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Foster v. Fisher

United States District Court, W.D. North Carolina, Asheville Division

June 17, 2015

JENNIFER NICOLE FOSTER, Plaintiff,
v.
AMANDA FISHER, et. al., Defendants.

MEMORANDUM AND RECOMMENDATION AND ORDER

DAVID S. CAYER, Magistrate Judge.

THIS MATTER is before the Court on Defendants' "Motion[s] to Dismiss..." (documents ##41, 43 and 48), as well as the parties' briefs and exhibits.

This matter was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1), and these Motions are now ripe for the Court's consideration.

Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that Defendants' Motions to Dismiss be granted as discussed below.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, an attorney who is proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 for damages arising from her arrest and incarceration for criminal contempt on November 5, 2011. Accepting Plaintiff's factual allegations as true, she appeared before Magistrate Amanda Fisher ("Fisher") at the Buncombe County Detention Facility ("BCDF") as attorney for the Occupy Asheville Movement. Plaintiff demanded to know "what the hell was going on with APD arresting Occupy protesters for marching without a permit." Fisher instructed Plaintiff to "watch her language." Plaintiff asked Fisher how many warrants were outstanding and whether there was a procedure for Occupy protesters to self-surrender. Plaintiff alleges that Fisher refused to provide her with any information. Plaintiff became frustrated and left, stating "what the fuck is going on around here?" and "this is a bunch of bullshit." Two Buncombe County Sheriff's Deputies placed Plaintiff under arrest. Plaintiff was processed and brought back to the Magistrate window where she was served with a Judgment of Conviction of Contempt of Court imposing a five day active sentence. Approximately thirty minutes later, Plaintiff filed an appeal of her conviction and sentence. Fisher set a $10, 000 "cash-only" bond pending appeal.

Plaintiff was incarcerated for approximately forty-eight hours before being released on November 7, 2011. She alleges that during her first twenty-four hours of confinement she was placed in a large holding cell that was intentionally kept at a low temperature. Her request to turn up the heat was denied. Plaintiff further alleges that other detainees wore "toilet paper" socks. Plaintiff alleges that the low temperature prevented her from resting. Plaintiff asserts that Sheriff Jack Van Duncan is liable for the low temperatures because he had actual or constructive knowledge that BCDF officers were implementing a policy to cause sleep deprivation.

Plaintiff alleges that during her second twenty-four hours of confinement she was placed on observation status in a solitary cell by Defendant Doe and forced to stare at a florescent light, with guards knocking on the window every fifteen minutes. Plaintiff alleges that the BCDF intentionally imposed these conditions of confinement with the intent to deprive her of sleep in retaliation for exercising her First Amendment rights as attorney for the Occupy Movement.

Plaintiff also names Chief District Court Judge Calvin Hill of the 28th Judicial District as a Defendant in both his official and individual capacities. During the appeal of her contempt conviction, Plaintiff filed a removal petition against Fisher. Plaintiff alleges that Judge Hill summarily denied the petition without addressing her allegations of misconduct.

Plaintiff filed her original complaint on November 7, 2014. On December 30, 2014, she filed a Motion for Leave to File an Amended Complaint. The Court denied as moot Plaintiff's first motion for leave to amend because the time for her to amend as of right had not expired.

On January 21, 2015, Plaintiff filed her First Amended Complaint.

On January 30, 2015, Plaintiff filed a second Motion for Leave to File an Amended Complaint. On March 11, 2015, the Court granted Plaintiff leave to file a Second Amended Complaint and directed the Clerk to docket her attached Second Amended Complaint.

Defendants have filed their respective Motions to Dismiss, which have been fully briefed and ...


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