Kahoe v. Fiol
| Decision Date | 08 February 2023 |
| Docket Number | Civil Action 22-3354 |
| Parties | LONNIE J. KAHOE, SR. v. JUAN FIOL, ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
SECTION “I” (2)
REPORT AND RECOMMENDATION
Plaintiff Lonnie J. Kahoe, Sr., filed a complaint (ECF No. 4; ECF No 4-1) pursuant to 42 U.S.C. § 1983 which was referred to a United States Magistrate Judge to conduct a hearing including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), § 1915e(2), and § 1915A, and as applicable, 42 U.S.C § 1997e(c)(1) and(2). Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing.
Kahoe filed a pro se and in forma pauperis complaint pursuant 42 U.S.C. § 1983 against the following defendants: assistant Orleans Parish public defenders Juan Fiol, Sierra Thompson, and Derwyn Bunton; the public defenders' investigator Sara Jones; mental health care providers Lionel King, James Brad McConville, Sarah Deland, Jose Artecona, and C. Robinson-Jackson; minute clerk for Section I of the Orleans Parish Criminal District Court, Claire Lavaccari, and law clerk for Section I at the Orleans Parish Criminal District Court, Michael Riehlmann. ECF No. 4, ¶III(B-L), at 4, 6; ECF No. 4-1, at 1.[1] Kahoe alleges that his public defender, Fiol, lied in open court about not having discovery, lied about moving for a speedy trial, and lied about investigator Jones needing access to 10 years of his emails to gather information for trial. ECF No. 4, ¶IV(B-D), at 7; ECF No. 4-1, at 1. Kahoe asserts that in September 2019, Fiol became his public defender and coerced him into signing a release to allow Jones to access 10 years of his personal emails. ECF No. 4, ¶IV(M) at 10; ECF No. 4-1, ¶2, at 2. He claims that Jones never contacted any of his witnesses and did not return his emails or other evidence that was supposed support his defense.
Kahoe also claims that, on November 21, 2019, after waiting 200 days for charges to be approved or dropped, Fiol told Kahoe that there was no speedy trial issue and that he must agree to accept new charges or he would not get a bond to be released. ECF No. 4, ¶IV(L), at 9-10; ECF No. 4-1, ¶2, at 5. Kahoe claims that there was no judge in the courtroom at the time of this discussion.
During his brief release on bond in 2020, Kahoe discovered that no one from the public defender's office contacted people about his defense. ECF No. 4-1, ¶2, at 2. In July 2020, Kahoe asked Fiol why Jones never returned his private information, and Fiol told him that he was “pissing off certain people with [his] investigating and he better find a tall mountain to go hide.” ECF No. 4, ¶IV(I), at 8-9; ECF No. 4-1, ¶2, at 3.
Kahoe further alleges that at some point in 2020, he contacted Sierra Thompson, whom he believed to be a supervising public defender, to have Fiol removed from his case. ECF No. 4, ¶IV(M) at 11; ECF No. 4-1, ¶2, at 3. Thompson passed his phone number on to other alleged supervisors, claiming she was not appointed to Fiol or Kahoe's case. He claims that the numbers she provided were inactive.
Kahoe alleges that, at some point, Fiol sent him a text message to appear in court on December 1, 2020. ECF No. 4, ¶IV(E), at 7; ECF No. 4-1, ¶2, at 3. Kahoe claims he did not have court that day and this was a ruse which led to the state court increasing his bond to $50,000. ECF No. 4, ¶IV(E), at 7; ECF No. 4-1, ¶2, at 4. He claims the court issued the bond increase after the minute clerk, Lavaccari, handed a document to Judge K.K. Herman. He contends that this increase must have been arranged by Fiol and someone named Jill at Steve's Bail Bonds.
Kahoe further claims that defendant Lavaccari, as Judge Herman's minute clerk at the Orleans Parish Criminal District Court, also posted an entry on October 22, 2020, which falsely set a pretrial conference for December 1, 2020. ECF No. 4, ¶IV(M) at 18; ECF No. 4-1, at 1. He denies that he was scheduled for court that day. He claims this was a fake court date made up by Fiol so that Kahoe would get to court for Lavaccari to give Judge Herman a document to increase his bond to $50,000. He asserts that this was a clerical error and Lavaccari used the posted date to cover up for Fiol's bond extortion.
Kahoe alleges that he was rearrested on January 15, 2021. ECF No. 4, ¶IV(F), at 8; ECF No. 4-1, ¶2, at 4-5. Fiol told him he would be released that evening after paperwork was filed, but he has remained incarcerated. ECF No. 4, ¶IV(F), at 8; ECF No. 4-1, ¶2, at 5. Kahoe alleges that Fiol also told him that day that he lost Kahoe's file with all of the names, numbers, and evidence. ECF No. 4, ¶IV(G), at 8; ECF No. 4-1, at 1. Fiol told him he would be back to see him and never returned. Each time Fiol appeared in court, he would ask for more time from the court which resulted in prolonging Kahoe's incarceration. ECF No. 4, ¶IV(K), at 9; ECF No. 4-1, at 1.
Kahoe asserts that, in March of 2021, Fiol tried to solicit a family friend to give attorney Mike Ingranda a personal phone number for Kahoe's ex-wife and step-mother. ECF No. 4, ¶IV(J), at 9; ECF No. 4-1, at 1. Attorney Ingranda then visited Kahoe in jail, pretending to be a replacement public defender, and, after learning about Kahoe's defense, asked for $15,000 to defend the case.
Kahoe claims that he fired Fiol on April 5, 2021. ECF No. 4, ¶IV(H), at 8; ECF No. 4-1, ¶2, at 6. Fiol immediately moved for Kahoe to undergo a mental evaluation and gave fraudulent information to mental health care providers and Judge Herman. Despite being fired, Fiol remained on the case giving false reports to mental health care providers King, McConville, and Artecona through December of 2021. He provided false and slanderous information. ECF No. 4, ¶IV(M), at 10; ECF No. 4-1, at 1.
He further alleges that he sent complaints of malfeasance and malpractice about Fiol to Mike Mitchell and Reny Starns at the Public Defender Board in Baton Rouge. ECF No. 4, ¶IV(M), at 10; ECF No. 4-1, ¶3, at 10. He was told to contact Orleans Parish Chief Deputy Public Defender Derwyn Bunton, who refused to speak with him or reply to his letters for three years. Kahoe claims this was disregard for Fiol's incompetence and intentional misrepresentation and amounted to a refusal of counsel or defense. ECF No. 4, ¶IV(M) at 10; ECF No. 4-1, at 1. Kahoe asserts that Bunton spoke with him only once in October 2021, and told Kahoe that he would be getting a new attorney, Arthur Rowe, and then hung up. ECF No. 4, ¶IV(M) at 12; ECF No. 4-1, at 1.
On April 30, 2021, Kahoe was taken for a court video appearance during which Dr. Richard Richoux told Kahoe he would be doing a mental health evaluation. ECF No. 4-1, ¶3, at 6-7. Kahoe refused to participate because he had no witnesses. Id. at 7. On May 5, 2021, without hearing from Fiol beforehand, Fiol and Dr. Salcedo testified that they had conducted an evaluation and found Kahoe incompetent to proceed and to be sent ELMHS for drug treatment. Kahoe claims he was denied the opportunity to prove his competence. Id. at 8.
In July of 2021, Thompson told Kahoe that Thompson had a talk with Fiol and they “figured it out.” She then told Kahoe to stop calling her. ECF No. 4, ¶IV(M) at 12; ECF No. 4-1, at 1. That same month, Kahoe was told by defendant King that Thompson asked him to do a mental health assessment for Kahoe. ECF No. 4, ¶IV(M) at 12; ECF No. 4-1, ¶2, at 6. While Kahoe was in an East Louisiana Mental Health System facility (“ELMHS”) in December 2021, Kahoe acquired a file and found false statements and reports from King and Dr. Deland. ECF No. 4, ¶IV(M) at 13; ECF No. 4-1, at 1. The documents stated that they conducted an assessment on May 24, 2021 at the Orleans Justice Center (“OJC”) finding Kahoe incompetent, suspicious, hostile, suicidal, and delusional, and admitted Kahoe for 15 days. The reports also indicated he was prescribed medication by Dr. Catherine Cashman on November 10, 2021. Kahoe claims that he was never given an assessment by King and has never met Dr. Deland or Dr. Cashman. He claims the reports are lies, malpractice, and corrupt.
Kahoe asserts that in July of 2021, he met with Dr. McConville by video monitor for an assessment requested by Thompson and Fiol. ECF No. 4, ¶IV(M) at 14; ECF No. 4-1, at 1. Kahoe claims that Dr. McConville told him there was nothing wrong with him and no need for him to be in ELMHS. Kahoe was later sent to ELMHS from October through December 2021. ECF No. 4, ¶IV(M) at 14; ECF No. 4-1, at 1. Dr. McConville later told Kahoe that Fiol provided collateral information that Kahoe was delusional and paranoid and out of touch with reality. The doctor then tried to convince Kahoe to take medication to stop the delusions. When Kahoe received the doctor's report, it was dated in November of 2021 not July of 2021. ECF No. 4, ¶IV(M) at 15; ECF No. 4-1, at 1.
Kahoe claims that defendant Artecona was a staff doctor at ELMHS between October 21, 2021, and February 3, 2022. Artecona told Kahoe that he was incompetent according to information received from Fiol, King, Deland, and McConville and would be given medication. Kahoe claims that Artecona would not allow him his right to testing or evaluation. ECF No. 4, ¶IV(M) at 16; ECF No. 4-1, at ¶3, 8. He was prescribed 100 mg of risperidone[2] daily with bisacodyl[3] given to him by Nurse Barbara Wilson by placing it in his food. On January 14, 2022, Dr. Arredondo tested Kahoe and on January 17, 2022, found him competent to proceed. Id. at 9.
Kahoe alleges that, while in ELMHS on January 26, 2022, he was given a packet of documents...
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