105 F3d 650 Whisenant v. K Smith

105 F.3d 650

Steven WHISENANT, Plaintiff-Appellant,
David K. SMITH; Edward Murray; Larry W. Huff Man; Henry
Ponton, Defendants-Appellees.

No. 96-7057.

United States Court of Appeals, Fourth Circuit.

Submitted Dec. 19, 1996.
Decided Jan. 6, 1997.

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Chief District Judge. (CA-93-802-R)

Steven Whisenant, Appellant Pro Se.

Susan Campbell Alexander, Assistant Attorney General, Jill Theresa Bowers, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.



Before ERVIN and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.


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Appellant appeals from the district court's orders entering judgment on the jury verdict in his 42 U.S.C. § 1983 (1994) action and denying his motion for judgment as a matter of law. The record does not contain a transcript of the jury trial. Appellant has 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. Local R. 10(c). Appellants proceeding on appeal in forma pauperis are entitled to transcripts at government expense only in certain circumstances. 28 U.S.C. § 753(f) (1994). By failing to produce a transcript or to qualify for the production of a transcript at government expense, Appellant has waived review of the issues on appeal which depend upon the transcript to show error. Powell v. Estelle, 959 F.2d 22, 26 (5th Cir.), cert. denied, 506 U.S. 1025 (1992); Keller v. Prince George's County, 827 F.2d 952, 954 n. 1 (4th Cir.1987). We have reviewed the record before the court and the district court's opinions and find no reversible error. We therefore affirm the district court's order entering judgment on the verdict. We also affirm the district court's order denying Appellant's motion for judgment as a matter of law because the denial of summary judgment does not necessitate a finding of a constitutional violation. See Fed.R.Civ.P. 56. We dispense with oral argument because the facts and legal contentions are adequately presented in the mate rials before the court and argument would not aid the decisional process.