Kerchee et al v. Smith et al

Filing 80

ORDER ADOPTING #25 REPORT AND RECOMMENDATION. Signed by Honorable Robin J. Cauthron on 9/27/11. (lg, )

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MELVIN KERCHEE, JR., et al.,
Plaintiffs,
vs.
JUDGE MARK SMITH, et al.,
Defendants.

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No. CIV-11-459-C

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiffs brought the present action asserting 61 causes of action against over 40
Defendants, seeking recompense for alleged violations of their constitutional rights, assorted
statutes, and common law. Consistent with the provisions of 28 U.S.C. § 636(b)(1)(B), this
action was referred to United States Magistrate Judge Robert E. Bacharach.

Judge

Bacharach entered a Report and Recommendation (“R&R”) on July 6, 2011, to which
Plaintiffs timely objected.
The substantive facts and law are accurately set out in Judge Bacharach’s R&R and
there is no purpose to be served in repeating them yet again. As Judge Bacharach noted,
Plaintiffs’ claims can be separated into Parts I and II. Because the claims are misjoined,
those set forth in Part II will be dismissed. As for the claims set forth in Part I, Judge
Bacharach set forth a thorough and well-reasoned analysis of those claims, the applicable
law, and the reason why those claims fail. Plaintiffs’ Objection offers no reasons to alter
Judge Bacharach’s conclusion, nor any argument which is not fully addressed by the R&R.
Therefore, further explanation is not warranted.

For the reasons announced in the R&R, the Court: DISMISSES with prejudice
Causes of Action 34 to 61 as they are improperly joined. All of Plaintiff Deborah SequichieKerchee’s remaining claims are DISMISSED without prejudice for lack of standing.
Plaintiff Melvin Kerchee’s claims brought pursuant to the Religious Freedom Restoration
Act, the Sherman Act, the Clayton Act, the Fifth Amendment, the Freedom of Information
Act, the Open Records Act, the Securities Exchange Act of 1934, the Ashurst-Sumners Act,
the Federal Powers Act, 42 U.S.C. § 1997, and 42 U.S.C. § 2000e-11 are DISMISSED
without prejudice as they either relate only to claims brought in the misjoined counts or do
not provide a claim for relief as pleaded by Mr. Kerchee. Mr. Kerchee’s 42 U.S.C. § 1983
and Bivens* claims raised in Causes of Action 1-8 and 13-25 are DISMISSED as time barred.
Mr. Kerchee’s claims against Judge Lewis sitting as a trial judge are DISMISSED as time
barred. Mr. Kerchee’s claims against Judge Lewis sitting as an appellate judge are barred
by absolute judicial immunity and are therefore DISMISSED. Mr. Kerchee’s claims against
Senator LerBlance are barred by the Eleventh Amendment and absolute legislative immunity
and are therefore DISMISSED. This Order does not address the claims brought by Mr.
Kerchee against the Oklahoma Bar Association, the OBA director, unnamed OBA personnel,
Lorraine Farabow, Scott Adams, Emmit Tayloe, and Michael Gassaway.

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Bivens v. Six Unknown Named Agents of Federal Bureau Narcotics, 403 U.S. 388 (1971)

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As set forth more fully herein, the Court adopts, in full, the Report and
Recommendation of the Magistrate Judge (Dkt. No. 25)
IT IS SO ORDERED this 27th day of September, 2011.

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