error subject to correction under Rule 59(e).

The Court's application of the Rooker-Feldman doctrine demonstrates it has absolutely no

understanding of Plaintiff's claims, or is reaching far and wide to summarily deny them. Contrary to
the Court's finding, that Plaintiff was a 'State Court loser,' trying to collaterally attack her conviction,
Plaintiff was in fact a State Court WINNER. The North Carolina Court of Appeals reversed her
contempt conviction. Plaintiff is not seeking to invalid the contempt conviction, it has already been
invalidated.
Plaintiff has clearly alleged that she is seeking relief for perjury, not only from the false
conviction and detention, but also due to ongoing damages as the sole basis of the State Bar
disciplinary action. The Court, in the March 9 Order, however, held that Plaintiff failed to explain
what Fisher's testimony has to do with the State Bar proceedings, or even what is at issue in the State
Bar proceeding. (Order at 30 fn.5). This is simply not true and amounts to improper construction of
the pro se complaint.
The NC State Bar, in case number 14 DHC 7, has charged Petitioner with disrespecting a
tribunal under Rule 3.5(a)(4)(B), regarding events in the Magistrate Office at the bottom of the
Buncombe County Jail on November 5, 2011. The question is:
By using profanity before the magistrate judge in the magistrates
courtroom, and by continuing to do so after being warned by the
magistrate judge, did Defendant engage in undignified or discourteous
conduct that is degrading to a tribunal in violation of Rule 3.5(a)(4)(B),
and/or did Defendant engage in conduct that is prejudicial to the
administration of justice in violation of Rule 8.4(d).
(emphasis added).
While the precise rule violation was not expressly stated in her pleadings, Plaintiff, proceeding
pro se, alleged the following in the original complaint, emphasis added:
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.

Continuing Legal Repercussions

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.
In the second amended complaint, Plaintiff alleged the following:
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.
Plaintiff's pro se allegation are sufficient to inform the Court of the basis of her claim. The only
logical conclusion from Plaintiff's allegations is that the State Bar initiated disciplinary proceedings
based on Fisher's characterization of the events in the Magistrate office that night, which was precisely

the case. Plaintiff set forth her perjury in detail and stated unequivocally such was the sole basis for
State Bar action. The fact she failed to specify the State Bar rule allegedly violated is of no matter.
The essence was clearly plead and stated.
Quite noticeably, the Court also ignored Plaintiffs clearly plead multiple allegations of perjury
and found that Plaintiff asserted perjury as to only one matter: the number of times Plaintiff allegedly
cursed in the magistrate office. (Order at 32). This also is simply not true. Plaintiff alleged multiple
statements of perjury in the initial complaint, emphasis added:
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.
These allegations assert at least eight instances of material perjury, as stated in the Court of
Appeals opinion's findings adopting Fisher's testimony:
(1) that she told Plaintiff 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 Plaintiff 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 Plaintiff 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 Plaintiff used the F-word as many as five times and that Plaintiff responded by
making additional statements including the word "'fuck', after she checked whether she
had a warrant.
This is not true, Plaintiff used the F word only upon exiting once.
(4) that Plaintiff 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 Plaintiff 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 Plaintiff s 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 Plaintiff 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. Plaintiff was never instructed to come back to the window and 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 Plaintiff was being arrested, could not tell her the
charges and never once uttered to word contempt.
Rather than Fisher's completely exaggerated and false account, Plaintiff 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.' These
are quite different versions of events with material consequences that the Court has chosen to blatantly
ignore.
Plaintiff respectfully observes that the Court's has exhibited clear disdain for her a pro se
unlicensed attorney Plaintiff.1 She requests that the Court re-evaluate it's March 9 Order and properly
evaluate such in light of her true pro se status. Rather than condemn and castigate Plaintiff, the Court
should be mindful of Plaintiff's struggle with PTSD, anxiety and depression, the direct result of
Defendants' actions, and appreciate her complete compliance with all Court rules upon the filing of her
amended complaints.
Plaintiff asserts that the Court's continued unjustified anger towards her as a pro se unlicensed
attorney plaintiff has led to improper construction of her complaint and improper dismissal. Plaintiff
suspects the Court's clear animosity towards her is the result of her Motion to Allow for Pro Se
Electronic Filing and it's anger towards her upon her filing of amended complaints as an unlicensed
1 At all times relevant to the pleadings in this matter, Plaintiff was unlicensed. She reinstated her CA bar license in
December 2015 and seeks reinstatement of her NC license April 2016. The Court fails to note Plaintiff was unlicensed
at all relevant times.

attorney. Such is not the role of the Court addressing pro se pleadings, and, as seen above, amounts to
error subject to correction under Rule 59(e).
Finally, Plaintiff vigorously objects to the Court's finding she failed to state a claim:
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. The only asserts that she did not use profanity quite as
many times as Fisher testified she did. The allegations in Plaintiff's complaint constitutes a
concession of the factual basis for her conviction. For these reasons, Plaintiff has not stated a
cognizable claims regarding Fisher's testimony. (Order at 32)
This finding frankly is ridiculous. There is no concession of the factual basis of contempt.
Lest the Court forget, and contrary to it's completely unsupported factual finding, the Magistrate space
in the bottom of the BCDF is an office, not a courtroom. As clearly plead and unrefuted by any
record evidence, the official www.nccourts.org publication explains the workplace of a magistrate,
aside from Small Claims Court, is not 'a courtroom,' but an 'office.' Magistrates do not preside over a
separate trial division of the General Court of Justice, so technically there is no such court as
magistrates court.2 The bottom of the BCDF is not a courtroom, no matter how many times
Defendants or the Court may claim. Plaintiff is not guilty of contempt of court. Additionally, no one
can be convicted for contempt without first being provided the opportunity to respond; such is an
element of the offense and the reason the conviction was reversed.
Again, the Court completely fails to construe this pro se claim properly. Fisher's rank perjury
not only led to her false conviction, it also led to the scathing condemnation by the NC Court of
Appeals, which then led to false disciplinary prosecution by the NC State Bar that is ongoing. The
Court's dismissal based on the above nonsensical finding that Plaintiff had admitted to cursing in the
magistrate office again demonstrates its clear animosity to Plaintiff as a pro se unlicensed attorney.
Plaintiff has clearly stated a 1983 claim for perjury, despite the Court's activist attempt to sua
sponte apply witness immunity and the Rooker-Feldman doctrine to dismiss the case. These are clear

2 http://www.nccourts.org/citizens/publications/documents/judicialsystem.pdf

reversible errors subject to correction under Rule 59(e).

Judicial Immunity
The Court determined that Fisher was entitled to absolute judicial immunity, even though she is
a quasi-judicial offer of the court with both judicial and administrative duties, because she has the
power to issue arrest warrants, and therefore was acting in a judicial capacity when convicting Plaintiff
of contempt upon a warrant check. (Order at 27-29). Had Plaintiff appeared before Fisher requesting
the issuance of a warrant, the Court could be correct. However, that was not the case. Plaintiff
appeared before Fisher in her administrative capacity, asking only for a list of Occupy protesters
without outstanding warrants, which was denied. Plaintiff tried to call the office to ask this question
over phone and only went to the magistrate office when they did not answer. A warrant check is not a
judicial function.
Magistrates wear different hats and have different functions. Some are judicial, some are
ministerial. The magistrate has the duty to determine for themselves in which capacity they are
operating at any given time. While listed as part of the statutory powers, contempt is only available
when the magistrate is presiding over actual court proceedings, such as small claims court, as this is the
only time the magistrate is properly empaneled as a judge. Plaintiff vigorously asserts Fisher lacked all
the power to impose contempt in her administrative capacity upon a warrant check. Would anyone
seriously suggest a magistrate would have the power of contempt when performing a wedding
ceremony? The magistrates power of contempt is not absolute and unfettered. It only applies when
they are properly acting in their judicial capacity, and Plaintiff contends, only when they are presiding
over Small Claims Court, the only actual magistrate courtroom.
`

The Supreme Court has expressly recognized that the capacity in which the plaintiff appears

before a quasi-judicial official is directly relevant to the immunity analysis. Plaintiff was not
appearing before the magistrate in a judicial capacity, or as part of any adversarial, contested
proceeding. Nor was she appearing before the magistrate asking for any judicial relief, such as the

issuance of a warrant. As unequivocally demonstrated by the record evidence, Plaintiff had no idea she
was appearing before any sort of judicial official with the power of contempt, as Plaintiff asked Fisher
to produce some sort of proof of her judicial status after being summarily convicted. Plaintiff
appeared to ask an administrative question, something that could have been handled over the phone had
they bothered to answer their phone that night. Under the Court's logic, Plaintiff could have been held
in contempt if she cursed at the magistrate over the phone upon a warrant check.
Again, the Court seems to be under the mistaken impression that the space in the bottom of the
BCDF is some sort of 'courtroom.' As clearly stated above and plead, it is not. It is an office. The
mere fact these events occurred in such office does not give rise to a finding that Fisher acted in a
judicial capacity as a matter of law. The Court's findings and reliance on this mistaken view amount to
reversible error. Plaintiff contends Fisher lacked jurisdiction to impose contempt, as no adversarial
judicial proceedings were in progress and Plaintiff merely appeared in the magistrate office to ask an
administrative question.
The Court concludes the judicial immunity analysis with another bizarre finding that Plaintiff
somehow conceded the question by seeking to overturn her illegal conviction on appeal:
Plaintiffs entire encounter with Defendant Fisher was undertaken in connection with
Fisher's role as a judicial officer within the subject matter jurisdiction accorded
magistrates by the sate and she is thus entitled to immunity for her acts taken thereby. In
fact, Plaintiff's 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. (Order at 29).
This finding makes zero sense. The immunity question revolves around the capacity in which
Fisher was acting when Plaintiff appeared for the warrant check, not her subsequent act of illegally
jailing and detaining Plaintiff. This finding again indicates to Plaintiff the Court harbors great
animosity towards her as an unlicensed pro se attorney Plaintiff and has improperly construed her
complaint. Fisher is not entitled to absolute immunity upon the appearance for an administrative
warrant check in the magistrate office.

Conclusion
The Court has improperly construed the pro se complaint, clearly violated established precedent
by sua sponte invoking witness immunity when not raised as an affirmative defense, erroneously
rejected Plaintiffs perjury claims, and wrongfully applied absolute judicial immunity to clearly
administrative acts. Rule 59(e) allows the Court to correct it's manifest errors prior to appeal.
WHEREFORE, Plaintiff respectfully requests the Court Alter or Amend it's Order of March 9,
2016, and resulting Judgment, DENY Defendants' Motions to Dismiss.

Respectfully submitted, this the 6th day of April, 2016.