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42 U.S.C. §§ 12101, et. seq.

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18 U.S.C. §§ 1962, et. seq.

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHARYLE G. EMEL, : No. 4:09-CV-0664

:

Plaintiff, :

v. : (Judge McClure)

:

ELIZABETH SINGLETON, et. al., :

: (Magistrate Judge Blewitt)

Defendants. :

MEMORADUM

March 17, 2010 

BACKGROUND: 

On April 10, 2009, plaintiff Cheryle G. Emel, proceeding pro se,

commenced this civil action by filing a complaint. (Rec. Doc. No. 1). Defendants

are Postmaster Elizabeth Singleton, Postmaster Kimberly Waite, Clerk Stephanie

Houser, US Postal Inspector Andrew C. Katerman, Jr., Labor Relations Specialist

Michael A. Olsavsky and FMLA Coordinator R. M. Wallace. In her complaint,

Emel alleges violations of her Fifth Amendment Due Process rights, the Americans

with Disabilities Act (“ADA”)1

 and alleges that the defendants were involved in

civil RICO2

 activity. 

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On October 30, 2009, defendants Singleton, Waite, House and Katerman

filed a motion to dismiss. (Rec. Doc. No. 18). They filed a supporting brief on

November 12, 2009. (Rec. Doc. No. 20). Emel filed an opposing brief November

19, 2009. (Rec. Doc. No. 22). Defendants filed a reply brief December 4, 2009. 

(Rec. Doc. No. 25). 

On November 20, 2009, defendants Olsavsky and Wallace filed a motion to

dismiss and a supporting brief. (Rec. Doc. Nos. 23 and 24). Emel filed an

opposing brief December 30, 2009. (Rec. Doc. No. 27). Defendants filed a reply

brief January 7, 2010. (Rec. Doc. No. 28). 

On February 11, 2010, Magistrate Judge Blewitt issued a forty-five page

report and recommendation recommending that both motions be granted and the

case dismissed. (Rec. Doc. No. 29). On February 25, 2010, Emel filed her

objections. (Rec. Doc. No. 25). On March 4, 2010 defendants filed their response. 

(Rec. Doc. No. 4). Thus the matter is ripe for disposition. 

Now, therefore, we will adopt the report and recommendation of the

magistrate judge, in part, insofar as it is consistent with this order, and grant the

defendants’ motions to dismiss in part and deny them in part. 

DISCUSSION:

A district court reviews de novo those portions of a magistrate judge’s report

Case 4:09-cv-00664-JFM Document 32 Filed 03/17/10 Page 2 of 7
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Bivens v. Six Unknown Named Agents of Fed. Bur. Of Narcotics, 403 U.S.

388 (1971). 

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We adopt the discussion of the magistrate judge with the exception of the

statement found at line 2 of page 14, “Based on Plaintiff’s allegations and the

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and recommendation to which a party objects. M.D. Pa. Local R. 72.3. The court

may “accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” Id. 

Plaintiff asserts causes of action under RICO, the ADA and Fifth

Amendment Due Process. The magistrate judge recommended that both motions

to dismiss be granted. The magistrate judge noted that Emel’s complaint is vague

and confusing, in violation of Federal Rules of Civil Procedure 8(a) and 10, but he

did not recommend dismissal on this basis. 

With respect to plaintiff’s Due Process claim, which the magistrate judge

construed to have been brought pursuant to Bivens3

, and ADA claim, the

magistrate judge recommended that the claims be dismissed because the action was

not brought prior to the expiration of the statute of limitations. We agree with the

magistrate judge that the statute of limitations has run on both plaintiff’s Bivens

and ADA actions, and, for judicial economy we will not rehash the sound

reasoning of the magistrate judge; instead we refer to the report and

recommendation for his analysis of the statute of limitations issue.4

 Plaintiff did

Case 4:09-cv-00664-JFM Document 32 Filed 03/17/10 Page 3 of 7
exhibits submitted.” We did not consider any “matters outside the pleadings” that

would invoke Fed. R. Civ. P. 12(d). 

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not object to these findings in the report and recommendation. Thus, we will

dismiss plaintiff’s Bivens and ADA claims. 

We are unable to adopt the reasoning of the magistrate judge with respect to

plaintiff’s RICO claims. The magistrate judge relied on matters presented outside

the pleadings in making his recommendation. To do that, we would have to treat

the motion as one for summary judgment pursuant to Fed. R. Civ. P. 12(d). As a

result, we will not adopt any part of the report and recommendation that relies on

the exhibits attached to the briefs. However, we do agree with the magistrate

judge that plaintiff’s RICO claims are vague and fail to state a cognizable RICO

claim. However, as plaintiff has attempted to formulate a RICO claim in her

opposing briefs, we will afford plaintiff an opportunity to amend her complaint to

state a cognizable RICO claim. Although the magistrate judge believes it would be

futile to allow plaintiff to amend her complaint, and that may well be, regardless,

because she is proceeding pro se we will allow plaintiff another bite at the apple, so

to speak. 

Plaintiff is advised that her amended complaint must comply with Federal

Rules of Civil Procedure 8 and 10. Plaintiff is further advised that she may file an

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amended complaint re-stating her RICO claim only. This is not an opportunity to

attempt to restate her ADA or Bivens claims, as both are barred by the applicable

statutes of limitations. 

Finally, plaintiff objects to the report and recommendation asserting that

dismissing her complaint would result in a Seventh Amendment violation. The

dismissal of plaintiff’s ADA and Bivens claims does not result in a Seventh

Amendment violation as she has failed as a matter of law to present an issue for

trial. See Christensen v. Ward, 916 F.2d 1462, 1466 (10th Cir. 1990). 

CONCLUSION: 

Plaintiff’s ADA and Bivens claims are dismissed. Plaintiff will be given

fourteen days in which to amend her RICO claim only. If plaintiff does not file an

amended complaint stating a cognizable civil RICO claim within fourteen days, the

complaint will summarily be dismissed for failure to state a claim. Plaintiff is

advised to follow Federal Rules of Civil Procedure 8 and 10 when drafting her

amended complaint. 

 s/ James F. McClure, Jr. 

 James F. McClure, Jr.

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHARYLE G. EMEL, : No. 4:09-CV-0664

:

Plaintiff, :

v. : (Judge McClure)

:

ELIZABETH SINGLETON, et. al., :

: (Magistrate Judge Blewitt)

Defendants. :

ORDER

March 17, 2010 

1. The Report and Recommendation of the magistrate judge is

ADOPTED, in part, insofar as it is consistent with the accompanying

memorandum. (Rec. Doc. No. 29). 

2. The Motion to Dismiss of Singleton, Waite, Houser and Katerman is

GRANTED in part and DENIED in part. (Rec. Doc .No. 18). 

3. The Motion to Dismiss of Olsavsky and Wallace is GRANTED in part

and DENIED in part. (Rec. Doc. No. 23). 

4. The Bivens and ADA claims are dismissed, with prejudice, as against

all defendants. 

5. Plaintiff has fourteen (14) days to file an amended complaint stating a

cognizable civil RICO claim. If plaintiff does not file an amended complaint

Case 4:09-cv-00664-JFM Document 32 Filed 03/17/10 Page 6 of 7
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within fourteen (14) days, the complaint will be summarily dismissed for failure to

state a claim upon which relief may be granted. 

6. The case file is remanded to the magistrate judge for further

proceedings consistent with this order. 

 s/ James F. McClure, Jr. 

 James F. McClure, Jr.

United States District Judge

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