Calhoun v. Frisco Railroad

64 F. App'x 420

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 28, 2003
• Docket: No. 02-6025
• Status: Published

Opinion

ORDER

Flem Calhoun, II, a California litigant proceeding pro se, appeals a district court judgment dismissing his wrongful death action brought under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq. Additionally, Calhoun has filed a motion for miscellaneous relief. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

Calhoun brought this action for the wrongful death of his grandfather, Flem Calhoun, who apparently died in 1948. The decedent was apparently employed by defendant Frisco Railroad (“Frisco”), which Calhoun alleges was an extension of the defendant Illinois Central Railroad. Around the time of the decedent’s planned retirement in 1948, he was apparently informed by Frisco management that, because they believed him to be black, they did not have to pay him a pension based on his thirty years of service but, instead, his pension benefit would be calculated as if he had started working for Frisco in 1945. Because the decedent could not afford to retire under those circumstances, he returned to his job with Frisco, where he allegedly got into a heated argument with a Frisco official, suffered a cerebral hemorrhage, and died. Calhoun alleges that his grandmother was never able to recover death or retirement benefits from Frisco.

The wrongful death complaint was filed on June 10, 2002. Calhoun alleges that the defendants fraudulently concealed the cause of the decedent’s death. He also claims that the defendants conspired with each other to withhold the decedent’s retirement benefits. Lastly, Calhoun claims that the “defendants” committed arson at some unspecified time in order to destroy the records relating to his grandfather’s employment. Calhoun seeks monetary relief. The district court summarily dismissed Calhoun’s complaint for frivolity and failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). Calhoun has filed a timely appeal.

We review de novo a judgment dismissing a suit as frivolous and for failure to state a claim upon which relief may be granted under § 1915(e)(2). See Brown v. Bargery, 207 F.3d 863, 867 (6th Cir.2000); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). A complaint “is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). “Dismissal of a complaint for the failure to state a claim on which relief may be granted is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Brown, 207 F.3d at 867.

Upon review, we conclude that the district court properly dismissed Calhoun’s complaint because it is frivolous and fails to state a claim for relief. The Federal Employers’ Liability Act, is a “ ‘remedial and humanitarian statute ... enacted by Congress to afford relief to employees from injury incurred in the railway industry.’ ” Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 807 (6th Cir.1996) (quoting Edsall v. Penn Cent. Transp. Co., 479 F.2d 33, 35 (6th Cir.1973)). The statute provides that a proper plaintiff, in the case of death of railroad employee, is “his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee.” 45 U.S.C. § 51. Calhoun alleges that, at the time of the decedent’s death, he lived with, and was supported by, his grandfather. He further submits his mother’s death certificate. Thus, Calhoun has standing to bring this lawsuit.

Despite its broad remedial and humanitarian purpose, FELA limits the commencement of actions by injured railway workers with a three-year statute of limitations. See 45 U.S.C. § 56 (“No action shall be commenced within three years from the day the cause of action accrued”). This uniform rule is mitigated by the application of the “discovery rule.” See Aparicio, 84 F.3d at 814. The discovery rule applies where “the injured person sustains an injury which cannot itself reasonably be discovered, or the cause of which cannot reasonably be discovered, until some time following the tortious event and the running of the statute of limitations.” Hicks v. Hines, Inc., 826 F.2d 1543, 1544 (6th Cir.1987). When such a circumstance arises, the statute of limitations is tolled until “the date by which the plaintiff reasonably should have discovered both cause and injury.” Hicks, 826 F.2d at 1544. The discovery rule imposes upon an injured railway employee the duty to exercise due diligence; thus, once an injured worker has reason to suspect that his injury is work-related, he must take action to determine whether that is, in fact, the case. See Aparicio, 84 F.3d at 815.

While Calhoun claims that his claim accrued in 1985, when he learned the facts concerning his grandfather’s death, the statute of limitations expired more than ten years ago. Therefore, his claim is time-barred.

Accordingly, the motion for miscellaneous relief is denied, and the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.