UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

(1986), challenge to Carilion’s peremptory

strike of an African-American juror. 1                 We affirm.

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

peremptory       challenge      for   a   racially          discriminatory       purpose

offends the Equal Protection Clause.                   

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, 

, 421 (4th Cir.

1995).

             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., 

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



                                            2
      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, 

, 358-59 (1991) (citations

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

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

believed.”          

     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, 

, 221

(4th Cir. 2008), cert. denied, 

(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, 

, 953 (4th Cir.

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

relevant       circumstances         to   raise      an    inference      of   purposeful


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discrimination.”          Miller-El v. Dretke, 

, 240 (2005)

(internal citation and quotation marks omitted).

               Here,     Lawrence    did       not    challenge         Carilion’s    race-

neutral      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., 

, 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).



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