S. Shane Smith v. THEODIS BECK, Secretary of Correction, North Carolina Department of Corrections,…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6096
S. SHANE SMITH,
Plaintiff - Appellant,
v.
THEODIS BECK, Secretary of Correction, North Carolina
Department of Corrections, sued in his individual and
official capacity; BOYD BENNETT, Director of Prisons, North
Carolina Department of Corrections, sued in his individual
and official capacity; STEVE BAILEY, Superintendent,
Western Region Director, North Carolina Department of
Corrections, sued in his individual and official capacity;
ROGER MOON, Western Region Operations Manager, North
Carolina Department of Corrections, sued in his individual
and official capacity; DOUG MITCHELL, Superintendent
(Retired), Craggy Correctional Center, North Carolina
Department of Corrections, sued in his individual and
official capacity; LEWIS SMITH, Lieutenant, Albemarle
Correctional Institution, North Carolina Department of
Corrections, sued in his individual and official capacity;
EDITH POPE, Assistant Superintendent (former), Craggy
Correctional Center, North Carolina Department of
Corrections, sued in her individual and official capacity;
GEORGE POPE, sued in his individual capacity; WANDA GORE,
individually and in her official capacity as Unit Manager
for the Albemarle Correctional Institution; LARRY LANIER,
individually and in his official capacity as Assistant Unit
Manager for the Albemarle Correctional Institution,
Defendants - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cv-00166-TDS-LPA)

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Submitted: June 26, 2014 Decided: July 1, 2014
Before MOTZ and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
S. Shane Smith, Appellant Pro Se. Yvonne Bulluck Ricci,
Assistant Attorney General, Raleigh, North Carolina; Edith Pope,
Asheville, North Carolina; George Pope, Asheville, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
S. Shane Smith appeals the district court’s entry of
judgment in accordance with the jury’s verdict at trial, its
pre-verdict ruling at trial under Fed. R. Civ. P. 50, and its
April 18, 2012 order affirming the magistrate judge’s order
denying his motion to strike and adopting the magistrate judge’s
recommendation to grant the summary judgment motion filed by
Defendants Beck, Bennett, Bailey, Moon, Mitchell, Smith, Gore,
and Lanier (“the moving Defendants”) in his civil rights action
alleging claims under 42 U.S.C. § 1983 (2012) and North Carolina
law. On appeal, Smith challenges the district court’s grant of
summary judgment to the moving Defendants on his claims against
them under the Eighth Amendment and for retaliation and its
ruling denying his motion to strike. We have reviewed the
record with respect to these challenges and find no reversible
error. Accordingly, we affirm for the reasons stated by the
district court. Smith v. Beck, No. 1:08-cv-00166-TDS-LPA
(M.D.N.C. Apr. 18, 2012 & Dec. 19, 2013).
Smith also challenges the district court’s ruling at
trial on the Rule 50 motion. Smith, however, has not produced a
transcript of the trial. The appellant bears the burden of
including in the record on appeal a transcript of all parts of
the proceedings material to the issues raised on appeal.
Fed. R. App. P. 10(b); 4th Cir. R. 10(c)(1). Although an

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appellant proceeding on appeal in forma pauperis may obtain a
transcript at government expense in certain limited
circumstances, see 28 U.S.C. § 753(f) (2012), Smith paid the
appellate filing fee and does not seek production of the
transcript of the trial based on any inability to pay for it.
By failing to produce the transcript or to qualify for the
production of the transcript at government expense, Smith has
waived review of this issue, which depends on the transcript to
show error. Powell v. Estelle, 959 F.2d 22, 26 (5th Cir. 1992)
(per curiam); Keller v. Prince George’s Cnty., 827 F.2d 952, 954
n.1 (4th Cir. 1987).
Accordingly, we affirm the district court’s judgment.
We deny Smith’s motion to appoint counsel and dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

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