                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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