                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1671



GUY R. METTLE, SR.,

                                              Plaintiff - Appellant,

          versus


CSX TRANSPORTATION, INCORPORATED,

                                              Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:05-cv-01285-WMN)


Submitted:   January 24, 2007              Decided:   March 7, 2007


Before WILKINS, Chief Judge, and WILLIAMS and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mitchell A. Kaye, Lawrence Alan Katz, COFFEY, KAYE, MYERS & OLLEY,
Bala Cynwyd, Pennsylvania, for Appellant. Stephen B. Caplis, Emily
A. Daneker, WHITEFORD, TAYLOR & PRESTON, L.L.P., Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Appellant Guy Mettle, Sr. filed a complaint against Appellee

CSX Transportation, Inc. (CSXT), alleging violations of the Federal

Employers’ Liability Act (FELA), 45 U.S.C.A. § 51 et seq. (West

1986 & Supp. 2006).     CSXT filed a motion for summary judgment,

which was granted by the district court.     Finding no error in the

district court’s well-reasoned opinion, we affirm.



                                  I.

     CSXT is a class one railroad engaged in interstate commerce.

Mettle was employed in CSXT’s signal department for approximately

thirty-six years.    Mettle alleged that he was injured on December

23, 2004, while working as a signal maintainer in North East,

Maryland.   His job required him to inspect and repair the railroad

signal system.

     On the day in question, which was characterized as rainy and

wet, a CSXT dispatcher called Mettle to report a problem at the

Harbison Walker Intermediate Signal.     Mettle was informed that a

“track circuit pumping” problem existed, which meant that the track

was indicating it was occupied even though there was no train in

the area.     (J.A. at 56-57.)   At approximately 11:00 a.m., Mettle

went to the problem location and determined that a number of “rail

slivers” were shorting the track.       Mettle explained that “rail

slivers” are caused “[t]hrough train movement and the shifting,


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especially in curves.”        (J.A. at 59.)   The train “applies a lot of

friction on [the] rail and will actually wear the rail down, the

size on the head, so metal slivers come off in all different sizes

and widths, but most of them are kind of thin.”              (J.A. at 59-60.)

     Mettle   was    able     to   successfully     remove   the    problematic

slivers.   He then decided to test the track to determine if he had

fixed the problem.     To test the track, he squatted down and leaned

forward to take a track reading with a volt meter.             At that point,

Mettle’s right foot slipped off the railroad tie.             He was able to

regain his balance, but in doing so, Mettle alleged that he was

forced to awkwardly twist his body. Mettle worked the remainder of

his shift, but was forced to seek medical attention a few days

later because of back pains.          He believes that it was the above-

described twisting motion that injured his back.

     On April 21, 2005, Mettle filed suit against CSXT in the

Eastern District of Pennsylvania.          The case was later transferred

to the United States District Court for the District of Maryland.

Mettle’s theory of the case was that CSXT’s negligence caused, at

least in part, his injuries, in violation of FELA.             Specifically,

he claimed that CSXT was negligent in allowing mud and rail slivers

to   accumulate     between    the   rails,   and    that    this    negligence

proximately caused his injuries.

     On May 18, 2006, the district court entered summary judgment

in favor of CSXT.      The district court found that Mettle had made


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“nothing more than conclusory assertions as to [CSXT’s] alleged

negligence.”   (J.A. at 229.)   The district court noted that in

support of his negligence claim, Mettle had offered only his

unsupported opinions that an unacceptable amount of mud and slivers

were at the accident site, and Mettle failed to offer any evidence

showing that the conditions at the track were unsafe.   Thus, even

accepting his statements as true, the district court found that

Mettle failed to put forth evidence explaining that CSXT had a duty

to remove mud and slivers from the tracks for safety reasons and

had failed in exercising such a duty.       Relying on Hurley v.

Patapsco & Back Rivers R.R. Co., 888 F.2d 327 (4th Cir. 1989) (per

curiam), the court found that Mettle’s assertions were insufficient

to meet his burden of proving CSXT’s negligence and that “absent

speculation, a jury could not conclude that [Mettle] slipped

because of the mud and not because of the rain, which [Mettle]

described as a ‘heavy downpour.’”   (J.A. at 231); see Hurley, 888

F.2d at 329 (affirming directed verdict in favor of railroad

because the plaintiff’s evidence was such that “the jury could have

reached a verdict in his favor only by speculating”).

     Moreover, the court found that even assuming Mettle could show

negligence on the part of CSXT, he could not show the existence of

a “causal connection between the presence of either the mud or

slivers and [Mettle’s] misfortune of injuring his back,”   (J.A. at

231), in part because Mettle had admitted that CSXT “would not have


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wanted him to do anything unsafe, that he had the freedom to stay

in his truck if he believed the conditions outside were unsafe, he

did not need anyone’s approval to temporarily refrain from working,

and . . . he thought it was safe to perform the track reading,”

(J.A. at 233.)      In other words, the court found that Mettle’s

actions were the sole proximate cause of his injury.       See Hurley,

888 F.2d at 330 (“Given the evidence presented, the district court

properly concluded that plaintiff . . . was the sole proximate

cause of the accident.”).

       On June 6, 2006, Mettle timely appealed. We have jurisdiction

pursuant to 28 U.S.C.A. § 1291 (West 2006).



                                   II.

       We review de novo the district court’s grant of summary

judgment to CSXT.    See, e.g., Laber v. Harvey, 438 F.3d 404, 415

(4th Cir. 2006) (en banc).    Summary judgment is appropriate when

“the   pleadings,   depositions,   answers   to   interrogatories,   and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.”       Fed R.

Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986).   We must construe the facts in the light most favorable to

Mettle, and we may not make credibility determinations or weigh the

evidence.    See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255


                                    5
(1986); Edell & Assoc., P.C. v. Law Offices of Peter G. Angelos,

264 F.3d 424, 435 (4th Cir. 2001).

      We have reviewed the record, briefs, and applicable case law

on this matter.    Our careful review persuades us that the district

court’s ruling was correct.       Accordingly, we affirm the district

court’s order on the reasoning of the district court.            See Mettle

v. CSX Transp., Inc., Civil No. WMN-05-1285 (D. Md. May 18, 2006).

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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