Echols v. CSX-Transportation, Inc.

Filing 43

MEMORANDUM OPINION. See for complete details. Signed by District Judge Robert E. Payne on 06/12/2017. (mailed copy to pro se Plaintiff) (nbrow)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

ROY FRANKLIN ECHOLS, JR.,
Plaintiff,
v.

Civil Action No. 3:16CV294

CSX TRANSPORTATION, INC.
Defendant.
MEMORANDUM OPINION

Roy Franklin Echols,
se and in forma pauperis,
Federal Employers'

Jr.,

a Virginia inmate proceeding pro

has filed this action pursuant to the

Liability Act

("FELA"),

45

U.S.C.

§§

51 et

seq . 1

The matter is before the Court on the Motion to Dismiss

filed

by

No. 25)
1

Defendant

CSX

Transportation,

Echols' s Motion to Leave and Amend

Inc.

("CSX")

("Motion to Amend,"

The Act provides, in pertinent part:

Every common carrier by railroad while engaging
in commerce between any of the several States or
Territories,
or
between
any
of
the
States
and
Terri tori es, or between the District of Columbia and
any of the States or Territories, or between the
District
of
Columbia or any of
the
States
or
Territories and any foreign nation or nations, shall
be liable in damages to any person suffering injury
while he is employed by such carrier in such commerce
for such injury or death resulting in whole or
in part from the negligence of any of the officers,
agents, or employees of such carrier, or by reason of
any defect or insufficiency, due to its negligence, in
its
cars,
engines,
appliances,
machinery,
truck,
roadbed, works, boats, wharves, or other equipment.
45

u.s.c.

§

51.

(ECF

ECF No.
No.

3 6) ;

3 8) .

and CSX' s

Second Motion to Stay Proceedings

For the reasons stated below,

barred by the statute of limitations,
Motion to Dismiss,

( ECF

because the action is

the Court will grant the

deny the Motion to Amend,

and deny as moot

the Second Motion to Stay Proceedings.

I.

"A

motion

sufficiency
contests

of

STANDARD FOR MOTION TO DISMISS

to
a

dismiss

under

complaint;

surrounding the

importantly,

facts,

applicability of defenses.ff
980 F.2d 943,

952

Arthur R. Miller,

tests

12 (b) (6)

Rule

it

does

the merits of a

not

the

resolve

claim,

or the

Republican Party of N.C. v. Martin,

(4th Cir. 1992)

(citing SA Charles A. Wright &

Federal Practice and Procedure§ 1356

(1990)).

In considering a motion to dismiss for failure to state a claim,
a plaintiff's well-pleaded allegations are taken as true and the
complaint

is

plaintiff.
Cir.

1993) ;

applies

viewed

the

light

see also Martin,
to

factual

considering

a

motion

identifying

pleadings
are

not

that,

the

7 F.3d 1130, 1134

(4th

980 F. 2d at

allegations,

to

to

most

Mylan Labs., Inc. v. Matkari,

only

conclusions,

in

dismiss

entitled

to

952.

however,

can

because

choose

they

the

are

This principle
and
to
no

assumption

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

2

favorable

"a

court

begin
more
of

by
than

truth.ff

The

Federal

Rules

of

Civil

Procedure

"require[]

only

'a

short and plain statement of the claim showing that the pleader
is

entitled

to

relief, '

in

notice of what the
rests.'"

order

Corp.

v.

Twombly,

(second alteration in original)
41,

47

with

complaints

"formulaic
Id.

(1957)).

containing

recitation

level,"

"to

id.

"plausible

raise

on

its

"conceivable."

reasonable

survive
must
or]
761,

her claim."
765

for

that

Iqbal,

544,

of

relief

a

(2007)

Gibson,

2003)

(4th Cir.

E.I.

of

or

2002);

270,

(4th Cir. 2002)).

at

above

the

a

claim

rather

570,

speculative
that

than

is

merely

facial plausibility when the

that allows
defendant

556 U.S.

at

state

the court to draw
is

678

liable

for

claim or complaint to

a

claim,

the

Iodice v. United States,
Lastly,

the

(citing Bell Atl.

DuPont de Nemours & Co.,

3

a

action."

plaintiff

while

the

Court

[his

324 F.3d

(citing Dickson v. Microsoft Corp.,

213

355

standard

conclusions"
cause

stating

the

to

555

sufficient to state all the elements of

F.3d 193,
281

and

In order for a

failure

Bass v.

(4th Cir.

id.

content

at 556).

"allege facts

to

"A claim has

factual

dismissal

fair

a plaintiff must allege facts

omitted),

inference

550 U.S.

defendant

satisfy this

"labels

elements

right

face,"

misconduct alleged."
Corp.,

only

the

550 U.S.

cannot

Instead,

a

Id.

the

of

(citation

plaintiff pleads

the

(quoting Conley v.

Plaintiffs

(citations omitted) .

sufficient

'give

claim is and the grounds upon which it

Bell Atl.

U.S.

to

309

289 F.3d
liberally

construes
1151
and

pro

se

(4th Cir.
develop,

that

the

1997)

1978),
sua

inmate

complaint.

complaints,

Leeke,

574

F.2d

1147,

it will not act as the inmate's advocate

sponte,
failed

statutory

to

See Brock v.

(Luttig, J.,

Gordon v.

and

clearly

raise

Carroll,

constitutional
on

the

107 F.3d 241,

face
243

claims
of

his

(4th Cir.

concurring); Beaudett v. City of Hampton,

775

F.2d 1274, 1278 (4th Cir. 1985).

II.

Echols

was

SUMMARY OF ALLEGATIONS

employed by CSX' s

Engineering Department

as

a

trackman from April of 1981 until September of 1997, when he was
arrested on felony charges.
his employment,

(Compl.

~

5,

ECF No.

1.)

2

During

Echols "was constantly exposed to airborne coal

and rock dust while performing his daily assigned tasks .
(Id.

~

6.)

II

Echols states:

On or about September of 2012, Plaintiff began to
experience serious respiratory complications that got
progressively worse as the days went on.
Prior to
this time Plaintiff was in good health.
These
difficulties
worried
him
intensely.
Plaintiff
discovered that black lung, silicosis and pulmonary
disease can cause these respiratory conditions, since
his only possible exposure to coal and rock dust was
during the period of his employment with the railroad.
On October 7th, 2012,
Plaintiff contacted the CSX
headquarters located at 500 Water Street Jacksonville,
Florida 32202 in an effort to obtain the name and

2

When needed, the Court utilizes the pagination assigned to
Echols's submissions by the CM / ECF docketing system.
The Court
corrects
the
spelling,
punctuation,
and capitalization
in
quotations from Echols's submissions.
4

address of the Union that represented him during the
period of his employment with the railroad .
After diligently researching the symptoms and
causes of black lung, silicosis or other pulmonary
lung disease, Plaintiff came to the belief that he
contracted this occupational disease and that the
accumulated effects of the deleterious substances,
coal and rock dust, began to manifest itself in his
respiratory complications .
CSX records clearly show
that the railroad had conducted silicosis testing on
its employ ees including Plaintiff in the mid-1990 [s]
without notif y ing Plaintiff of the purpose for the
testing or any positive results.
On October 2 8, 2012
and January 15, 2013, Plaintiff contacted his Union
representati v e b y U . S. mail in an effort to obtain the
results of silicosis testing conducted b y CSX, to no
avail.
On Jul y l 5 t , 2013, Plaintiff directl y contacted
CSX headquarters b y U.S . mail to obtain the results of
silicosis
lung testing during
the period of
his
employment .
(Id.

~~

7-8

(paragraph numbers omitted).)

medical department at Nottowa y
Echols

undergo

Subsequently ,
Pulmonary

diagnostic

Echols

Lung

" was

Disorder

On July 25,

2013,

the

Correctional Center ordered that
lung

diagnosed with a
caused

by

(Id.

testing.

railroad

Chronic
dust

9.)

Obstructiv e
conditions."

(Id . )
Echols's Complaint raises the follo wing claims for relief:
Claim One:

"Violation of Federal Safety Appliance Act
45 U.S.C.S. 1 - 16 and Occupational Safety and
Health Act subse c tion 1910.134 regulations."
(Id . at 7.) 3

3

The Federal Safety Appliance Act ( "FSAA")
"imposes a
number of safety requirements on railroads."
Phillips v . CSX
Transp . , Inc., 190 F . 3d 285, 288 (4 th Cir. 1999).
Howev er,
" [t] he FSAA does not create an independent cause of action for
those injured because of a v iolation of the Act."
Id. (citing
Crane v . Cedar Rapids & Iowa City Ry. Co., 3 9 5 U.S. 164, 166
(1969)) .
Instead, "for railroad employ ees injured because of a
5

Claim Two:

"Negligen [t]
exposure
to
hazardous coal and rock dust."

Claim Three:

"Emotional
distress
(Id. at 14.)

Echols

seeks

$800,000.00

and

harmful
and
(Id. at 9.)

mental

anguish."

in compensatory and punitive

damages.

(Id.atl6.)
III. ANALYSIS

CSX moves

to

dismiss

Echols' s

Complaint

applicable statute of limitations.
7- 9 ,

ECF No .

26 . )

(Mem.

CSX also opposes

as

Supp.

Echols' s

barred by
Mot.

the

Dismiss 1,

Motion to Amend,

asserting that the Proposed Amended Complaint is futile because
it would still be barred by the

statute

Opp.

As discussed below,

Mot.

Amend 1,

ECF No.

37.)

agrees

that

Echols's

Complaint

agrees

that

Echols's

Motion

is

to

of

limitations .

untimely.

Amend

is

The

futile,

(Br.

the Court
Court

as

also

well

as

brought in bad faith.

FSAA violation, FELA provides the cause of action.
Id. (citing
Crane, 395 U.S . at 166).
Likewise, Occupational Safety and
Heal th Act
("OSHA")
regulations
"prov ide
e v idence
of
the
standard of care e x acted of employers, but they neither create
an implied cause of action nor establish negligence per se.
Albrecht v. Baltimore & Ohio R.R. Co., 808 F.2d 329, 332 (4th
Cir. 1987)
(quoting Melerine v . Avondale Shipyards, Inc., 659
F.2d 706,
707
(5th Cir.
1981)).
Echols's claims are not
independent; rather , Echols has a single cause of action under
FELA.
See 45 U.S . C . § 51 (FELA permits a rail wa y employ ee to
recov er for an "injury
resulting
from
[his
employer's] negligence"); Consol. Rail Corp. v . Gottshall, 512
U.S .
532,
550
(1994)
(noting that
"damages
for negligent
infliction of emotional distress are cognizable under FELA").
/1

/1

6

A.

Statute of Limitations Governing FELA Actions

"No

action

shall

commenced within
accrued."

three

u.s.c.

years

from

the

56.

"[T] his

not an affirmative defense;

instead,

§

56

45

maintained

be

is

a

§

condition

precedent

[FELA]

under

day the

cause

statute of

liability'

Johnson v.

Norfolk & W.

*l

(4th Cir.

Co.,

701

Jan.

F.2d

28,

1112,

Ry . Co.,
1993)

1117

recovery

the

No.

under

92-1719,

Cir.

U.S.C.

the

Act.

recovery."

1993 WL 17061,
S.

Pac.

"The

1983))

is

'destroys the

claimant's

(quoting Emmons v.
(5th

action

compliance with 45

to

bars

and

of

limitations

Failure to bring suit within the statutory period
employer's

unless

at

Transp.

burden

is

therefore on the claimant to allege and to prove that his cause
of

action

was

commenced

(quoting Emmons,
Co.,

No.

2015)
the

statute

the

701 F.2d at 1118);

6:13-CV-00056,

(noting

within

that

of

three-year

plaintiff

limitations

as

an

Id.

Norfolk S.

Ry.

(W.D. Va. Jan.

14,

see Cash v.

2015 WL 178065, at *4

"[a]

period."

must

allege

element

of

compliance
his

prima

with
facie

case" under FELA) .
"[A]
does
the

cause of action under FELA for an occupational disease

not

accrue

plaintiff

when

becomes,

injury."

Townley v.

(4th

1989);

Cir.

(1949);

Mix v.

the

see

injury

or

should

Norfolk
Urie

Delaware

&

is

v.

W.

&

inflicted,
have
Ry.

become,
Co.,

Thompson,

Hudson Ry.
7

but

Co.,

887

337
345

rather when

aware

of

his

F.2d 498,

501

U . S.

163,

F.3d 82,

169-70
86

(2d

Cir.
the

2003)

(an action under FELA "accrues when 'the plaintiff in

exercise

of

reasonable

diligence

and the cause of his injury'"
Hosp.,
not

853

F.2d 1078,

"fully

instead,
facts

realize

his

claim

concerning

Missouri

Pac.

(citations

1080

the

his

R.R.

extent

omitted) .

of

when

injury
Co.,

both

the

existence

(quoting Ulrich v. Veterans Admin.

(2d Cir.

accrues

knows

his

he

and

951

1988))).

Moreover,

a

injury"

is

"aware

its

F.2d

A plaintiff need
before

accrual;

of

critical

the

Bealer

causation."
38,

39

(5th

Cir.

plaintiff need not

v.

1991)

receive a

formal medical diagnosis before his cause of action accrues,
the

lack

duty of
that

of

a

formal

diagnosis

exercising due

he did,

Furthermore,

in fact,

"would not

relieve

diligence based upon strong
have an

Mix,

injury."

345

him of

as
his

indications
F.3d at

87.

"knowledge of the specific cause of a work-related

injury is not required to trigger the statute of limitations in
a FELA action.
knows
Matson

or

should know

v.

Burlington

(10th Cir.
discovery
exercise

Rather,

2001)
rule

FELA claim accrues when the plaintiff

that
N.

his

injury

Santa

Fe.

(citing Bealer,
"imposes

reasonable

known injury."

a

on

R.R.,

and

Id . at 1235.

8

merely work-related."
240

F.3d

951 F.2d at 39).

plaintiffs

diligence

is

an

1233,
Overall,

affirmative

investigate

the

1236
the

duty

cause

of

to
a

B.

Echols's Complaint Is Untimely

2016. 4

Echols filed his Complaint on May 10,
his suit to be timely filed,
no

earlier than May 10,

that

Echols's

Specifically,
experience
2012.

FELA

his FELA claims must have accrued

2013.

claims

The

indicates

difficulties worried him intensely."
black

lung,

silicosis

and

respiratory conditions,

before

complications"

Echols

7.)

well

however,

reflects

that

date.

Echols alleges that he began to

respiratory

( Compl.

record,

occurred

in his Complaint,

"serious

In order for

(Id.)

pulmonary

in September of
"[t] hese

that

He "discovered that

disease

can

cause

these

since his only possible exposure to coal

and rock dust was during the period of his employment with the
railroad."

(Id.)

On October 7,

2012,

Echols contacted CSX' s

headquarters to obtain the name and address of his former labor
union.

(Id.)

"After diligently researching the

symptoms

and

causes of black lung,

silicosis or other pulmonary lung disease,

Plaintiff

the

came

occupational
deleterious
itself

in

Subsequently,
4

to

disease

and

substances,
his

belief
that

coal

the
and

The envelope
indicates that it was
Correctional Center on
Court deems this to be
U.S. 266, 276 (1988)

accumulated
rock

dust

2012,

this

contracted

he

effects

began

complications."

respiratory

on October 28,

that

and January 15,

to

of

the

manifest

(Id.
2013,

~

8.)

Echols

in which Echols mailed his Complaint
received in the mailroom at River North
May 10, 2016.
(ECF No. 1-5, at 1.)
The
the filed date.
See Houston v. Lack, 487
9

contacted his union representative

"in an effort to obtain the
(Id.)

results of silicosis testing conducted by CSX."

Echols's Complaint clearly indicates that he knew that his
former

employment

problems

no

was

later

a

potential

than October of

cause

of
The

2012.

his

respiratory

Court

concludes

that Echols's FELA claims accrued, at the latest, by October 28,
2012,

well before May 10,

2013.

See Townley,

887 F.2d at 501

(concluding that plaintiff's FELA action accrued "no later than
1980 when he admitted in his

letters to

suspected

that

from

condition

was

Accordingly,

he

suffered

caused

Echols's

his

by
claims

black
work

are

[the railway]
lung
on

barred

and

that

his

railroad") .

the
by

that he

the

applicable

statute of limitations.
C.

Echols's Motion To Amend
1.

Overview Of Echols's Proposed Amended Complaint

In response,
Echols
Amended

has

in an attempt to cure the issue of timeliness,

filed

a

Motion

to

With

minor

Complaint.

Amend,

along

exceptions,

with

his

Proposed

Echols's

Proposed
In his

Amended Complaint is identical to his initial Complaint.
Proposed Amended Complaint,

Echols

seeks

for relief to $8,000,000.00 in damages.
Echols

also

experience
(Id.

at 3.)

changes

serious

the

date

respiratory

Finally,

he

to

amend his

(ECF No.

alleges

complications

request

36-2, at 16.)

that

he

to

June

began
of

to

2013.

Echols omits that he wrote to his union
10

representative

on October

silicosis testing.

28,

2012,

to

obtain

the

results

of

Specifically, Echols states:

On or about June of 2013 [], Plaintiff began to
experience serious respiratory complications that got
progressively worse as the days went on.
Prior to
this time Plaintiff was in good health.
These
difficulties
worried
him
intensely.
Plaintiff
discovered that black lung, silicosis and pulmonary
disease can cause these respiratory conditions, since
his only possible exposure to coal and rock dust was
during the period of his employment with the railroad.
On October 7th,
2012,
Plaintiff contacted the CSX
headquarters located at 500 Water Street Jacksonville,
Florida 32202 in an effort to obtain the name and
address of the Union that represented him during the
period of his employment with the railroad.
After diligently researching the symptoms and
causes of black lung, silicosis or other pulmonary
lung disease, Plaintiff came to the belief that he
contracted this occupational disease and that the
accumulated effects of the deleterious substances,
coal and rock dust began to manifest itself in his
respiratory complications.
CSX records clearly show
that the railroad had conducted silicosis testing on
its employees including Plaintiff in the mid-1990 [s]
without notifying Plaintiff of the purpose for the
testing or any positive results.
January 15, 2013
Plaintiff contacted his Union representative by U.S.
mail in an effort to obtain the results of silicosis
testing conducted by CSX, to no avail.
On July 1st ,
2013, Plaintiff directly contacted CSX headquarters by
U.S . mail to obtain the results of silicosis lung
testing during the period of his employment.
(Id.

at

3-4

(footnote

omitted).)

Echols's

Proposed

Amended

Complaint merely changes the date on which he contends he began
to experience respiratory problems in order to have his claims
fit within the applicable limitations period.
amendment to the date makes little sense,
is futile.
11

However,

Echols's

is in bad faith,

and

2.

"Under
absent

Discussion of Futility And Bad Faith

Rule

bad

15 (a)

faith,

leave

undue

to

amend

prejudice

to

shall
the

futility of amendment."

United States v.

317

(citations

(4th

Cir.

2000)

be

given

opposing

Pittman,

omitted) .

freely,

party,

or

209 F.3d 314,
For

instance,

"[f] utility is apparent if the proposed amended complaint fails
to

state

a

claim

standards."
471

under

Katyle

(4th Cir.

v.

2011) .

leave to amend,

the

applicable

Penn Nat'l

for

an

repeated

Bank, N.A.,
8,

WL

2017)

"[b]ad

addition,

complaint
after

2011

As explained below,

In

Inc.,

accompanying

637

F.3d 462,
futile

when the applicable statute of limitations bars

No. 3:09CV831,

2011).

Gaming,

and

The Court appropriately denies as

See Ingram v . Buckingham Corr.

the proposed amended complaint.
Ctr.,

rules

No . 2:15CV566,

(citations

Shopping Ctr.,

Inc.,

*1

includes

purpose,

or

(E.D.

Va.

seeking

seeking

leave
v.

2017 WL 1031717, at *2
see

F.R.D.

GSS

379,

to

Wilkins

failures.'"

omitted);
119

at

May

5,

that is the case here.
faith

improper

'pleading

1792460,

Props.,
381

amend

a

to

amend

Wells

Fargo

(E.D. Va. Mar.

Inc.

(M.D.N.C.

v.

Kendale

1988)

("Bad

faith amendments are those which may be abusive or made in order
to secure some ulterior tactical advantage."
&

A.

and

Miller,
1987

(citing 6 C. Wright

Federal Practice and Procedure,

Supp.))) .

Appeals for the

For

example,

the

§

United

Fourth Circuit has held that a
12

1487 n.63
States

(1971

Court

of

plaintiff acted

in bad faith in seeking to amend his complaint to "artificially
inflate

damages

jurisdiction."
(4th Cir.

in

Peamon v.

2014)

order

to

obtain

Verizon Corp.,

Furthermore,

subject

581 F.

matter

App'x 291,

292

"[f]acts in an amended complaint

that are wholly inconsistent with facts alleged in the original
complaint
provide

can be
a

basis

Williamson,
Feb.

1,

improper

indicative

No.

denying

5:15-CV-00045,

2016)
for

for

of

(citations
a

plaintiff

amended complaint[,]

the
leave

plaintiff's
to

faith

omitted) .

While

to

the

and

Cadmus

amend."

2016 WL 929279,

revise

bad

v.

at *19

"it

is

alleged

(W.D. Va.
not

facts

always
in

an

[t]his does not mean, however, that a

plaintiff may fraudulently alter the facts from one complaint to
the next

fl

3.

Id.

(internal citations omitted) .

Echols's Proposed Amended
Faith And Is Futile

In his Motion to Amend,
Complaint

"omitted

several

based his response to."

Echols

errors

(Mot.

to

Amend~

Complaint

contends
which
5.)

Is

that his
the

In

initial

defendant

Echols states:

The Plaintiff's suit omitted that he started
having respiratory complication in September 2012.
And that due to such he wrote CSX in October
2012.
However, this statement was false.
The Plaintiff
who has an IQ of 70 see Exhibit Ml
(Competency
Evaluation) and has been labeled as Literacy Incentive
Program (Lip) by VAD.O.C. Educational department See[]
Exhibit M2
(D.O.C. Educational Department) had the
assistance of a prison layman.
The Plaintiff prepared the necessary paperwork
for the layman.
13

Bad

has

However,
the
medical
records
were
not
the
Plaintiff's medical records.
The layman prepared the suit based off the wrong
records, which caused him to misstate a critical fact.
The Plaintiff did not experience respiratory
difficulty until the endings of June 2013 see Exhibit
M3 (Medical records of July) .
He was placed on the
list to see the sick call nurse at which time they
ordered X-rays.
It was only after speaking with Medical that he
was informed that he should contact CSX because they
believed his injuries [were] caused by his time at the
railroad.
The Plaintiff informed medical that CSX conducted
a test in 1994 but was uncertain as to the nature of
the test.
At no time did the Plaintiff contact his union
rep requesting his test result.
He then was informed to write them and ask for
the results of the test.
The Plaintiff then wrote CSX and asked for his
test results in July 2013. [ 5 ]
The Plaintiff explained his situation the best he
could to the layman which left the layman to assume
facts because the Plaintiff could not articulate
himself effectively to help the layman.
This
error
is
in part
to
the
Plaintiff's
inability
to
understand
the
law
and
the
facts
necessary to make a claim in the court of law.
The Plaintiff is now being helped by one of the
law library clerks at River North Correctional Center
(Arsean Hicks) who saw the errors omitted.
The
plaintiff
respectfully
requests
that
September 2012 be amended and replaced with June 2013.
As the Plaintiff's medical records indicate that he
started having respiratory difficulties and was seen
July 25, 2013 by the medical department See Exhibit M3
(July medical record) .
Amend~~

(Mot.

6-21 (paragraph numbers omitted).)

5

The Plaintiff's letter dated in Oct 2012 was not in
inquiry as to any condition because he had not yet
suffered any injury.
His inquiry was only for the
address of his union rep for the time he worked for
the railroad.
14

The

Court

does

Echols declared,
Complaint was

not

find

these

reasons

to

under the penalty of perjury,

"true and correct."

be

credible.

that his initial
almost a

Now,

(Comp 1 . 1 7 . )

year after filing his initial Complaint, Echols seeks to lay the
blame for his "errors" on the prison layman who assisted him in
preparing his

Complaint.

Clearly,

complaint to allege facts
initial

Complaint

so

as

Echols wishes

to amend his

that are wholly contradictory to his
to

avoid

having

his

suit

barred

by

statute of limitations.
Even if the Court accepted Echols's argument that he seeks
to amend his Complaint in good faith,
futile.

As noted above,

his proposed amendment is

Echols seeks to amend his Complaint to

allege that he did not begin to experience respiratory problems
until June of 2013 .
alleges

that

representative

on
in

However, in the next paragraph, Echols also
January
an

15,

effort

he

2013,
to

obtain

silicosis testing that CSX had conducted.
4.)

The Proposed Amended Complaint,

facts

that

results

of

would

suggest

such

any reason

testing,

unless

he

contacted
the

for
was

results

(ECF No.

however,

his

union
of

the

36-2, at 3-

is devoid of any

Echols

to

obtain the

experiencing

medical

problems that he strongly suspected resulted from his employment
with

CSX.

Thus,

indicates

that

result

his

of

he

Echols' s

Proposed

suspected

employment

his

Amended

respiratory

on or before
15

Complaint
problems

January 15,

clearly
were

2013,

a

well

before

May

10,

2 013 .

Accordingly,

Echols' s

Proposed Amended

Complaint is in bad faith and is futile, because it continues to
suggest that his claims accrued more than three years before he
filed this suit.

Therefore,

Echols' s

claims will be dismissed

as barred by the statute of limitations.

IV.

For
No. 25)

the

foregoing

No.

38)

reasons,

will be granted.

will be denied .

CSX' s

CONCLUSION

CSX' s

Motion

to

Echols's Motion to Amend

Dismiss

(ECF No. 36)

Second Motion to Stay Proceedings

will be denied as moot .

(ECF

(ECF

The action will be dismissed.

The Clerk will be directed to note the disposition of the action
for purposes of 28 U.S.C.
The

Clerk

is

§

1915(g)

directed to

send a

copy of

this

Memorandum

Opinion to Echols and counsel of record.
It is so ORDERED.

/ s/

Date'

(), .!.:.

~ (1, 'Jt>t 7

Robert E . Payne
Senior United States District Judge

Richmon~;~inia

16