UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-1837

DON MCKINNEY,

Plaintiff - Appellant,

versus

DON EARLS,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (CA-03-153-2)

Submitted: January 27, 2005 Decided: February 16, 2005

Before LUTTIG and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Don McKinney, Appellant Pro Se. Jeffrey Allan Sturgill, STURGILL, MULLINS & KENNEDY, Wise, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Don McKinney appeals the district court’s order

dismissing his civil action for failure to state a claim upon which

relief could be granted. We have reviewed the record and find no

reversible error. Accordingly, we affirm on the reasoning of the

district court. See McKinney v. Earls, No. CA-03-153-2 (W.D. Va.

June 26, 2004). We deny McKinney’s motion for appointment of

counsel. 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

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