UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-1761

NICKESHIA M. LAWRENCE, in her own right and as parent and 

next friend of R.A., an infant,

Plaintiff - Appellant,

v.

CARILION MEDICAL CENTER, d/b/a Carilion Roanoke Community 

Hospital,

Defendant - Appellee.

Appeal from the United States District Court for the Western 

District of Virginia, at Roanoke. James C. Turk, Senior 

District Judge. (7:08-cv-00108-jct)

Submitted: February 8, 2010 Decided: March 4, 2010

Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

James J. O’Keeffe, IV, S.D. Roberts Moore, Monica T. Monday, 

GENTRY, LOCKE, RAKES & MOORE, Roanoke, Virginia, for Appellant. 

Charles L. Downs, Jr., Robert M. Doherty, WOOTENHART, PLC, 

Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Nickeshia M. Lawrence sued Carilion Medical Center 

d/b/a Carilion Roanoke Community Hospital (“Carilion”), for 

medical malpractice in failing to perform a Caesarian section 

when Lawrence was giving birth to her son. After a five-day 

trial, the jury returned a verdict in favor of Carilion. 

Lawrence appeals the district court’s entry of judgment, 

claiming that the court erred when it rejected her Batson v. 

Kentucky, 476 U.S. 79 (1986), challenge to Carilion’s peremptory 

strike of an African-American juror.1

As the Supreme Court held in Batson, the use of a 

peremptory challenge for a racially discriminatory purpose 

offends the Equal Protection Clause. Id. at 89. We give “great 

deference” to the trial court’s findings as to whether a Batson

violation occurred, and we review the district court’s findings 

for clear error. Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 

1995).

 We affirm. 

A three-step process is used to analyze a Batson

claim:

First, the defendant must make a prima facie showing 

that the prosecutor has exercised peremptory 

challenges on the basis of race. Second, if the 

 1 In Edmonson v. Leesville Concrete Co., 500 U.S. 614 

(1991), the Supreme Court extended the Batson rule to civil 

cases. 
3

requisite showing has been made, the burden shifts to 

the prosecutor to articulate a race-neutral 

explanation for striking the jurors in question. 

Finally, the trial court must determine whether the 

defendant has carried his burden of proving purposeful 

discrimination.

Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (citations 

omitted). When conducting this analysis, “the decisive question 

[is] whether counsel’s race-neutral explanation . . . should be 

believed.” Id. at 365.

Here, Carilion’s counsel stated that he struck the 

Africian-American juror because she had had a Caesarian section 

and he wanted to avoid jurors with this characteristic. 

Carilion’s counsel also struck two other white jurors who had 

undergone Caesarian sections. By articulating a race-neutral 

reason for the strike, Carilion satisfied its burden at the 

second step of the analysis. 

At the third step, the burden shifted to Lawrence to 

prove that the explanation given was “a pretext for 

discrimination.” United States v. Farrior, 535 F.3d 210, 221 

(4th Cir. 2008), cert. denied, 129 S. Ct. 743 (2008). The party 

must “show both that [counsel’s stated reasons for the strike] 

were merely pretextual and that race was the real reason for the 

strike.” United States v. McMillon, 14 F.3d 948, 953 (4th Cir. 

1994). In making this showing, the party “may rely on all 

relevant circumstances to raise an inference of purposeful 
4

discrimination.” Miller-El v. Dretke, 545 U.S. 231, 240 (2005)

(internal citation and quotation marks omitted).

Here, Lawrence did not challenge Carilion’s raceneutral explanation for striking the African-American juror. 

The failure to argue pretext after the challenged strike has 

been explained constitutes a waiver of the initial Batson

challenge. See Davis v. Baltimore Gas & Elec. Co., 160 F.3d 

1023, 1027 (4th Cir. 1998). Even if there were no waiver, 

Lawrence failed to establish that race was the actual reason 

Carilion’s counsel struck the African-American juror.2

Because the district court did not clearly err in 

rejecting Lawrence’s Batson challenge, we affirm. We dispense 

with oral argument because the facts and legal contentions are 

adequately presented in the materials before the court and 

argument would not aid the decisional process. 

AFFIRMED

 2 Lawrence points out that one white juror who had had two 

Caesarian sections was seated on the jury. Her procedures 

however, occurred some twenty years prior to the trial. Because 

each party was limited to three peremptory strikes, we find it 

entirely reasonable that Carilion’s counsel chose to leave on 

the jury the woman whose Caesarian sections had occurred so 

remotely. See 28 U.S.C. § 1870 (2006).