UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JENNIFER NICOLE FOSTER,
Appellant,

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AMANDA FISHER, Magistrate, 28 Judicial District, ]
State of North Carolina,
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in her official and individual capacities,
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JACK VAN DUNCAN, Sheriff, Buncombe County,
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North Carolina, in his official and individual capacities ]
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DOE BUNCOMBE COUNTY SHERIFF DEPUTY
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NUMBER ONE, in his official and individual capacities ]
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CALVIN HILL, Chief District Court Judge, 28 Judicial ]
District, State of North Carolina, in his
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official and individual capacities
]

CASE NO. 16-1792

APPELLANT'S
INFORMAL
OPENING BRIEF

Now comes Appellant Jennifer Nicole Foster J.D.1, and submits her pro se informal
opening brief as follows:2
Jurisdiction
Appellant timely appealed the March 9, 2016 Order of the District Court of
1 Appellant graduated with a JD with Honors from UNC School of Law in 1995 but has been
unlicensed in NC since 2013 as the proximate result of the civil rights violations alleged herein. She
currently holds an active CA license but has not worked since 2013. Appellant has limited legal
research capabilities, has never practiced in federal court and has never participated in a civil rights
action as an attorney. Although the District Court clearly harbored resentment at Appellant as a pro
se attorney, Appellant is as 'pro se' as they come, particularly considering the mental health issues
that resulted from these torts and ongoing perjury. She has at all times attempted to the best of her
ability to present her claims to the Court. A Motion for the Appointment of Counsel on Appeal has
also been submitted herein should the Court feel the need for additional briefing on the matters of
first impression contained herein. Appellant lacks online legal research capacity.
2 Appellant abandons her claims against Van Duncan and John Doe Deputy One for the sake of
simplicity.
1

Western North Carolina, Asheville Division, Reidinger, J. presiding, dismissing her

federal civil rights action filed pursuant to 42 U.S.C. 1983 at the time she also filed a
Rule 59(e) Motion to Alter or Amend. (Docket 63). The appeal was perfected upon
denial of the Rule 59(e) Motion on June 21, 2016. (Docket 67, 69).
Introduction
Appellant founded Occupy Asheville and served as it's attorney liaison. She
sought 1983 relief based on events of 11/5/11, when she went to the Magistrate Office
in the bottom of the Buncombe County Detention Facility (BCDF) on a 'warrant check'
for members of Occupy Asheville who were being arrested based on a videotaped march
from days earlier. Tensions were running high as peaceful protesters, as well as legal
observers, were being arrested at their homes for 'Picketing Without a Permit.' Appellant
cursed as she left the office in frustration, as Magistrate Fisher refused to provide any
information on outstanding warrants for protesters in Appellant's effort to bring a
peaceful resolution to the unprecedented police action.
Outside of Appellant's presence, and after she left the building, Magistrate Fisher
summarily held Appellant in contempt of court, without any warning, although no court
proceeding or judicial process was invoked. Appellant was detained, served with the
judgment of conviction for contempt and sentenced to five days incarceration.
Once incarcerated,3 Appellant filed an oral notice of appeal, but rather than
3 Appellant, a 16-year successful attorney, had never before been arrested. Her mug shot was featured
on the cover of USA Today with various leaders of the national Occupy Movement.
2

releasing Appellant as required by statute, or holding a bond hearing, Fisher sua sponte
imposed a $10,000 'cash-bond,' which was not permitted under local rules. Appellant
was held for 48 hours without bond and was forced to appear before her colleagues in
shackles in criminal Superior Court the following Monday for a bond reduction, at
which time she was released.
During the Superior Court trial de novo, Fisher testified that she acted
intentionally to impose a 'cash only' bond to ensure Appellant would not be released
from custody, so that she would not return to the Occupy Camp, so that a 'riot would not
ensue.' (Docket 1, Exh 1, Superior Court Transcript at 37-38). The North Carolina
Court of Appeals subsequently reversed the contempt conviction, finding that Fisher had
failed to afford Appellant any opportunity to respond, the only due process safeguard in
the contempt statute. In re Foster, No. COA12-865, 2013 WL 2190072 (N.C. Ct. App.
2013) (unpublished).
On the last day of the statute of limitations, Appellant did her best to file the
instant 1983 action despite suffering from complex PTSD as the result of the conduct
alleged herein. She asserted claims against Magistrate Fisher for the illegal 48-hour
illegal detention in violation of her First Amendment rights to Speech and Association.
She also asserted claims of perjury in retaliation for her First Amendment rights, as
Fisher fabricated her trial testimony to justify the illegal, politically motivated detention.
Such perjury has been the proximate cause of Appellant's NC law license being

administratively suspended in 2013, resulting State Bar disciplinary prosecution July

2016 for 'disrespecting a tribunal' under state ethics rules, and the failure of the NC State
Bar to Reinstate her law license at it's most recent quarterly meeting.4 Appellant also
asserted the supervisory liability of Chief Judge Calvin Hill, and claims against
Buncombe County Sheriff Van Duncan and John Doe Sheriff Deputy for
unconstitutional conditions of confinement based on 48 hours of intentional sleep
deprivation in retaliation for First Amendment rights.
This appeal is straightforward. The District Court sua sponte applied witness
immunity to dismiss Appellant's perjury claims despite the fact the affirmative defense
was not raised in the Rule 12(b)(2) Motion to Dismiss, and was therefore waived, and
also erred when applying Rooker-Feldman to dismiss for lack of subject matter
jurisdiction. The Court erroneously granted Fisher absolute judicial immunity despite
the fact she was not performing a 'judicial act' requiring the exercise of discretion upon a
'warrant check' for Occupy Asheville protesters, and acted without jurisdiction to jail
Appellant for contempt of court, when no court proceeding or judicial process was
4 At the time of this writing, the NC State Bar has not yet issued it's Order suspending Appellant from
the practice of law for 2 years, stayed on conditions of mental health reporting, upon it's finding that
Appellant 'disrespected a tribunal' based on the encounter with Fisher. Appellant intends to appeal to
the NC Court of Appeals for a determination of whether the magistrate office in the bottom of the
BCDF is a 'tribunal,' which is defined as a court hearing contested matters. At the most recent July
meeting, the Membership Committee of the State Bar granted Appellant's Petition to Reinstate her
license from administrative suspension, yet stayed the reinstatement on the condition that Appellant
either abandoning her appeal to the Court of Appeals or waiting until the conclusion of that appeal.
Appellant is hopeful this coercive condition will be lifted at the October Bar meeting, thus
reinstating her license. All of these actors, like Fisher, are employed by the State of North Carolina.
All of these consequences are the direct and proximate cause of Fisher's perjury.
4

invoked. Appellant also appeals the denial of her request for declaratory relief as to
Fisher, and the supervisory liability of Judge Hill.
Issues for Review
I.
II.
III.
IV.
V.

Dismissal of Perjury Claims

Improper Grant of Judicial Immunity
Improper Dismissal of Supervisory Liability Claim Against Defendant Hill
Denial of Declaratory Relief
Reassignment of District Court Judge Upon Remand

Procedural History
On the last day of the three year statute of limitations, Appellant filed the instant
pro se civil rights action to the best of her ability and was granted IPF status, asserting
claims against state Magistrate Fisher and Buncombe County Sheriff Van Duncan based
on unconstitutional conditions of confinement. (Docket 1, 2, 3). Due to the matters
alleged therein, as well as other political fall out from Appellant's work as a local justice
activist,5 Appellant was disabled with PTSD, anxiety and depression at the time she filed
the complaint, and thereafter sought leave to amend. (Docket 13). Automatic leave to
amend was granted under Rule 15, and pending Motions to Dismiss by all Defendants
were denied as moot. (Docket 20, 22 , 23, 24, 32, 33).
At that point, however, and after Appellant filed a vigorous Motion for Pro Se
Electronic Filing and Reconsideration of it's denial, (docket 14, 21), District Court
Judge Reidinger directed the presiding Magistrate to copy him on all matters, warning
5

Appellant's activism is credited, in large part, for the electoral removal of former corrupt Buncombe
County District Attorney Ron Moore, whose office prosecuted Appellant's contempt conviction.
5

Appellant of dismissal should she not comply with court rules. (Docket 32).
Appellant thereafter filed two Amended Complaints (docket 22, 33), after which,
Defendants filed Motions to Dismiss under Fed. R. Civ. P. 12 (docket 41, 43, 48), and to
which Appellant responded. (Docket 49, 53). Magistrate Judge Cayer issued his
Recommendation for dismissal (docket 55), to which Appellant objected (Docket 58).
By Order dated March 9, 2016, the District Court adopted the Magistrate's
Recommendation and granted Defendants' Motions to Dismiss, finding Fisher entitled to
absolute judicial immunity, as well as witness immunity, despite the fact that such was
not raised as a defense. The Court rejected the claim of supervisory liability against
Defendant Hill, applying judicial immunity and finding no claim for relief. The Court
dismissed claims against Sheriff Van Duncan, finding Appellant's allegations of 48-hours
of intentional sleep deprivation to constitute 'de minimus' injury for purposes of 1983,
and found, as time-barred, the amended complaint adding John Doe Sheriff Deputy No.
One as a Defendant. (Docket 60).
Appellant both timely appealed and filed a Rule 59(e) Motion to Alter/Amend,
(docket 62, 63), which was denied by Order dated June 21, 2016 (docket 67); thus,
perfecting the appeal. (Docket 69).6

6 Appellant was in the hospital at the time the notice of appeal was due on her Rule 59(e) Motion;
thus, this order is not at issue in the appeal.
6

Issues for Review

I.

Dismissal of Perjury Claims

A.

Sua Sponte Application of Waived Witness Immunity Defense

Despite the fact that Fisher filed a Rule 12(b)(2) Motion to Dismiss asserting only
judicial immunity, the District Court dismissed Appellant's perjury claim on it's own
initiative by sua sponte applying the waived affirmative defense of witness immunity.
In all cases, sua sponte dismissal is appropriate when the Court discovered a lack
of subject matter jurisdiction, such as a case of sovereign immunity. See Fed. R. Civ. P.
12(h)(3); Arbaugh v. Y&H Corp., 546 U.S. 500, 506, 514, 126 S. Ct. 1235, 1240, 1244
(2006). Personal immunities, however, such as judicial and witness immunity, even
though they are absolute, are affirmative defenses asserting lack of personal jurisdiction,
that must be pleaded or are waived. See Fed. R. Civ. P. 8(c); 12(g); 12(h); see Foster v.
Arletty, 278 F.3d 409 (4th Cir. 2002) (personal jurisdiction defenses can be waived); cf.
Gomez v. Toledo, 446 U.S. 635, 640 (1980) (qualified immunity is affirmative defense
that must be plead under Rule 8(c)); Jones v. Chandrasuwan, 820 F.3d 685 (4th Cir. 2016)
(qualified immunity is an affirmative defense). Furthermore, pursuant to the 'joiner rule'
of Rules 12(g), defenses to personal jurisdiction omitted from a Rule 12 Motion
asserting other grounds for dismissal are waived. See Fed. R. Civ. P. 12(g), (h); see e.g.
Mordkofsky v. Calabresi, 159 Fed. Appx. 938 (11th Cir. 2005) (sua sponte dismissal of
complaint on basis of absolute judicial immunity improper as such is affirmative defense

that does not divest the court of subject matter jurisdiction).

In this case, Fisher raised judicial immunity, but omitted witness immunity, in her
Rule 12(b)(2) Motion to Dismiss. (Docket 41). Pursuant to Rule 12(g) and (h), witness
immunity has thus been waived as a defense. The Court has no power to sua sponte
dismiss based on waived affirmative defenses. Cf. Gagan v. Norton, 35 F.3d 1473 (10th
Cir. 1994) (reversing sua sponte denial of motion to amend as futile to add new
defendants on the basis of unasserted qualified immunity defense). Remand is required.
The District Court did not provide the basis for it's dismissal either in it's Order or
upon denying Appellant's Rule 59(e) Motion for Reconsideration, but Appellant's
research for appeal has revealed, much to her surprise, summary dismissal provisions for
IPF actions under 28 U.S.C. 1915(e)(2)(B), in particular dismissal for any IFP action
that seeks monetary relief against a defendant who is immune from such relief, 28
U.S.C. 1915(e)(2)(B)(iii).
This Court should decline to invoke 1915(e)(2)(B)(iii) as a basis for affirmative
for several reasons. First, the District Court never mentioned the statute, instead
dismissing the action upon grant of Defendants' Motions to Dismiss. Appellant can find
no case law where the Court acts under 1915(e)(2)(B) after a motion or responsive
pleading has been filed, and contends it lacks the authority to do so.
Appellant also contends that 28 U.S.C. 1915(e)(2)(B)(iii) does not apply in nonprisoner cases. These provisions were enacted in 1996 as part of the Prison Litigation
8

Reform Act and were intended to curb prison litigation. See Anderson v. Singletary, 111
F.3d 801, 805 (11th Cir.1997); Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir.1997)
("The legislation was aimed at the skyrocketing numbers of claims filed by prisoners-many of which are meritless--and the corresponding burden those filings have placed on
the federal courts."); Santana v. United States, 98 F.3d 752, 755 (3d Cir.1996)
("Congress enacted the PLRA primarily to curtail claims brought by prisoners under 42
U.S.C. 1983 and the Federal Tort Claims Act, most of which concern prison conditions
and many of which are routinely dismissed as legally frivolous.").
Appellant has been unable to locate any case law applying 1915(e)(2)(B)(iii) in
a non-prisoner case, and contends affirmance is not proper on this basis.
Even if this Court were to find an intent to apply 28 U.S.C. 1915(e)(2)(B)(iii)
beyond prisoner cases, the Court must construe the statute in accordance with wellsettled law interpreting Rule 12 to avoid a clear equal protection violation in this case.
Importantly, Appellant's IFP status is the direct and proximate result of Fisher's tortuous
conduct. To apply a different standard of review merely on the basis of indigency where
the IPF designation is the result of the alleged misconduct, would be untenable and
unconstitutional.
Appellant is only aware of one case addressing an equal protection challenge to
the statute, under 1915(e)(2)(B)(ii), where the Court rejected the challenge, finding a
legitimate state interest in curtailing prisoner litigation. Mitchell v. Farcass, 112 F.3d

1483 (11th Cir. 1997). No state interest exists in the case at hand, other than curtailing,
on the basis of economic status, a plaintiffs right to the full benefit of well-settled law
surrounding Rule 12 and presentation of affirmative defenses.
The simple truth is, had Appellant paid the filing fee, the defense of witness
immunity would be waived and remand would be required for discovery and trial.
Applying 1915(e)(2)(B)(iii) in this non-prisoner civil rights case, without any warning
from the Court, without the Court even citing such as the basis of it's dismissal, and
where the IFP status is the direct result of the alleged tortuous conduct, would amount to
a clear equal protection violation without any legitimate state interest in support. Such
would also appear to violate Appellant's due process rights to access to courts.
To avoid these unconstitutional results, the Court must interpret 1915(e)(2)(B)
(iii) in accordance with the long-standing Rule 12 law and find the affirmative defense
of witness immunity has been waived and remand for further proceedings. See Fed. R.
Civ. P. 8(c); 12(g), (h).
B.

12(b)(6)-Appellant has stated a claim for relief for perjury

Appellant has stated a claim for perjury. In her initial complaint, Appellant
alleged the entirety of the following testimony was false:
61. Defendant Fisher testified at trial de novo that Appellant
repeatedly cursed after specifically being warned not to do so as
an attorney present in a magistrate judge courtroom. Defendant
Fisher testified that Appellant cursed using the F-word as many
as five times, and that she expressly warned her that she would
be held in contempt if she continued to curse after the third or
10

fourth time. She testified that she asked Appellant to leave after
cursing the second or third time. Defendant Fisher testified that
expressly stated to Appellant that she was holding her in
contempt after she cursed the third time, and told Appellant to
stop and return to the magistrate window because she was being
held in contempt of court, but Appellant exited the office.
62. Defendant Fisher further testified that she instructed
officers to bring Appellant back to the magistrate office
because she was being held in contempt of court. (Docket 1).
Fisher clearly had motive to fabricate her testimony in an attempt to obscure her
illegal detention of Appellant without bond so that she would not be released until
Monday morning to prevent her from returning to the Occupy Camp. There are at least
eight instances of perjury contained in Fisher's testimony, as set forth below:
(1) that Fisher told Appellant that, as an attorney, defendant "should already be
aware that the magistrate's office is a courtroom and that she should watch
her language, upon her initial inquiry asking what the hell is going on.
Fisher never once warned Appellant as attorney, and she never once used the word
courtroom in her presence.
(2) Testimony from Fisher that after she checked whether defendant had an
active warrant, defendant said, "'What the fuck is going on around here?'"
The magistrate then stated, "'Ms. Foster, this is the second time you've
cussed in the courtroom. I'm going to . . . have to ask you to leave.'" (CTA
Opinion at 9).
The only time Appellant used the F-word was upon exiting the office. She did not use
the F-word after Fisher checked whether she had a warrant, and Fisher did not ask her to
leave or ever use the word 'courtroom' in her presence.
(3) that Appellant used the F-word as many as five times and that Appellant
responded by making additional statements including the word "'fuck',
11

after she checked whether she had a warrant.

Appellant used the F-word only upon exiting the office and only used it once.
(4) that Appellant stated: "'Oh, yeah, I said "fuck,"' "'This is fucking
ridiculous,'" and "'This is fucking crazy.'"
None of these statements were ever uttered.
(5) that she expressly warned Appellant that she would be held in contempt if she
continued to curse after the third or fourth time, as noted by the Court of
Appeals: The magistrate testified that "[a]bout the second or third statement
after I asked her to leave the courtroom, I informed her that I was going to
hold her in contempt.'
Fisher never used the word contempt in Appellants presence and did not warn her that
she would be held in contempt.
(6) That she "informed [defendant] twice [that her behavior was disruptive] and
then informed her that she was going to be held in contempt."
Fisher never informed Appellant that her behavior was 'disruptive' and never informed
her that she was going to be held in contempt.
(7) Per the Court of Appeals opinion at 9: The magistrate then testified to the
following:
A. . . . She continued to cuss, but at that point walked towards the glass
enclosure and glass door. I told her to stop and come back to the window,
and she continued out the door.
Q. And what was your purpose in having her come back to the window?
A. Because I had already informed her that I was going to hold her in
contempt.
Q. Did she stop?
A. No.
Q. Where was it that she went to after that?
A. She left the building.
None of this happened. Appellant was never instructed to come back to the window and
12

was never informed she was being held in contempt.

(8) that she instructed officers to bring me back to the Magistrate Office because
I was being held in contempt of court.
None of the arresting officers knew why Appellant was being arrested, could not tell her
the charges, and never once uttered to word contempt.
While the Court of Appeals was required to reverse the contempt conviction for
lack of opportunity to respond, it went well out of it's way to issue a scathing
condemnation of Appellant based on Fisher's perjured testimony:
We are, however, very troubled by defendant's
use of profanity in the magistrate's office while conducting
court-related business despite warnings by the magistrate about
the inappropriate language. Such disrespect, particularly by an
attorney familiar with proper courtroom practices, is wholly
inappropriate. In addition, we are disturbed by defendant's
Facebook posts following the incident which evidence her failure
to acknowledge the wrongfulness of her conduct -- indeed the
posts indicate a very cavalier attitude.7
None of Fisher's testimony is true. As she has maintained at every juncture,
Appellant simply entered the office, asked: (1) What the hell was going on? (2) was
told to watch [her] language, and then (3) upon existing the office, cursed asking
"what the fuck is going on? This is a bunch of bullshit, after which, Fisher summarily
found Appellant in contempt after she left the office and outside her presence.
7 The Court of Appeals also admonished Fisher for imposing an illegal bond:
We note, however, that we are also troubled by the magistrate's choice to
violate the bond policy established for the 28th Judicial District pursuant to
N.C. Gen. Stat. 15A-535(a) (2011). That policy provides unambiguously
that "[c]onditions requiring 'Cash Only' are not allowed." While
defendant's behavior was certainly outrageous, the magistrate should not
have reacted to that behavior by disregarding the established bond policy.
13

The District Court found that, by admitting to cursing, Appellant had failed to
state a claim for perjury:
In addition, Plaintiff has pleaded facts that foreclose her being
able to prove that the alleged perjury caused her harm. Plaintiff
was convicted of contempt for using profanity in court. Plaintiff
ADMITS having done so. She only asserts that she did not use
profanity quite as many times as Fisher testified she did. The
allegations in Plaintiffs Complaint constitute a concession of
the factual basis for her conviction. For these reasons, Plaintiff
has not stated a cognizable claim regarding Fishers testimony,
and therefore Fishers motion to dismiss pursuant to Rule 12(b)
(6) will be granted. (Docket 60 at 32).
As set forth above, Fisher's false testimony far exceeds any dispute about the
number of times cursed. It surrounds whether Appellant was warned 'as an attorney,'
that the area was 'a courtroom,' warned that she would be held in contempt, told she was
being held in contempt, asked to leave the office, or asked to return to the window
because she was being held in contempt. None of this happened, and Fisher's gross
exaggeration of the encounter has led to significant economic, medical and reputation
resulting damages to Appellant.8
Appellant has alleged that Fisher fabricated her testimony to cover her blatantly
illegal action of jailing Appellant intentionally on the basis of her Occupy Asheville
8 In addition to mental health and reputation damages, Appellant can show at trial that Fisher's perjury
is the proximate cause of her NC law license being administratively suspended December 2013, her
inability to work to date, the resulting State Bar disciplinary proceedings and failure to effectively
reinstate her license. While the result of the disciplinary proceedings is not dependent on Fisher
perjury, as the legal question is whether the Magistrate Office in the BCDF is a 'tribunal' for ethics rules
purposes, her perjury led to the disciplinary charges being filed and the resulting two-year suspension
of Appellant's license by the Disciplinary Panel after evidentiary hearing, at which Fisher testified, on
July 8, 2016, order forthcoming.
14

work, and that her false testimony was continued retaliation and retribution for her
political activities. The Court erred in finding Appellant's admission to cursing
prevented her from stating a claim and has not properly construed her pro se allegations
under Fed. R. Civ. P. 8.
C.

Rooker-Feldman

The Court also incorrectly applied the Rooker-Feldman doctrine, asserting that
Appellant was seeking to invalidate her contempt conviction through the instant action:
It appears that Plaintiff seeks to present a collateral attack on the
state court proceeding itself. More precisely, Plaintiff claims she
was wrongfully convicted of contempt due to Fishers alleged
perjury, and that Plaintiff's federal action brought in this Court is
her effort to right that wrong. Construed in this manner,
Plaintiff's claim is clearly controlled by the Rooker-Feldman
doctrine and this Court is without subject matter jurisdiction to
entertain such claim. (Docket 60 at 30).
Nothing could be further from the truth. Appellant seeks damages, not from the
conviction, which has been overturned, but the proximate resulting damage from Fisher's
perjury, including the scathing condemnation by the Court of Appeals, resulting State
Bar disciplinary action, suspension of her license, and failure of the State Bar to reinstate
her license and her inability to work. Mental health, economic and reputation damages
have clearly resulted from Fisher's false account of the night of 11/5/11, that continue to
this day.
The Rooker-Feldman doctrine is confined to cases that are [1] brought by statecourt losers [2] complaining of injuries caused by state-court judgments [3] rendered
15

before the district court proceedings commenced and [4] inviting district court review
and rejection of those judgments. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 284, 125 S. Ct. 1517, 1521-22 (2005). Pursuant to Rooker-Feldman, federal
courts cannot exercise jurisdiction over a case that is the functional equivalent of an
appeal from a state court judgment. Id.
Nothing of the sort exists here. The conviction was reversed. Appellant is not
seeking federal court review of the contempt conviction. Appellant is at a loss to
understand why the District Court would apply Rooker-Feldman when in fact she was a
state court 'winner,' rather than state court 'loser.' It just does not make sense.
Appellant is not inviting federal court review of the vacated contempt conviction,
nor is she complaining of injuries as the result of the conviction. She is seeking relief
from obvious and blatant civil rights violations. Rooker-Feldman has no application.9 10
Remand for trial is required on perjury claims, as Fisher has waived her defense of
9 The Court also somehow suggested Heck v. Humphrey could be applied to dismiss the perjury
claim, despite the fact that the contempt conviction was reversed by the North Carolina Court of
Appeals. The Court declined to so apply in light of it's application of Rooker-Feldman. (Docket 60 at
31-32 n.8). This assertion is absurd- Fisher failed to provide Appellant the opportunity to respond
before imposing contempt. Such is the only due process safeguard, which is an element of the offense.
This Court should likewise refuse to apply the Heck doctrine, as it also has no application in this case.
10 To the extent the Court was referring to Appellant's North Carolina State Bar proceedings, which
does not appear to be the case, such is untenable. The Rooker-Feldman doctrine applies only when the
state court proceedings ended before the federal action was filed. Nicholson v. Shafe, 558 F.3d 1266,
1270, 1275 (11th Cir. 2009). Here, the State Bar acted in July 2016, with it's order not yet final at the
date of this filing, of which Appellant intends to appeal. State proceedings have not ended for
purposes of Rooker-Feldman when an appeal from the state court judgment remains pending at the time
the Appellant commences the federal court action Id. at 1279. Moreover, as Appellant did admit to
cussing, the State Bar finding dust not rest upon Fisher's perjury, but the legal definition of 'tribunal,'
under either version of facts. Thus, Appellant is not seeking to invalidate the State Bar disciplinary
finding, which is not final.
16

witness immunity and Appellant has otherwise stated a claim.

II.

Fisher is not Entitled to Judicial Immunity upon Administrative Warrant Check

The District Court also incorrectly granted Fisher judicial immunity for her acts of

illegally detaining Appellant upon a 'warrant check' for Occupy Asheville members. The
District Court observed:
It is well settled that state court magistrates are entitled to
judicial immunity for actions that they take in their judicial
capacity. King v. Myer, 973 F.2d 354, 356 (4th Cir. 1992)
(Magistrates are judicial officers, and are thus entitled to
absolute immunity under the same conditions as are judges.);
Pressly v. Gregory, 831 F.2d 514, 517 (4th Cir. 1987) (As
judicial officers, magistrates are entitled to absolute immunity
for acts performed in their judicial capacity.).
As the Supreme Court found in Stump v. Sparkman, 435 U.S. 349, 362 (1978), the
determination of a 'judicial act,' considers whether the act entails discretionary decisions
involving the exercise of legal judgment, and also considers whether the parties
understand they are before a judge in their judicial capacity.
This matter did not arise out of any proceeding before the magistrate seeking to
resolve a dispute between parties, as is normally the case when immunity is granted.
See Mireles V. Waco, 502 U.S. 9, 12 (1991); Richman v. Sheahan, 270 F.3d 430, 436-37
(7th Cir. 2001). This matter did not arise out of any acts performed in a judicial capacity.
Instead, Appellant went to the Magistrate office for a 'warrant check' on behalf of
Occupy protesters in general. She was not representing any party, and was not present
on any pending matter before any court. She simply went to the office to ask for a list of
17

outstanding warrants for Occupy protesters. Fisher's answer? It is office policy not to
provide such information. Appellant left the building and was then summarily held in
contempt of court outside her presence, despite the fact no court proceeding or judicial
process was invoked.
The District Court found Fisher was performing a 'judicial act' upon a warrant
check, as part of her duties to issue arrest warrants:
North Carolina empowers magistrates, among other things, to
issue arrest warrants valid throughout the State, and upon the
arrest of a defendant, to conduct an initial appearance and make
bail determinations in non-capital matters. N.C. Gen. Stat.
7A-273(3), (5), & (7). North Carolina courts have found that a
magistrate performs a judicial act when she issues a warrant.
State v. Matthews, 270 N.C. 35, 39, 153 S.E.2d 791, 795
(1967); Foust v. Hughes, 21 N.C. App. 268, 270, 204 S.E.2d
230, 231 (1974). See also, Timmerman v. Brown, 528 F.2d 811,
81314 (4th Cir. 1975) (South Carolina magistrate is entitled to
judicial immunity for his acts in issuing, or failing to issue,
criminal arrest warrants). To state the obvious, the exercise of
judicial power is a prerequisite to the issuance of a valid
warrant. Matthews, 270 N.C. at 39, 153 S.E.2d at 795.
In this matter, upon introducing herself to Defendant Fisher,
Plaintiff alleges that she said, I came to find out what the hell
was going on with APD arresting Occupy protesters for
marching without a permit. [Doc. 1 at 3]. Defendant was
officer responsible for issuing arrest warrants. It is undisputed
that Plaintiff asked Defendant Fisher how many warrants were
outstanding and whether there was any procedure for Occupy
protesters to turn themselves in. [Plaintiff] inquired whether
there was a list of of [sic] protesters that were subject to arrest.
[Id.]. The Complaint thus references statements made by
Plaintiff to the magistrate, and the magistrates acts taken in
response thereto, in connection with the magistrates power to
issue warrants or conduct initial appearances should persons
18

subject to arrest turn themselves in. Accordingly, Plaintiffs

allegations establish that both prongs of the first factor are met.
Based thereon, this Court concludes that Defendant Fisher was
performing judicial acts as a magistrate when Plaintiff
approached her November 5, 2011. (Docket 60 at 27-28).
Without doubt, had Appellant approached Fisher seeking the issuance of a
warrant, judicial immunity would apply as issuing a warrant is a judicial act involving
the exercise of judicial discretion. A warrant check, however, is the administrative side
of the Magistrate's power to issue warrants. It is a simple request for the Magistrate to
search the computer database.11
That is exactly what Fisher did upon asking Appellant if she wanted Fisher to
check to see whether Appellant had any outstanding warrants. Despite the fact that
Appellant told Fisher such would not be necessary, because she was not part of the
march at issue, Appellant said 'ok,' and Fisher searched the computer database using
Appellant's name and birth date, finding no warrant. Searching a computer database
does not require the exercise of judicial discretion.
Fisher stated it was office policy not to provide lists of outstanding warrants; thus
conclusively demonstrating the lack of any exercise of discretion on her part. Such is
precisely why Appellant grew frustrated and cursed as she exited the office--because
Fisher had not exercised discretion to help bring about a peaceful resolution to a
ridiculous situation (police arresting peaceful protesters in their homes based on
11 Contrary to the District Court's inclusion, Appellant was not seeking the assistance of the Magistrate
to have anyone specific person 'turn themselves in' She simply was seeking a list of outstanding
warrants.
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videotape from a march days earlier).

Absolute immunity does not protect administrative or ministerial functions not
requiring the exercise of discretion. See Brown v. Griesenauer, 970 F.2d 431, 436 (8th
Cir. 1992). 'Judicial acts' to which absolute immunity applies are those involving the
performance of a function of resolving disputes between parties or adjudicating private
rights. See e.g. Snyder v. Nolen, 380 F.3d 279 (7th Cir. 2004); Arkinson-Baker v.
Associates, Inc. v. Kolhs, 7 F.3d 1452 (9th Circ. 1993). For purposes of judicial
immunity, each act must be examined to determine if it was a function normally
performed by a judge and if the parties were dealing with the judge in his or her judicial
capacity. See Martinez v. Winner, 771 F.2d 424 (10th Cir. 1995).
Clearly, Fisher was not empaneled as a 'judge,' adjudicating rights between any
parties. No underlying case exited. No jurisdiction of any judicial official was invoked.
No judicial relief was sought. Looking up warrants in a computer or file database is not
the sort of function normally performed by actual judges. Rather, such function is
performed by court employees in an administrative capacity. This was an
administrative, not a judicial, act to which judicial immunity does not apply.
Appellant has not been able to find any case law regarding warrant searches or
anything comparable. The issue appears to be one of first impression.
Importantly, Appellant had absolutely no understanding she was appearing before
any sort of official with the power of contempt, and no one, including the arresting

20

officers, knew what the charges were. After being arrested and brought before the
magistrate confined inside the BCDF, Appellant told the Magistrate she did not believe
she was a' judge,' and asked for proof of her judicial authority, which was not produced.
(Docket 1 at 40-41).
Appellant had no notice of either the possibility of contempt, nor the actual
imposition of the contempt judgment until after she had been arrested and summary
convicted. The reason Appellant had no notice is because she was not appearing in any
'court' setting. The area in the bottom of the BCDF is an office, not a courtroom where
adversarial parties meet. Appellant did not present herself that night seeking any sort of
judicial relief from the Magistrate. She simply went to ask an administrative question,
that could have been handled over the phone.
The District Court found that because Magistrate's are granted the statutory power
of contempt, she acted within her jurisdiction:
The second factor in analyzing judicial immunity is whether
Defendant Fisher acted in the clear absence of jurisdiction.
Under North Carolina law, magistrates are judicial officers.
Bradshaw v. Admin. Off. of the Courts, 320 N.C. 132, 357
S.E.2d 370 (1987). The North Carolina legislature has
prescribed by statute many of the functions authorized to be
performed by magistrates, most of which require independent
judgment by a judicial officer. N.C. Gen. Stat. 7A-273.
Significantly, the legislature has granted magistrates contempt
power. N.C. Gen. Stat. 7A-292(2). Accordingly, Defendant
Fisher was not acting in the clear absence of jurisdiction when
she held Plaintiff in criminal contempt. The fact that Plaintiffs
contempt conviction was later vacated by the North Carolina
Court of Appeals due to a legal error does not improve the
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Plaintiffs position. Plaintiffs entire encounter with Defendant

Fisher was undertaken in connection with Fishers role as a
judicial officer within the subject matter jurisdiction accorded
magistrates by the State and she is thus entitled to immunity for
her acts taken thereby. In fact, Plaintiffs advocating to the
Court of Appeals that Defendant Fisher had committed a legal
error is a concession that Defendant Fisher was acting in some
sort of judicial capacity to make that legal error in the first
place. Accordingly, Plaintiffs fifth objection that the M&R
erroneously concludes that Defendant Fisher is entitled to
absolute judicial immunity is overruled. (Docket at 28-29).
As Magistrates wear different hats, there obviously is a line somewhere as to their
contempt power. Under the District Court's logic, a Magistrate would have the ability
to jail someone appearing before her as a wedding officiant who cursed and disrespected
her? Because warrant checks are routinely done by attorneys over the phone, under the
District Court's reasoning, someone could be found guilty of contempt if they cursed
over the phone at a Magistrate upon a warrant check? Certainly not in either instance,
precisely because no 'court' was in session. There mere listing of contempt as a
statutory power of the Magistrate is insufficient to find that a Magistrate has such power
as a matter of law. The question is whether judicial process or court proceedings are
invoked to give rise to subject matter jurisdiction to impose contempt of court.
Appellant contends, in what also appears to be a matter of what appears to be first
impression, a North Carolina Magistrate's power of contempt exists only when judicial
process has been invoked, such as upon application for an arrest warrant, and does not
exist in situations such as this that are purely ministerial. Because there was no

22

underlying proceeding and Appellant did not invoke any judicial process, Fisher acted in
the absence of all jurisdiction by summarily convicting her of contempt of court, outside
of her presence and without any warning. Cf. Stern v. Mascio, 262 F.3d 600 (6th Cir.
2001) (court acted within jurisdiction, and thus was entitled to immunity, when
sentencing attorneys to contempt, as underlying case conveyed subject matter
jurisdiction). No basis for subject matter jurisdiction existed to impose contempt of
court.
Additionally, Fisher exercised no discretion in this illegal act: she did not follow
any portion of the statute setting forth procedural and substantive due process
requirements, and she disregarded all legal requirements in failing to conduct a bond
hearing, imposing an illegal cash-only bond, and failing to release Appellant upon the
filing of her notice of appeal. Fisher admitted that she acted intentionally to ensure that
Appellant would not be released from custody so that she would not be able to return to
the Occupy Camp. (Docket 1, Exh 1, Superior Court Transcript at 37-38). These are
clear civil rights violations that fall outside the purview of judicial immunity.
The point in this case, unlike most others, is that Fisher is not a judge; she is an
officer of the state district court that wears different hats. While a functional analysis is
appropriate, in this case it is clear-- Fisher was performing only an administrative
function. Such was sole the basis upon which Appellant visited the Magistrate office.
These were not judicial acts, and the Magistrate lacked jurisdiction to impose contempt

23

of court, without any court proceedings invokes. Judicial immunity does not apply.
Qualified, rather than absolute, immunity is the proper standard of review for this
matter. However, as noted, Fisher asserted only judicial immunity in her Motion to
Dismiss (docket 41); qualified immunity has thus been waived, see Fed. R. Civ. P. 8(c);
12(g), (h) . Remand is required for trial.
III.

Improper Dismissal of Supervisory Liability Claim Against Defendant Hill

The District Court dismissed Appellant's supervisory liability claim against

Defendant Hill finding, without citation of any authority, District Court Judges do not
serve a supervisory function over the officer's of their Court other than to address
Petitions to Remove Magistrates. The Court pointed to the Administrative Office of the
Courts as the training entity. (Docket 60 at 32-34).
Appellant has no way of knowing whether the Court is correct that Chief District
Court Judge exercises no supervisory authority over Magistrates, who are officers of the
District Court. Someone must have supervisory control on a day to day level. Appellant
contends discovery would reveal this function lies with the Chief District Court Judge,
Hill, and contends it is not been shown Appellant can prove no sets of facts in support of
her supervisory liability claim so as to warrant dismissal under Rule 21(b)(6).
IV.

Denial of Declaratory Relief

The Court declined Appellant's request for declaratory relief as follows:
The Declaratory Judgment Act provides that in a case of actual
controversy, district courts may declare the rights of interested
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parties. 28 U.S.C. 2201(a). However, as noted, the district

courts authority to entertain declaratory judgment cases is
discretionary. In fact, the Fourth Circuit has cautioned that
district courts should only do so in the following
circumstances: (1) when the judgment will serve a useful
purpose in clarifying and settling the legal relations in issue,
and (2) when it will terminate and afford relief from
uncertainty, insecurity, and controversy giving rise to the
proceeding. United Capitol Ins. Co. v. Kapiloff, 155 F.3d 488,
493 (4th Cir. 1998); Aetna Cas. & Sur. Co. v. IndCom Elec.
Co., 139 F.3d 419, 422 (4th Cir. 1998) (district courts have
great latitude in determining whether to assert jurisdiction over
declaratory judgment actions). Neither of these factors will be
met by this Court continuing to exercise jurisdiction over
Plaintiffs request for such declaration. All other claims are
being dismissed Plaintiff states no cognizable claims.
Moreover, since the Court is dismissing Plaintiffs claims
against Defendant Fisher for want of subject matter
jurisdiction, it is very questionable whether this Court would
have jurisdiction to declare Defendant Fishers actions
unconstitutional. Hence, the Court, in its discretion will decline
to entertain this declaratory judgment claim. (Docket 60 at 4344).
As set forth above, the District Court erred in applying Rooker-Feldman,
dismissing the action upon sua sponte application of witness immunity and in dismissing
for failing to state a claim for perjury. As the case requires remand, declaratory relief
should be available to Appellant. At a minimum, declaratory relief would serve to
clarify and settle the legal relationship between Appellant and Fisher, and clear
Appellant's tarnished name. Reputation damages have been extensive as the result of
Fisher's unconstitutional actions. Declaratory relief from such actions is, the minimum
relief Appellant seeks.12
12

Appellant abandons her remaining claims for injunctive relief.

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V.

Reassignment of District Court Judge Upon Remand

On remand, Appellant would ask for reassignment of judges, as Judge Reidinger

has exhibited clear animosity of Appellant as a pro se unlicensed attorney, has failed to
properly construe her complaint, and has not taken her allegations as true as required by
Rule 12.
For example, upon denying her Rule 59(e) Motion, the Court chided Appellant for
failing to cite case law within her Motion, and concluded with the following:
As a final matter, it is noted that this entire dispute began when
the Plaintiff, a lawyer, entered the office/courtroom of a North
Carolina state magistrate and behaved in a most unlawyerly
manner. Appellants current motion demonstrates that she has
yet to learn how to behave in a lawyerly way. (Docket 67).
These comments reflect obvious bias against Appellant as a pro se, now
unlicensed, attorney Plaintiff. Appellant presented her objections to the Court's
dismissal order in a logical, cogent manner. Her largest complaint was the Court's sua
sponte application of witness immunity, which the Court completely ignored.
Appellant does not have access to online legal research and the nearest law library
is three hours away. This Court's pro se instructions specifically state citation to case
law is not required, and Appellant certainly did not think she had to instruct the Court on
the proper standard of review for reconsideration.
The District Court appears to misunderstand that Appellant is not appearing
before the Court as an attorney, but as a pro se Plaintiff, a Plaintiff who has suffered

26

greatly as the result of the civil rights violations alleged therein. This is profound error.
As noted, Appellant sought relief upon the statute of limitations to the best of her ability,
and thereafter filed proper Amended Complaints consolidating claims. Through the
litigation, the Court has expressed disdain at Appellant's pro se errors on the basis of her
prior experience as an attorney. In do so, the Court fails to appreciate or account for the
severe stress this litigation, as well as more than four years now of facing Fisher's
perjured account, and it's resulting State Bar consequences, has caused to Appellant.
`

In fact, by writing that, Appellants current motion demonstrates that she has yet

to learn how to behave in a lawyerly way, the Court engages in a mean-spirited attack
on Appellant that directly triggers her PTSD. It is as if the Court, at every turn possible,
is affirmatively attempting to hurt and harm Appellant personally due to the Court's
displeasure of her as a pro se, now unlicensed, attorney. This is not the function of a
District Court Judge. Moreover, the gratuitous comment that Appellant behaved in a
most unlawyerly manner in the Magistrate office indicates that the Court has not
accepted Appellant's allegations as true, as required by Rule 12, but has instead accepted
the perjured version of events put forth by Fisher. At minimum, it displays a conscious
attempt by the Court to denigrate and insult Appellant.
Appellant believes reassignment is warranted as the Court has failed to afford
Appellant proper construction and treatment as a pro se party and has exhibited express
disdain for her, and her allegations, as an unlicensed pro se attorney Plaintiff.

27

Relief Requested
Wherefore, Appellant requests that this Court REVERSE the March 9 Order
dismissing her 1983 action as to Appellees Fisher and Hill, and REMAND for trial.
Appellant also requests that the Court REASSIGN the presiding District Court Judge on
remand.
Respectfully submitted, this the 29th day of August, 2016.13

_________________________________
Jennifer Nicole Foster, Pro Se
259 Westover Alley
Asheville NC 28801
Telephone: (828) 407-6588
Email: fosterthejen@hotmail.com

13 Appellant does hereby certify her brief meets the standards set forth in Rule 28 regarding Briefs. She
has never appeared before in this Court.
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CERTIFICATE OF SERVICE
This is the certify that she served the following Appellant's Informal Opening Brief by
depositing a copy of same with the United States Postal Service, first class postage
prepaid and addressed as follows:
Grady L. Balentine, Jr.
Attorney for Defendant Fisher
Special Deputy Attorney General
North Carolina Department of Justice
P.O. Box 629
Raleigh NC 27602-0629
Curtis William Euler
County of Buncombe
Legal Department
200 College Street, STE 400
Asheville, NC 28801

This the 29th day of August, 2016.

_________________________________
Jennifer Nicole Foster, Pro Se
259 Westover Alley
Asheville NC 28801
Telephone: (828) 407-6588
Email: fosterthejen@hotmail.com

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