UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JENNIFER NICOLE FOSTER, ] CASE NO. 16-1792

Appellant, ]
] APPELLANT'S
th
AMANDA FISHER, Magistrate, 28 Judicial District, ] PETITION FOR
State of North Carolina, ] PANEL & EN BANC
in her official and individual capacities, ] REHEARING
]
JACK VAN DUNCAN, Sheriff, Buncombe County, ]
North Carolina in his official and individual capacities ]
]
DOE BUNCOMBE COUNTY SHERIFF DEPUTY ]
NUMBER ONE, in his official and individual capacities ]
]
th
CALVIN HILL, Chief District Court Judge, 28 Judicial ]
District, State of North Carolina, in his ]
official and individual capacities ]

Appellant, pro se now re-licensed attorney,1 seek Rehearing from either the

Panel or the Court sitting en banc,2 of the following three issues, two of which

appear to be matters of first impression nationwide.

I. INTRODUCTORY REHEARING STATEMENTS

1. Application of Judicial Immunity to Magistrate Fisher

1 Appellant's law license was finally reinstated by the NC Bar November 3, 2016, after they
agreed to lift the condition that she abandon her appeal to the North Carolina Court of Appeals
that the magistrate office does not constitute a 'tribunal' for State Bar purposes. Appellant's
Opening Brief in the North Carolina Court of Appeals is due at the end of June. Appellant in
no way seeks to challenge these state court actions in this federal suit.
2 The Petition is timely adding three days after service of the judgment. Appellant believes it
proper to combine requests for rehearing before the Panel and the Court en banc. If not
possible to file both, Appellant would ask this Petition to request en banc review.

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 The Panel's application of judicial immunity conflicts with a decision of the

United States Supreme Court, namely Stump v. Sparkman, 435 U.S. 349 (1978), as

to whether Appellant dealt with Magistrate Fisher in her judicial capacity, a

required finding before granting judicial immunity to quasi-judicial actors. The

Panel completely ignored this element of the analysis. Appellant was not dealing

with Fisher in her judicial capacity when asking for a computer database warrant

check. This case appears to be one of first impression and is of utmost importance,

as it demonstrates the improper outer reaches of applying a functional judicial

immunity to quasi-judicial actors not acting in a judicial capacity.

2. Dismissal of Perjury Claims for Failure to State a Claim for 1983 Relief

The Panel sua sponte dismissed Appellant's perjury claims, summarily

finding she had failed to state a claim. Upon further research, the District Court and

Panel should have construed Appellant's pro se perjury allegations3 as asserting

claims of constitutional defamation, also known as stigma plus, which has been

alleged if properly construed as a deprivation of her First Amendment rights as a

local activist leader. The Panel therefore overlooked material legal and factual

matters. Fisher's waiver of her absolute witness privilege renders this an important
3 At the time the action and amended complaint where filed, Appellant was fully disabled due to
mental health issues and was an unlicensed, administratively suspended attorney, as the result
of the events herein. She is as pro se as they come and has no access to Westlaw or Lexis.
Appellant respectfully observes that both the District Court and the Panel have failed to afford
proper pro se construction as Appellant has a law degree. Remand is warranted upon proper
pro se construction as seen herein. Appointment of counsel, as requested could aid the Court
should it wish further briefing. Appellant suffers PTSD at all stages of interaction with these
legal matters.

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matter of first impression, as well as an important application of the doctrine of

constitutional defamation to First Amendment deprivations.

3. Dismissal of Declaratory Relief

The Panel overlooked clear facts in finding that Appellant had not shown

equitable relief was needed to resolve any uncertainty, insecurity, and controversy.

Magistrate Fisher is not subject to election, supervision of any ethics standards or

commissions. If judicial immunity is applied, Appellant has no other means to

resolve this controversy and restore her good name. If immunity is applied,

declaratory relief would be the only means left to do so.4

II. ARGUMENTS FOR REHEARING

1. Judicial Immunity

The Panel applied judicial immunity finding After review of the record, we

conclude that Fisher was performing a judicial act, and that she did not act in the

clear absence of all jurisdiction, as she was exercising her statutorily-authorized

contempt power. (Opinion at 4).

Stump v. Sparkman, however, requires an additional element ignored by the

Panel-- that the parties were interacting with the quasi-judicial actor in their

judicial capacity. Liles v. Regan, 804 F.2d 493 (8th Cir. 1986) is instructive.

4 Appellant approached the Buncombe County District Attorney's Office and asked that perjury
charges be brought against Magistrate Fisher. The Office declined, noting the rarity of perjury
prosecutions. Appellant has no other available relief to clear here good name, other than this
federal suit.

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There, the Eighth Circuit applied judicial immunity upon finding that the parties

interacted with the judge that imposed contempt in his judicial capacity by bringing

a motion to recuse:

In order to determine whether an act by a judge is

"judicial," the Supreme Court has instructed us to consider
whether the act is a function normally performed by a
judge and whether the judge was interacting with the
complaining party in a judicial capacity. See Stump v.
Sparkman, 435 U.S. at 360, 98 S.Ct. at 1106; White v.
Bloom, 621 F.2d 276, 280 (8th Cir.1980). In this case, both
factors indicate that Judge Reagan's actions were judicial
acts. Holding contempt proceedings, finding a party in
contempt, and ruling on a motion for recusal are all acts
normally performed by a judge. Compare, White v.
Bloom, 621 F.2d at 280 (permitting jury to be impaneled
without the presence of the defendant held a judicial
act) with Gregory v. Thompson, 500 F.2d 59, 64 (9th
Cir.1974) (assault not a judicial act). Moreover, in
appearing before the judge in the contempt proceedings
and in bringing the motion to recuse, the appellants
were clearly interacting with Judge Reagan in his
judicial capacity.

Id. At 495 (emphasis added).

In this case, however, Appellant was not before Fisher on any motion,

underlying adversarial matter, or seeking any sort of judicial relief. Fisher did not

conduct any contempt proceedings but summarily jailed Appellant without notice or

opportunity to respond, the basis for reversal by the North Carolina Court of

Appeals. Had Appellant appeared seeking the issuance of a warrant, Fisher would

have been acting in her judicial capacity. Appellant, however, only approached

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and dealt with Fisher in her administrative capacity, asking her to run a warrant

check in the computer database for Occupy protesters.

Fisher was not acting in any sort of judicial capacity at the time she illegally

jailed Appellant. Appellant has not located any case law such as this; all cases

appear to involve underlying adversarial proceedings or some request for judicial

relief, as noted in the Liles case above.

Stump v. Sparkman sets forth a functional analysisabsolute immunity will

apply regardless of the title of the actor if the actor performs a judicial act while

acting in their judicial capacity. Applying judicial immunity to a quasi-judicial

actor who arguable performs an judicial act (contempt), but not while the parties

are interacting with them in their judicial capacity, does not invoke policy

concerns to protect the ruling of judges.

As noted, the Panel ignored this aspect of the test and applied judicial

immunity, finding that the magistrate was exercising her statutory power of

contempt. Under the Panel's logic a magistrate would be entitled to absolute

judicial immunity if she summarily convicted someone she was marrying of

contempt? Such a result is preposterous and demonstrates the danger of extending

judicial immunity to acts done while not acting in a judicial capacity.

Absolute judicial immunity does not apply because Appellant did not

interact with Fisher in her judicial capacity. Qualified immunity has been waived.

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Rehearing and remand is required upon this important issue of what appears to be

first impression.5

2. Dismissal of Perjury Claims for Failure to State a Claim for 1983 Relief

The Panel dismissed Appellant's perjury claims, summarily finding she had

failed to state a claim: we agree with the district court that Foster has failed to

articulate how the alleged perjury amounts to a viable civil rights claim. (Opinion

at 3).6

Appellant has discovered upon additional research, however, that her pro se

allegations state a claim under the doctrine of constitutional defamation,

defamation plus, or stigma plus, as set forth in Paul v. Davis, 424 US 688

(1976). It does not appear that the Fourth Circuit has considered this doctrine

outside of the employment context.

The Paul Court held that stigma or defamatory harm to reputation in itself was

insufficient to create a liberty interest. [W]e do not think that such defamation,

standing alone, deprive[s] any liberty protected by the procedural guarantees of

the Fourteenth Amendment. Id. at 709. But it said that stigma, plus an alteration in

legal status would implicate a liberty interest. Thus, a 1983 action may lie if the

5 To the extent the Court believes there may be questions of fact as to whether Appellant was
interacting with Fisher in an administrative or judicial capacity, remand is required for
consideration at the summary judgment stage.
6 The district court found that Appellant disputed the number of times cursed, and that her cursing
precluded her from being able to state a claim for relief. (District Court Order at 32). The Panel
did not address Appellant's arguments in this regard.

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defamation results in the loss or alteration of a constitutionally protected interest.

Appellant is not asserting on appeal any denial of property interest in her

ability to work as an attorney, nor the resulting consequences of Fisher's perjury

leading to the State Bar disciplinary action, despite such allegations below.

Appellant's pro se allegations below, however, do in fact state a claim for

relief for Stigma Plus Constitutional Defamation based on changed legal status

upon conviction for contempt depriving her of First Amendment rights to Speech

and Association.

Fisher testified at trial that she intentional held Appellate without bond to

ensure she would not be released, so that she would not return to the Occupy protest

campsite. It is beyond dispute that Fisher had admitted a First Amendment

Association deprivation from the contempt conviction and illegal cash bond.

Fisher's false testimony at trial was designed not only to cover up her illegal

civil rights violations, but also to defame Appellant as a local activist leader. Fisher

was quite aware from the pleadings and trial, that Appellant was the attorney

founder of the Occupy Asheville movement. Her false testimony at trial was

designed to disparage Appellant as a leader of the group, as well as the Occupy

movement as a whole. The intent and effect of her false testimony thus impacted

Appellant's future credibility and effectiveness as a local activist and political

leader, thus, impacting her ability to engage in future protected political activity.

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Fisher's false testimony had the intended effect of impeding Appellant's future

association with the Occupy group, as was her expressed intent.

Appellant has not been able to locate any cases such as this, likely because

they are not brought due to witness immunity. Appellant, however, has stated a

stigma plus claim. Fisher's actions and false testimony were egregious and

intended to defame and stigmatize Appellant as a leader in the local activist

community and deprive her of full speech and association rights in the future.

Appellate made the following relevant allegations in her initial complaint (doc

1), which was incorporated into her Second Amended Complaint (doc ):

8. Plaintiff alleges that Defendant Fisher violated her First Amendment Rights
of Speech, Political Association and Assembly, as well as violated her Eighth
Amendment and Due Process rights, by summarily convicting her of
contempt without statutory due process, refusing to hold a bond hearing, and
falsely imprisoning Plaintiff by imposing an illegal cash-only bond on
appeal, for the express purpose, as she testified during the Superior Court
trial, to ensure that Plaintiff would not be released from jail over the weekend,
so she would not return to the Occupy Asheville protest site.

9. Plaintiff founded the Occupy Asheville grassroots political movement as

it's activist attorney leader, and it is asserted that Defendant Fisher acted
both in retaliation for such protected First Amendment activities, as well
as in a conscious intentional effort to stop Plaintiff from exercising those
rights in the future. Plaintiff's summary contempt conviction, resulting
detention and all additional collateral effects of Defendant Fisher's intentional
actions have caused Plaintiff extensive damages, both professionally and
personally, which continue to this day.

10. It is additionally alleged that Defendant Fisher committed material perjury

during the trial de novo in Superior Court, false testimony which is being
currently used as the basis of North Carolina State Bar disciplinary censure
proceedings against Plaintiff, which is scheduled for February 2015.

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61. Defendant Fisher testified at trial de novo that Plaintiff repeatedly
cursed after specifically being warned not to do so as an attorney present in
a magistrate judge courtroom. Defendant Fisher testified that Plaintiff
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 fourth time. She testified that she asked Plaintiff to leave
after cursing the second or third time. Defendant Fisher testified that
expressly stated to Plaintiff that she was holding her in contempt after she
cursed the third time, and told Plaintiff to stop and return to the magistrate
window because she was being held in contempt of court, but Plaintiff
exited the office. (See Superior Court Transcript and N.C. Court of Appeals
opinion).

62. Defendant Fisher further testified that she instructed officers to bring
Plaintiff back to the magistrate office because she was being held in
contempt of court.

63. Plaintiff contents that the entirety of this testimony constitutes false,
actionable material perjury causing extensive ongoing damage. (Complaint,
Doc. 1).

66. The Court of Appeals' opinion relied entirely upon the uncorroborated false
testimony of Defendant Fisher, which Plaintiff contends is patently false.

67. The State Bar of North Carolina currently has disciplinary proceedings
pending against Plaintiff based solely on the uncorroborated testimony of
Defendant Fisher regarding this matter, even though Plaintiff's conviction has
been overturned. Plaintiff's State Bar disciplinary hearing, although limited to
censure, is pending for February 2015, and has caused extensive increased
damages and continuing personal and professional trauma, as a proximate and
direct cause of Defendant Fisher's intentional actions. Plaintiff's law license and
her ability to work as an attorney remains suspended, until this matter is
resolved.

72. Regarding the subsequent prosecution upon trial de novo in Superior

Court, Plaintiff additionally contends that Defendant committed
perjury while testifying under oath in order to retaliate and deny the
exercise of Plaintiff's First Amendment rights, in violation of 42
U.S.C. 1983.

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73. As stated and incorporated herein, Plaintiff contends the entirety of the
following testimony to be intentionally false and materially perjurous:

Defendant Fisher additionally testified that Plaintiff repeatedly

cursed after specifically and repeatedly being warned not to do so
as an attorney present in a magistrate judge courtroom. Defendant
Fisher testified that Plaintiff 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 fourth
time. She testified that she asked Plaintiff to leave after cursing the
second or third time. Defendant Fisher testified that expressly
stated to Plaintiff that she was holding her in contempt after she
cursed the third time, and told Plaintiff to stop and return to the
magistrate window because she was being held in contempt, but
Plaintiff exited the office. (See Superior Court Transcript and N.C.
Court of Appeals opinion). Defendant Fisher further testified that
she instructed officers to bring Plaintiff back to the magistrate
office because she was being held in contempt.

74. Plaintiff contents that the entirety of this testimony constitutes false,
actionable material perjury causing extensive ongoing damage.

80. Plaintiff has suffered extensive damages from her illegal confinement that
continue to the present day. Damages, which will be proved by sufficient and
clear legal evidence, include, but are not limited to the following:

-loss of income
-destruction of legal career
-suspension of law license and pending state bar disciplinary
proceedings
-loss of professional opportunity
-defamation
-severe reputation damages
-damages from extensive unfavorable media coverage, including
Plaintiff's mugshot appearing on the cover of USA Today
-severe ongoing mental health damages
-ongoing physical trauma and resulting injury to left shoulder upon
arrest
-severe ongoing estrangement from Plaintiff's family

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 -estrangement from Plaintiff's father, who died suddenly in 2012
after having cut off contact with Plaintiff due to the embarrassment
of her arrest and resulting media coverage.

82. Plaintiff continues to suffer ongoing mental health and economic damages
as the result of Defendants' unconstitutional actions.

Appellant alleged the following regarding perjury in her Second Amended

Complaint:

2. Plaintiff has stated a claim against Magistrate Fisher for violations of

her civil rights for her false arrest, conviction and illegal detention, as well as
material perjury and false testimony, as alleged in the initial complaint,
which Plaintiff states where malicious and intentional acts in retaliation
for her First Amendment activity as an attorney with the Occupy
Asheville movement, as shown by the record evidence submitted. (See
Complaint, Doc. 1, Exhibit A, Superior Court Transcript at 36-38).

13. Plaintiff additionally asserts that the doctrine of qualified immunity also
does not apply in this case, as perjury in a criminal proceeding violates
clearly established law, of which any reasonable person would be aware.
Defendant Fisher, under oath, intentionally gave false testimony designed
to uphold her actions of that night, and falsely convict Plaintiff a second
time, in retaliation for her protected First Amendment political activities
during the Occupy Movement. Committing material perjury to falsely
convict violates clearly established constitutional law and was done with
malice in this case.

14. The North Carolina Court of Appeals' scathing condemnation of

Plaintiff in this matter was based entirely on the false testimony of Defendant
Fisher, as are the ongoing disciplinary proceedings against Plaintiff by the
North Carolina State Bar, scheduled for February 2015. Defendant Fisher's
perjury in the Superior Court has caused severe, extreme economic
damages for three years, as well as serious mental health damages to
Plaintiff, which will be shown by medical evidence and expert testimony.

Appellant has clearly and expressly alleged that Fisher's false testimony was

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in retaliation for protected activities as the founder and attorney liaison of Occupy

Asheville, and designed to prevent her from exercising a leadership activist role in

the future as protected political activity. She also expressly alleged defamation and

reputation injury.

This situation is somewhat analogous to cases that find stigma plus based

on defamatory statements in conjunction with an unlawful arrest, which will state a

claim for relief. See e.g. Stevens v. Rifkin, 608 F.Supp 710 (ND Cal 1984)

(defamatory statements made by police official in connection with unconstitutional

arrest and prosecution which injured reputation of person about whom statements

are made constitutes deprivation of liberty interest which is actionable under 42

U.S.C.S. 1983).

Fisher's false statements were made in conjunction with her illegal

prosecution and conviction, thus, also implicating liberty interests to not be

convicted by the State under the Fourth, Fifth, Sixth, Eighth and Fourteenth

Amendments.7 Appellant has suffered a change in legal status namely, going

from having no criminal record and no prior arrest, to being convicted of contempt

based on Fisher's false testimony. The loss of Appellant's status as conviction free

impacts her credibility as a activist leader and deprives her of the full exercise of her

political first amendment rights in the future. This was the intent and effect of
7 Although not raised before, Fisher's false testimony also deprived Appellant of her Sixth
Amendment right to receive a fair trial. These issues have never before been raised and thus
are not waived. The error was in the failure of pro se construction.

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Fisher's false testimony-- to defame Appellant as an activist attorney leader, as well

as to defame the Occupy movement as a whole. Cf. Patterson v. Burge, 328 F. Supp

2d 878 (ND Ill 2004) (prosecutors post-conviction defamatory statements not

entitled to absolute immunity and implicate due process rights giving rise to

constitutional defamation claim).

This is an example of stigma plus that has been sufficiently alleged. As the

Court is well-aware, it has a duty to liberally construe pro se allegations. See

Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015) (citing Jackson v. Lightsey,

775 F.3d 170, 178 (4th Cir. 2014)) .

Appellant contends that at each stage her pro se allegations have not been

liberally construed. She would like to remind the Court that she was unlicensed

attorney at all times relevant to this action below, which the District Court

erroneously failed to acknowledge as it castigated her pleadings below as an

attorney. Appellant's law license was only reinstated in November 2016 and

conditioned upon quarterly mental health reporting. Fisher's illegal jailing of

Appellant and her subsequent false trial testimony rendered Appellant disabled from

the practice of law until after 2015 and has impacted her ability to present this case

at every turn due to PTSD.

Appellant respectfully requests that the Court either sufficiently liberally

construe her allegations and remand for further proceedings, or appoint counsel for

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further briefing on appeal. Appellant status as an attorney activist leader makes this

a stigma plus case as Fisher's false testimony has impacted Appellant future

political leadership, future ability to seek elected office, and ability to effectively

lead as an activist progressive. "The right of an American citizen to criticize public

officials and policies and to advocate peacefully ideas for change is the central

meaning of the First Amendment." New York Times v. Sullivan, 376 U.S. 254

(1964).

The lack of any evidence to support the conviction, as well as Fisher's

complete abdication of the rule of law upon jailing Appellant, demonstrates that her

false testimony was in fact done in retaliation for Appellants protected First

Amendment political activities, and to prevent her full exercise of in the future.

3. Denial of Declaratory Relief

Appellant would just repeat that if judicial immunity is wrongfully applied,

she has no other avenue to restore her good name upon Fisher's perjury. Declaratory

relief is thus necessary to resolve the competing narratives.

Respectfully submitted, this the 3rd day of June, 2017.

_________________________________
Jennifer Nicole Foster
72 Hibriten Dr.
Asheville NC 28801
Telephone: (828) 407-6588

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 Email: fosterthejen@hotmail.com

CERTIFICATE OF SERVICE
This is the certify that she served the following Appellant's Petition for Panel
Rehearing and Rehearing En Banc 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 3rd day of June, 2017.

________________________________
Jennifer Nicole Foster
72 Hibriten Dr.
Asheville NC 28801
Telephone: (828) 407-6588
Email: fosterthejen@hotmail.com

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