S. Shane Smith v. Theodis Beck

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999304034-2] Originating case number: 1:08-cv-00166-TDS-LPA Copies to all parties and the district court/agency. [999386872].. [14-6096]

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UNPUBLISHED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:

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June 26, 2014

Before MOTZ and
Circuit Judge.

GREGORY,

Decided:

Circuit

Judges,

and

July 1, 2014

DAVIS,

Senior

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

ruling

the

denying

Eighth
his

Amendment

motion

to

and

for

strike.

retaliation

We

have

and

its

reviewed

the

record with respect to these challenges and find no reversible
error.
district

Accordingly, we affirm for the reasons stated by the
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.
transcript of the trial.

Smith, however, has not produced a
The appellant bears the burden of

including in the record on appeal a transcript of all parts of
the

proceedings

Fed. R.

App.

P.

material
10(b);

to

4th

the
Cir.
3

issues
R.

raised

10(c)(1).

on

appeal.

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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