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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA


ASHEVILLE DIVISION
JENNIFER NICOLE FOSTER,

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AMANDA FISHER, Magistrate, 28th Judicial District,
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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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JOHN DOE BUNCOMBE COUNTY SHERIFF DEPUTY ]
NUMBER ONE, in his official and individual capacities ]
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th
CALVIN HILL, Chief District Court Judge, 28 Judicial ]
District, State of North Carolina, in his
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official and individual capacities
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CASE NO. 1:14-cv-00292

Plaintiff,

PLAINTFF'S RESPONSE
TO MOTIONS TO DISMISS
BY HILL, FISHER AND
VAN DUNCAN

Now comes the Plaintiff pro se and responds to Motions to Dismiss filed by Defendants
Fisher and Hill (Docket 41, 42) and Defendant Van Duncan (Docket 43).
I.

Defendants Hill and Fisher

A.

Defendant Hill is Not Entitled to Judicial Immunity


Plaintiff is suing Chief Judge Hill on the basis of 'supervisory liability' for his role over

what Plaintiff has asserted is a 'rouge' magistrate, and magistrate's office. (Docket 33 at 1624). Hill completely ignores this, and asserts only that he is entitled to absolute immunity for the
judicial act of denying Plaintiff's Petition to Remove Fisher. (Docket 42 at 10-11). Plaintiff,
however, is not seeking to impose liability on the basis of the removal petition. Plaintiff has
alleged that the Order is direct evidence of the failure to supervise. (Docket 33 at 23).
Hill has not filed an Answer or otherwise asserted any defense or challenge to the
allegations of supervisory liability, so any further claims or defenses are waived. See Cozzo v.

Tangipahoa Parish Council-President Government, 279 F.3d 273, 283 (5th Cir. 2002) (waiver of
absolute immunity where defendants pleaded only qualified immunity). Supervisory functions,
however, are clearly administrative in nature and not subject to judicial immunity. See Forrester
v. White, 484 U.S. 219, 220 (1988) (qualified immunity analysis for judge's firing of probation
officer); Supreme Court of Va. v. Consumers Union, 446 U.S. 719 (1980) (judges do not enjoy
judicial immunity for legislative or administrative functions); Meek v. county of Riverside, 183
F.3d 962 (9th Cir. 1999) (qualified immunity analysis for judge firing court commissioner).
Plaintiff has additionally asserted a claim for Declaratory Relief which is not barred by
immunity. Hill's motion as to the individual capacity claims must therefore be denied in it's
entirety. See Hafer v. Melo, 502 U.S. 21, 27 (1991) (the burden of proof for absolute immunity
lies with the individual asserting it).
B.

Fisher is Not Entitled to Judicial Immunity


While, at first, it may seem automatic that Magistrate Fisher would be entitled to absolute

immunity based on clear precedent for 'judicial acts' of illegally convicting and jailing Plaintiff
for contempt and holding her illegally for 48 hours, this matter actually presents a much closer
case of the line between absolute and qualified immunity, which has not been raised as a defense
and has therefore been waived. See Cozzo, 279 F.3d at 283.
Magistrates in North Carolina are not judges, but officers of the district court, former
justices of the peace, redesigned in 1966. Their workplace, 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.1
Magistrates are not subject to the Code of Judicial Conduct, or subject to discipline from the
2
1 http://www.nccourts.org/citizens/publications/documents/judicialsystem.pdf

North Carolina Judicial Standards Commission. They are not subject to impeachment. Judges
are elected in North Carolina, magistrates are not. Judges must be lawyers, while magistrates
need only a two-year associate's degree with four years of related experience.
As Defendant Fisher is not a judicial official, a quasi-judicial immunity analysis applies.
Cf. Lundahl v. Zimmer, 296 F.3d 936 (10th Cir. 2002) (clerk of court entering default judgment
entitled to immunity); but see Snyder v. Nolen, 380 F.3d 279 (7th Cir. 2004) (clerk of court not
entitled to immunity for refusing to file proper papers in legal action). While courts have
likened the analysis as the same between judges and non-judge actors as a general matter,
Plaintiff asserts, as a matter of first impression, that the structure of the North Carolina
magistrate system, which is not under the jurisdiction of the Judicial Standards Commission nor
the Code of Judicial Conduct, employes magistrates as mere unelected officers within the
district court system, rather than judges, and provides no redress for misconduct, except
through the gatekeeper function of the Chief District Court Judge, has created a system where
traditional judicial immunity analysis does not apply to magistrates in North Carolina as a matter
of right as the functional equivalent of 'judicial officers.
This matter is clearly distinguishable from all cases involving actual judges, as well as
cases involving clerks of court and other 'quasi-judicial' officials that are subject to removal from
office through the electoral process. No remedy, other than criminal charges, appears to be
available against magistrates in North Carolina.
The facts of this case also show that absolute immunity is not warranted. As the Court
observed 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
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judgment, and also considers whether the parties understand they are before a judge in their
judicial capacity. Id.
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 immunity. See
Mireles V. Waco, 502 U.S. 9, 12 (1991); Richman v. Sheahan, 270 F.3d 430, 436-37 (7th Cir.
2001). Instead, Plaintiff went to the magistrate officer for a 'warrant check,' clearly an
administrative function not requiring the exercise of legal discretion. Had Plaintiff's claims
arose entirely from this encounter, Fisher clearly would not enjoy absolute immunity, as 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).
After Plaintiff left the magistrate office upon the administrative inquiry, Fisher sua
sponte invoked her statutory contempt powers and summarily convicted Plaintiff of contempt
and imposed a five day sentence outside of Plaintiff's presence. Plaintiff had absolutely no
understanding she was appearing before any sort of official with the power of contempt, and no
one, including the arresting officers, knew what the charges were. After being arrested and
brought before the magistrate confined inside the BCDF, Plaintiff told the magistrate she did not
believe she was a' judge,' and asked for proof of her judicial authority after being summarily
convicted, which was not produced. (See Docket 1 at 40-41). Plaintiff 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.
Fisher did not exercise any legal discretion or judgment in this case. Rather, she imposed
contempt without following any portion of the statute setting forth procedural and substantive
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due process requirements. She further disregarded all legal requirements in failing to conduct a
bond hearing, imposing an illegal cash-only bond, and in failing to release Plaintiff immediately
upon the filing of her notice of appeal, as required by the contempt statute. Fisher admitted
during the Superior Court trial de novo that she acted intentionally to ensure that Plaintiff would
not be released from custody over the weekend so she would not be able to return to the Occupy
Camp. (Docket 1, Exh 1, Superior Court Transcript at 37-38).
Plaintiff contends that, when the totality of circumstances are examined through a lens of
quasi-judicial' analysis, absolute immunity does not apply in this case: 1) Fisher is not a judge,
but an officer of the Court; 2) Plaintiff appeared for administrative function without adversarial
proceeding involved; 3) Plaintiff reasonably lacked any subjective understanding she was
appearing before any sort of official with the power of contempt; 4) Fisher sua sponte invoked
her statutory contempt powers2 without any warning to Plaintiff and outside of Plaintiff's
presence; 5) Fisher failed to exercise any legal discretion or judgment when summarily
convicting and sentencing Plaintiff, in particular, failing to give Plaintiff any opportunity to
respond as found by the N.C. Court of Appeals,3 in reversing Plaintiff's conviction; 6) Fisher
abdicated all judicial function by failing to hold a bond hearing, imposing an illegal cash-only
bond, and failing to immediately release Plaintiff upon filing her notice of appeal, as required by
5
2 Plaintiff also contends, primarily for appellate preservation purposes, that because magistrate's in North Carolina
are mere officers of the court and not 'judges,' N.C.G.S. 7A-292, listing contempt as an express power of the
magistrate exceed its legal authority. Only judges are properly empowered to impose contempt. Thus, despite the
express statutory authority, Plaintiff contends that there is no judicial power for contempt and thus, the magistrate
acted in complete absence of jurisdiction; warranting a qualified immunity analysis. See Stump, 435 U.S. At 356-57
Further, section 7A-292 reflects the prior justice of the peace functions of the magistrate, such as performing
marriages and administering oaths, not the criminal law functions, which are expressly set forth by section 7A-273.
Including the criminal law function of direct criminal contempt within the justice of the peace functions exceeds the
actual jurisdiction of the magistrate as enacted. .
3 Defendants Fisher and Hill make much of the scathing condemnation by the N.C. Court of Appeals that
Plaintiffs conduct was offensive and incomprehensible. (Docket 42 at 4). Plaintiff reiterates quite strongly the
entire factual basis of the Court of Appeals opinion and ongoing State Bar disciplinary proceedings are the result of
Fisher's blatant perjury, and that nothing about Plaintiff's conduct was offense or incomprehensible.

statute; 7) Fisher openly admitted at trial that her express purpose in illegal convicting and
detaining Plaintiff was to ensure she would stay in jail over the weekend and not return to the
Occupy Camp, due to her stated absurd fear that 'a riot might ensue; (Docket 1 at 59-60,
Superior Court Transcript at 37-38); 8) no redress for misconduct exists through disciplinary
action from the North Carolina Judicial Standards Commission; 9) impeachment is not possible;
and 10) no redress is possible through the electoral process.
Under these circumstances where Plaintiff was appearing solely for an administrative
function, the magistrate acted unilaterally and outside of Plaintiff's presence to illegally impose
contempt, and no redress exists in the North Carolina system for misconduct, Plaintiff asserts
that her constitutional rights to access to courts, and redress of her federal civil rights violations
would be denied upon application of absolute judicial immunity.
As Fisher has failed to Answer or raise any other defenses, and has not met her burden to
demonstrate the application of absolute immunity, her motion must be denied. See Hafer, 502
U.S. at 27. Fisher has waived any affirmative defense to Plaintiff's claims of perjury. Cozzo, 279
F.3d at 283, and Plaintiff's request for Declaratory Relief is not barred. Thus, Fisher's motion
should be denied in it's entirety with regard to the individual liability claims.
C.

Incorporation Clause Argument


Neither Fisher nor Hill raise any argument as to the sufficiency of Plaintiffs allegations

on the merits, except to claim that Plaintiff failed to properly 'incorporate' her factual and
jurisdictional allegations from the original complaint, and, as a result, the Court lacks
jurisdiction. (Docket 42 at 5). Fisher asserts that Plaintiff used a prohibited sweeping
adoption clause by incorporating all previous allegations against Fisher, and that, pursuant to
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Rule 10(c), the Second Amended Complaint must be dismissed as devoid of factual or
jurisdictional allegations. (Id.).
Defendants' assertion that the entire case should somehow be dismissed because Plaintiff
'over-plead' the adoption clause by listing each paragraph involving Fisher, frankly, is absurd,
especially in light of Plaintiff's pro se status. Fisher makes no attempt to argue Plaintiff has not
met her burden under Rule 8 of notice pleading, and makes no assertion her factual allegations
are insufficient under a Rule 12(b)(6) analysis. Instead, Fisher relies upon a district court case
from Louisiana, Wolfe v. Charter Forest Behavioral Health Sys., Inc., 185 F.R.D. 225, 228-29
(W.D.La. 1999), for the proposition that Rule 10(c) was not intended to allow the use of
'sweeping' adoption clauses.
The Federal Rules of Civil Procedure specifically allow for incorporation by reference in
supplemental pleadings. Rule 10(c) reads: Statements in a pleading may be adopted by
reference in a different part of the same pleading or in another pleading or in any motion. The
non-precedential case cited by Fisher indicates that such incorporation must be done with a
degree of specificity and clarity which would enable the responding party to easily determine the
nature and extent of the incorporation. Wolfe, 185 F.R.D. at 228-29. Wright and Miller note
that references to prior allegations must be direct and explicit in order to enable the responding
party to ascertain the nature and extent of the incorporation. 5 Charles Allan Wright & Arthur
R. Miller, Fed. Practice and Procedure: Civil 2d 1326
It is beyond dispute that Plaintiff's incorporation clause was direct, explicit and sufficient
to enable Fisher to understand the nature of the incorporation. Plaintiff listed all the paragraphs
involving Fisher, so there is no confusion whatsoever as to any omitted claims. Any claim that
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'over-pleading' the incorporation clause in this pro se case somehow has caused Fisher
confusion, is disingenuous, at best, and frivolous, and intended to harass, at worst. See, e.g.,
Carroll v. Fort James Corp., 36 ELR 20234 No. 05-60582 (5th Cir. 11/27/2006) (finding
sufficient incorporation clause reurge and reallege all of the allegations as set forth and
contained in their original complaint as if copied herein in extenso and in toto as providing
sufficient notice under Wolfe).
As this Court is well aware, there is a duty to liberally construe pro se pleadings,
applying less stringent standards than if the party was represented by counsel. Huges v. Rowe,
449 U.S. 5 (1980). This well-settled principle applies equally in this case, even though Plaintiff
holds a J.D. with Honors from UNC School of Law and practiced law continually until her
license was administratively suspended by the CLE department during the course of the ongoing
State Bar disciplinary proceedings in December 2013. Plaintiff is not currently licensed, has
never appeared in federal court, has no experience with federal civil rights law, has no local
access to federal legal research, and suffers from almost completely debilitating PTSD and other
mental health disorders as the result of Defendant's conduct. Plaintiff feels strongly that Fisher's
point in this regard would nonetheless be frivolous were she represented by counsel, much less
appearing pro se. Any such argument in this regard must therefore be flatly rejected.
D.

Official Capacity Claims


Plaintiff has not been able to determine the extent of application of Eleventh Amendment

immunity in this case, except to note, as have Defendants that Plaintiff's claims for declaratory
and injunctive relief are not barred.

II.

Defendant Van Duncan


A.

Official Capacity Claims

Defendant Van Duncan, in his official capacity, first asserts that Plaintiff cannot recover
as a matter of law for what he characterizes as 'de minimus' injuries. (Docket 43, Exh. 1 at 1214). Plaintiff has alleged a pattern and practice of intentional sleep deprivation, as occurred in
her case, based on the first 24 hours of detention in sub-zero temperatures, followed by a second
24 hours of 15-minute observational status, intentionally designed to induce sleep deprivation.
(Docket 1 at 54-55; Docket 22 1-5). Contrary to Defendant's assertions, these two phases
of incarceration must be read together, not as independent events. It has been directly alleged
that sleep deprivation was the express intent and purpose and the result of a pattern, practice and
policy of intentional sleep deprivation at the BCDF. (Docket 1 at 57; Docket 22 5, 11-12).
Defendant bears the burden to demonstrate that dismissal is warranted under Rule 12(b)
(6), but has not cited one case to the Court demonstrating that intentional sub-zero temperatures
and intentional observational statuses such as Plaintiff endured, leading to 48 hours of sleep
deprivation, are de minims injuries.
Sleep is a basic human need, and human rights organizations all across the globe
recognize intentional sleep deprivation as a human rights violation. It is no excuse that every
other inmate housed at the BCDF suffered the same conditions, such only proves
the point that intentional sleep deprivation through sub-zero temperatures is in fact a clear
pattern and practice of Sheriff Van Duncan and the BCDF.
Plaintiff has clearly alleged that 48 hours of intentional sleep deprivation affected her
ability to represent herself in Court on Monday November 7, 2011, when released, as well as
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caused her professional reputation damages in front of a Superior Courtroom filled with her
colleagues. (Docket 1 at 51-52). Plaintiff has further clearly alleged that she suffered PTSD
and other mental health problems since the date of her illegal confinement as the result of 48
hours of intentional sleep deprivation, especially in the days and weeks following her release.
(Docket 22 at 13). Defendant's claim that this amounts to a 'de minimus' injury, without any
supporting authority in support, must be rejected as insufficient to meet Defendant's burden of
proof.
Van Duncan next argues that Plaintiff has failed to sufficiently alleged a policy or custom
of the Sheriff's Office because, he contends, Plaintiff asserts only one violation, hers. (Docket
43, Exh. 1 at 14-16). This simply is not true. Plaintiff has clearly alleged that other BCDF
detainees, including her initial holding cellmate, suffered intentional sleep deprivation from the
cold temperatures. (Docket 22 at 3-4). Plaintiff specifically averred that other inmates had
to resort to wearing 'toilet paper' socks due to the cold. Further, since Plaintiff was housed in
solitary confinement for the second 24 hour period, how is she to know of other inmates
subjected to the same observational status designed to cause sleep deprivation?
The 15-minute observational status was not based on any legitimate goals reasonably
related to law enforcement. As there was no basis or justification for such in Plaintiff's case, a
reasonable inference exists that other inmates have likewise been subject to intentional
observational status without justification and in retaliation and designed to cause sleep
deprivation without legitimate justification, as part of a pattern, practice, policy or custom by
Sheriff Van Duncan and the BCDF. Furthermore, when viewed together, a policy or custom to
induce sleep deprivation with 15-minute observational status clearly exists, as such is the express
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purpose of the sub-zero temperatures during the first 24 hours of confinement.


Finally, Van Duncan makes the conclusory claim himself, that Plaintiff has stated only
conclusory allegations of a policy or practice of the BDBF and Sheriff Van Duncan on
intentional sleep deprivation through the use of sub-zero temperatures and implementation of
unwarranted 'observational' statuses. (Docket 43, Exh. 1 at 16).
Upon review of a 12(b)(6) motion, the Court must 1) construe the complaint in the light
most favorable to the Plaintiff; 2) take all allegations in the complaint as true; and 3) draw all
reasonable inferences possible from the complaint in favor of the Plaintiff. See Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002). While the Court need not accept bald legal conclusions, in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) the Supreme Court adopted a "plausibility"
standard, requiring "enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence...[]" of the alleged illegality.
Here, Plaintiff has alleged two sets of facts based on her direct experience and personal
observations, of which reasonable inferences of a pattern, practice and policy of intentional sleep
deprivation can clearly be drawn. First, it is beyond any doubt, as Defendant admits, every
detainee in the BCDF experienced and complained of the sub-zero temperatures, and Plaintiff
has clearly alleged several other people who not only suffered these conditions, but also
complained, just as Plaintiff: Plaintiff's initial hold cellmate, and several African American
women Plaintiff met while waiting to appear in court Monday who wearing toilet paper around
their feet to try and keep warm. (See Docket 1 at 54). In Plaintiff's First Amended Complaint,
she re-iterated these allegations, specifically noting that the other detainees suffered sleep
deprivation and complained about the cold temperatures, with Plaintiff and her holding cellmate
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speculating the heat must be broken. (Docket 22 at 2-4).


Moreover, as maybe be rare, the issue in this case, the temperature setting, is, in-and-ofitself, a matter of policy that Sheriff Van Duncan is directly responsible for, or most certainly
negligent if he did not have personal knowledge of sub-zero temperatures, set as a matter of
policy. Plaintiff contents that her allegations regarding the sub-zero temperatures are well
beyond sufficient to raise a reasonable expectation that discovery will reveal the existence of
such a policy of the BCDF.
When viewed in the light that a clear pattern, practice and policy exists to create sub-zero
temperatures for sleep deprivation in her first 24 hours of detention, Plaintiff asserts it is a
natural and reasonable inference, in support of her allegations, that the conditions she endured
for the next 24-hours, unwarranted 'observational status' with knocking on the door every 15minutes and being forced to stare at a florescent light, was the 'second phase' of the policy and
practice at the BCDF to create intentional sleep deprivation, in particular in Plaintiffs case, in
retaliation for her First Amendment Occupy Asheville protected activities.
Plaintiff's factual averments, not only of the conditions of her confinement, but also those
of every other detainee she encountered, provide a clear basis to infer the existence of a clear
pattern, policy and practice by Sheriff Van Duncan and the BCDF to retaliate by use of
intentional sleep deprivation tactics. Plaintiff has clearly stated "enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence...[]" of such a known policy and
practice. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Further, nothing contained in
Plaintiffs allegations in any way contradicts the claims she has stated. Therefore, the Court
should deny Van Duncan's Motion to Dismiss in his official capacity in it's entirety.
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Individual Capacity. Plaintiff will, however, abandon her individual liability claims
against Sheriff Van Duncan, as is correctly noted, there is no indication he had personal
knowledge of any of these matters. Such is precisely why Plaintiff has added 'John Doe'
Defendant, who ordered the 15-minute observational status of Plaintiff.
Finally, Plaintiff has additionally requested injunctive and declaratory relief, neither of
which are barred by immunity and have not been asserted to be subject to dismissal.
For the reasons stated above, Van Duncan's Motion to Dismiss should be denied, except
as to the individual capacity claim, which Plaintiff will voluntarily dismiss.
III.

Procedural Matters
No Consent to Disposition by Magistrate Judge Plaintiff has not consented to disposition

before the Magistrate Judge, not due to any ill-will against the federal Magistrate, but out of an
abundance of caution of any perceived conflict of interest as Plaintiff is suing a state magistrate.
Plaintiff understands the two systems are entirely different, and is not familiar enough with
federal court practice to understand when consent to proceed before the federal Magistrate is
required. Out of an abundance of caution, Plaintiff points out her lack of consent to the Court to
the extent it finds the current pending motions to be dispositive in any way.
Caption of the Case Plaintiff also notes that the Court has altered the caption of the case
in it's last order to read Foster v. Van Duncan, et al. The lead Defendant in the case is Amanda
Fisher; the claims against the Sheriff are secondary and asserted primarily for prospective relief.
Plaintiff thus requests that the Court use the caption of Foster v. Fisher, et. al. for all future
orders, as it has done in the past.

13

WHEREFORE, Plaintiff respectfully requests the Court DENY Defendants' Motions to


Dismiss, as stated herein.
Respectfully submitted, this the 4th day of May, 2015.

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

CERTIFICATE OF SERVICE
This is the certify that she served the following Response to Motions to Dismiss by Hill, Fisher
and Van Duncan 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 4th day of May 2015
_________________________________
Jennifer Nicole Foster
259 Westover Alley
Asheville NC 28801
Telephone: (828) 407-6588
Email: fosterthejen@hotmail.com