfe shot him in his back

while he lay on the ground and that that bullet paralyzed him

from the waist down.        J.A. 204.

       The   scene    of   the   shooting   was,   in   Ayala’s   words,   “very

dark[.]”      J.A. 77.     Wolfe declared that the “very bright” flash

from his gun after he shot “further hindered” his ability to

see.       J.A. 73.    Wolfe did not know that Ayala dropped his gun

after the first shot, but stated that he immediately stopped

shooting once Ayala fell to the ground.             Ayala testified that he

had no idea what Wolfe could (or could not) see after the first

shot, that he did not know whether his gun made a sound when it

fell to the ground, and that he did not tell Wolfe—or otherwise

       1
       In reviewing the district court’s summary judgment ruling,
“courts are required to view the facts and draw reasonable
inferences in the light most favorable to the party opposing the
[summary judgment] motion.” Scott v. Harris, 550 U.S. 372, 378
(2007) (alteration in original) (internal quotation marks
omitted).     In qualified immunity cases, this requirement
“usually means adopting . . . the plaintiff’s version of the
facts.” Id.


                                        3
indicate to Wolfe—that he no longer held the gun.                  Two witnesses

declared that they heard a series of gunshots in the middle of

the   night,   a   pause     of   four    or    five    seconds,    and    then    an

additional gunshot.          In Ayala’s words, the time between Wolfe’s

shots was “really fast.”          J.A. 88-89.

      In August 2011, Ayala filed this lawsuit against Wolfe in

his   individual      capacity     and       against    the    Lexington     Police

Department, alleging Section 1983 claims and several state law

claims.2     After the close of discovery and upon learning that

Defendants intended to move for summary judgment, Ayala moved to

amend his complaint.

      The   district   court      granted      the   summary    judgment    motion,

determining    that    the    evidence    was    insufficient      to     show   that

Wolfe used excessive force in shooting Ayala.                   In addition, the

district court denied Ayala’s motion to amend the complaint.

Ayala appealed.



                                         II.

      With his first argument, Ayala contends that the district

court erred by granting summary judgment to Defendants on his

Section     1983   claims      because       Wolfe     used    unconstitutionally

      2
       On appeal, Ayala does “not persist in his allegation that
[the Lexington Police Department] committed a Monell [policy and
custom] violation as alleged in Count II of his original
Complaint.” Appellant’s Br. at 20 n.1.


                                         4
excessive force by (1) initially shooting Ayala; (2) continuing

to shoot Ayala after he dropped his gun; and (3) shooting Ayala

after he fell to the ground.3                   We review de novo the district

court’s grant of summary judgment, viewing all facts and drawing

reasonable inferences in Ayala’s favor.                    See Henry v. Purnell,

652 F.3d 524, 531 (4th Cir.) (en banc), cert. denied, 132 S. Ct.

781   (2011).          Summary    judgment       is   appropriate    only    if   “‘no

material facts are disputed and the moving party is entitled to

judgment as a matter of law.’”                  Id. (quoting Ausherman v. Bank

of Am. Corp., 352 F.3d 896, 899 (4th Cir. 2003)).



                                          A.

      “The       Fourth       Amendment’s        prohibition    on    unreasonable

seizures includes the right to be free of ‘seizures effectuated

by excessive force.’”             Id. (quoting Schultz v. Braga, 455 F.3d

470, 476 (4th Cir. 2006)).               Courts analyze whether an officer

has     used     excessive       force   under        a   standard   of     objective

reasonableness.         Id.      The reasonableness of a particular use of

force     must    be    judged    from   the      perspective   of   a    reasonable




      3
       Ayala also argues that the district court erred by not
addressing his allegation that Wolfe violated his Fourth
Amendment rights by unlawfully stopping him. However, Ayala did
not raise this claim until his rejected motion to amend. Thus,
this claim is not properly before us.


                                            5
officer on the scene rather than with 20/20 hindsight.                               Anderson

v. Russell, 247 F.3d 125, 129 (4th Cir. 2001).

     “The intrusiveness of a seizure by means of deadly force is

unmatched.”            Tennessee      v.    Garner,       471     U.S.     1,    9    (1985).

Therefore, a police officer may use deadly force only when he

has “probable cause to believe that the suspect poses a threat

of serious physical harm, either to the officer or to others[.]”

Id. at 11.           When a suspect confronts an officer with a weapon,

we have deemed the officer’s use of deadly force reasonable.

See Elliott v. Leavitt, 99 F.3d 640, 642-43 (4th Cir. 1996)

(holding        that     police       officers’          actions       were     objectively

reasonable when they shot a man who pointed a handgun at them

after they had arrested him).                 As we have stated, “[n]o citizen

can fairly expect to draw a gun on police without risking tragic

consequences.”          Id. at 644.



                                             B.

        With    this    legal   framework          in    mind,    we    turn    to    Ayala’s

arguments       in    this   case.         Ayala       first    contends      that    Wolfe’s

initial decision to shoot him constituted excessive force.                                   In

particular,          Ayala   claims    that       he    never    threatened          Wolfe   or

pointed his gun at Wolfe before Wolfe shot him.                               But even with

the benefit of every reasonable inference, a reasonable officer

would    have    had     probable     cause       to    fear    serious       physical   harm

                                              6
justifying the use of deadly force under the circumstances of

this case.

      Crucially, Wolfe instructed Ayala to place both hands on

the hood of the patrol car.                 Ayala testified that he understood

Wolfe’s     command.        Yet    without       saying      a    word       to   explain     his

actions, Ayala took his right hand off the hood to remove the

gun in his waistband.              On these facts, Wolfe acted objectively

reasonably in concluding that Ayala posed a threat of serious

physical harm warranting the use of deadly force at the time of

the   first      shot.       Cf.     Elliott,      99   F.3d         at     642-44     (finding

officers’     use     of    deadly    force       against        a     handcuffed      suspect

sitting in a patrol car reasonable because the suspect managed

to point a gun at them).



                                             C.

      The    initial       decision    to    shoot      aside,            Ayala   argues     that

because he dropped his gun after the first shot, Wolfe used

excessive force by continuing to fire at him.                                     Ayala relies

heavily on Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005),

which     held    that      “force    justified         at       the       beginning    of    an

encounter        is   not     justified          even     seconds            later     if    the

justification for the initial force has been eliminated.”                                    Id.

at 481.     The problem for Ayala is that “the reasonableness of an

officer’s        actions     is    determined        based           on     the    information

                                             7
possessed by the officer at the moment that force is employed.”

Id. (citing Elliott, 99 F.3d at 643).           And Ayala has proffered

no evidence that Wolfe should have known that he had dropped his

gun after the first shot, i.e., that the justification for using

deadly force had been “eliminated” after the first shot.                    See

id.

      Ayala testified that he had no idea what Wolfe could see

after firing the first shot but confirmed that it was “very

dark[.]”     J.A. 77.   Ayala further testified that he did not know

whether his gun made a sound when it fell to the ground, and he

never     informed   Wolfe     that   he   no   longer     held     the   gun.

Additionally, Ayala testified that the time between the first

shot and the “other ones” was really fast, J.A. 89, and that he

did not fall down until after the fifth shot.            J.A. 92.

        Wolfe testified that he could not see whether Ayala had

dropped his gun because of the darkness and the muzzle flash

from his gun.      Instead, he focused on the center of Ayala’s body

when he fired his weapon, and he “never heard any sound that

would have suggested that Mr. Ayala had dropped his gun.”                 J.A.

74.

      In essence, Ayala proffered no evidence that a reasonable

officer under the circumstances could have known that the threat

justifying the use of deadly force—that is, Ayala’s grabbing his

gun   from   his   waistband   in   contravention   of   Wolfe’s    order   to

                                      8
place     his       hands    on   the       hood       of    the     patrol       car—had     been

eliminated after the first shot, even assuming (as we must on

summary judgment) that it was.                         Cf. Estate of Rodgers ex rel.

Rodgers       v.    Smith,     188     F.    App’x          175,    183    (4th     Cir.    2006)

(unpublished decision) (concluding that even though the suspect

dropped       his    firearm      as    he    fell,          the    police     officer      acted

reasonably in continuing to shoot because nothing in the record

reflected that the officer knew that the suspect was no longer a

threat).



                                               D.

      Ayala        also     challenges       the       district      court’s      determination

that Wolfe did not use excessive force by firing the final shot.

Ayala contends that Wolfe shot him in the back while he lay on

the ground on his stomach and four to five seconds after the

previous shots.             Again, Ayala has failed to point to any record

evidence to support this contention.

        Ayala      admits     that     he    was       unconscious        after    he   hit   the

ground and thus could not competently testify that he was shot

after he fell.

        Nor   could       Ayala’s      experts         testify      that    Wolfe     fired   the

final, paralyzing shot after Ayala had fallen to the ground.

One     expert      testified        that     he       could       not    determine     “whether

[Ayala] was lying down, whether he was standing, or . . . what

                                                   9
position the shooter was [in]” when Wolfe fired the final shot.

J.A. 153.       The other expert testified that “[Ayala] could have

sustained that shot that rendered him paraplegic in a standing

position, as he was going down, or after he was on the ground.

. . . [A]ny one of these [is] possible . . . .”                      J.A. 297.

        Ayala relies on two witnesses who testified that they heard

gunshots       and,    after    a     pause    of    four    or   five    seconds,     an

additional shot.         But these witnesses did not see the shooting

or   provide     any    information      beyond       the   pause    before    the    last

shot.     Their testimony thus has little bearing on the question

of whether Wolfe fired the final shot after Ayala fell to the

ground    or    after    Wolfe       could    have    reasonably     determined       that

Ayala was no longer a threat.

        Wolfe stated that “[a]t no time did I ever shoot at Mr.

Ayala after he fell to the ground or otherwise use any type of

force against Mr. Ayala after he fell to the ground.”                          J.A. 74.

Ayala has failed to proffer any evidence to controvert Wolfe’s

testimony.        And the district court properly rejected Ayala’s

unsupported speculation about what happened after he had fallen.

        In sum, Ayala has pointed to no evidence that Wolfe used

excessive      force    at     the   time     of    the   first   shot,   upon    firing

additional shots, or at the time of the last shot.                        The district

court     therefore      properly       granted       summary       judgment     to   the

Defendants on Ayala’s Section 1983 claims.

                                              10
                                  III.

     Ayala also asserted several state law claims against Wolfe,

including battery, negligence, gross negligence and intentional

infliction of emotional distress.            In North Carolina, a public

officer is entitled to immunity “unless it is alleged and proved

that his act, or failure to act, was corrupt or malicious, or

that he acted outside of and beyond the scope of his duties.”

Showalter v. N.C. Dep’t of Crime Control & Pub. Safety, 183 N.C.

App. 132, 136, 643 S.E.2d 649, 652 (2007); see also Turner v.

City of Greenville, 197 N.C. App. 562, 566, 677 S.E.2d 480, 483

(2009) (stating that the public immunity doctrine protects a

public official from individual liability for negligence as long

as the official “lawfully exercises the judgment and discretion

with which he is invested by virtue of his office, keeps within

the scope of his official authority, and acts without malice or

corruption” (quoting Bailey v. State, 330 N.C. 227, 245, 412

S.E.2d 295, 306 (1991))).

     Ayala contends that the district court erred by granting

Defendants’ motion for summary judgment on his state law claims

arising   from   Wolfe’s   actions.        Here,   Ayala   has   not   overcome

Wolfe’s public officer immunity under North Carolina state law.

As explained above, the record evidence necessarily leads to the

conclusion   that   Wolfe’s    actions      were    objectively    reasonable

under the circumstances.       Thus, Ayala has not shown that Wolfe

                                      11
acted    corruptly,      maliciously,       or    outside      the     scope    of    his

duties.



                                          IV.

        With his last argument on appeal, Ayala contends that the

district court abused its discretion by denying his motion to

amend his complaint.            While we review such a decision only for

abuse    of    discretion,      “‘leave    to    amend    a    pleading      should    be

denied    only    when   the    amendment       would    be    prejudicial       to   the

opposing party, there has been bad faith on the part of the

moving party, or the amendment would be futile.’”                              Balas v.

Huntington Ingalls Indus., Inc., 711 F.3d 401, 409 (4th Cir.

2013) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 242

(4th Cir. 1999)).

        Ayala initially sought to amend his complaint to add: (1) a

claim that the initial stop violated the Fourth Amendment and

constituted false imprisonment, and (2) state law claims against

the     Lexington      Police     Department      in     its    official       capacity

alleging      waiver   of   sovereign     immunity       based    on    an   insurance

policy.       Ayala later sought to add the City of Lexington as an

additional      defendant.        The   district       court   did     not   abuse    its

discretion in barring Ayala from belatedly asserting new claims

and adding a new party.             Much time had passed, discovery had

concluded,       and   granting    Ayala’s       late    motion      would     prejudice

                                          12
Defendants.        See Mayfield v. Nat’l Ass’n for Stock Car Auto

Racing, Inc., 674 F.3d 369, 379-80 (4th Cir. 2012) (affirming

the district court’s denial of the appellants’ motion to amend

the complaint to add new allegations and causes of action after

a significant amount of discovery had been conducted because of

the    resulting    prejudice      to     the     appellees).           Further,   the

district court did not abuse its discretion in determining that

the    proposed    state    law   claims       against     the    Lexington    Police

Department    would        be   futile,        given    the      lack   of   evidence

supporting Ayala’s excessive force claim.



                                          V.

       In sum, the district court properly concluded that Wolfe

did not use excessive force when he shot Ayala.                         We reiterate

our admonition that “[n]o citizen can fairly expect to draw a

gun on police without risking tragic consequences.”                       Elliott, 99

F.3d at 644.        Yet, this case surely begs the questions of why

the officer did not remove Ayala’s gun when he discovered it

during his frisk or communicate to Ayala after discovering the

gun.      Perhaps    those      simple    steps        could   have     obviated   the

(objectively reasonably perceived) need to fire even one shot at

Ayala.    However, this case turns not on what could have been,

but on the objective reasonableness of the force applied under

the circumstances as they played out.                    And under the facts of

                                          13
this   case,   Wolfe’s   use   of    deadly   force   was   objectively

reasonable.    Accordingly, the district court’s decision is

                                                              AFFIRMED.




                                    14
