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IN THE UNITED STATES DISTRICT COURT

WINERD “LES” JENKINS,

Plaintiff,

v. CIVIL ACTION NO.: 3:21-CV-78

CHASSIDY KINSER, individually,

Defendant.

ORDER GRANTING DEFENDANT KINSER’S MOTION TO DISMISS

Now before the Court is Defendant Kinser’s Motion to Dismiss. ECF No. 19.

Therein, Defendant Kinser argues that the Plaintiff has failed to state a claim for which

relief can be granted. Defendant Kinser also argues that she is entitled to qualified

immunity. For the reasons that follow, Defendant Kinser’s motion shall be GRANTED.

I. Factual and Procedural Background

This case arises out of events occurring at the Plaintiff’s place of business on April

23, 2020. The Plaintiff owns and operates Les’ Place Traditional Barbershop, located in

Inwood, West Virginia. On April 23, 2020, the Plaintiff was arrested in his barbershop for

Obstructing an Officer, in violation of West Virginia Code § 61-5-17(a), for his refusal to

comply with Governor Jim Justice’s executive order, (“EO 6-20”), 1 which mandated the

closure of barbershops to the general public. The background of the Plaintiff’s alleged

1 EO 6-20 states, “effective as of 12:00 AM, Eastern Standard Time, on the Twentieth day of March, Two

Thousand Twenty, all barber shops, nail salons, and hair salons throughout the 55 counties of this state
shall not allow occupancy by the general public.” See W. Va. Exec. Order No. 6-20 (Mar. 20, 2020).
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unlawful arrest are as follows 2:

On the morning of April 23, 2020, Defendant Chassidy Kinser, an inspector for the

West Virginia Board of Barbers and Cosmetologists (“WVBBC”), arrived at the Plaintiff’s

barbershop to investigate a complaint that the Plaintiff opened his barbershop to

customers in defiance of EO 6-20. When Defendant Kinser arrived, the Plaintiff was

inside the barbershop with the door locked. Defendant Kinser asked the Plaintiff to step

outside to discuss the complaint that had been lodged against him. The Plaintiff told

Defendant Kinser that the barbershop was not open currently, but he admitted that it had

been open the previous day. The Plaintiff informed Defendant Kinser that he would close

his barbershop only if she provided him with signed documentation that he was required

to close. When their conversation concluded, Defendant Kinser returned to her car and

called law enforcement.

Deputies Robinson and Weidman of the Berkeley County Sheriff’s Department

(collectively, the “Deputies”) responded to Defendant Kinser’s call. After talking to

Defendant Kinser outside, the Deputies entered the barbershop and ordered the Plaintiff

to close. The Plaintiff told the Deputies that he would close if Defendant Kinser gave him

the order in writing and signed it. Defendant Kinser remained outside while the Deputies

spoke with the Plaintiff inside.

The Deputies waited inside the barbershop with the Plaintiff while Defendant

Kinser left to obtain a hard-copy version of the executive order. However, Defendant

Kinser did not sign the order. The Plaintiff refused to acknowledge the document as

2 When reviewing a motion to dismiss, the Court assumes that the Plaintiff’s “well-pleaded factual
allegations” are true. Accordingly, the Court recites the facts as alleged in the Plaintiff’s Complaint. ECF
No. 1.

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having sufficient authority to compel him to close his shop. At that point, the Deputies

arrested the Plaintiff for Obstructing an Officer, pursuant to West Virginia Code § 61-5-

17(a). The charges were later dismissed on January 7, 2021, after the Magistrate Court

of Berkeley County found that EO 6-20 was unconstitutionally vague.

On May 20, 2021, the Plaintiff filed suit against Defendant Kinser and the Deputies

pursuant to 42 U.S.C. § 1983. ECF No. 1. The Complaint alleges three counts: (1)

unreasonable search and seizure for the entry and detention inside the barbershop, (2)

unreasonable search and seizure for false arrest and (3) First Amendment retaliation for

arresting the Plaintiff following the assertion of his rights to contest their authority. On

June 28, 2021, the Deputies filed a motion to dismiss them from the case, arguing that

the Plaintiff failed to state a claim under § 1983 and that they were protected from suit by

qualified immunity. ECF No. 10. This Court granted the Deputies’ motion on September

15, 2021. ECF No. 24

Defendant Kinser is the sole remaining defendant in this case. She filed a Motion

to Dismiss on August 26, 2021. ECF No. 19. The Plaintiff responded to Defendant

Kinser’s motion on September 15, 2021, [ECF No. 23] and Defendant Kinser replied on

September 20, 2021 [ECF No. 25]. The matter has been fully briefed and is ripe for

adjudication.

II. Standard of Review

A. Failure to State a Claim

A complaint must contain “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) of the Federal

Rules of Civil Procedure allows a defendant to challenge the complaint’s sufficiency in

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this regard by moving to dismiss a complaint for failing “to state a claim upon which relief

can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, the

complaint must allege “enough facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the pleading standard

under Rule 8 “does not require ‘detailed factual allegations,’ . . . it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Twombly, 550 U.S. at 555). Thus, “[a] pleading that offers ‘labels

and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’

Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual

enhancements.’” Id. (quoting Twombly, 550 U.S. at 555, 557).

When reviewing a Rule 12(b)(6) motion, the court assumes that the complaint’s

well-pleaded allegations are true, resolves all doubts and inferences in favor of the plaintiff

and views the allegations in a light most favorable to the plaintiff. Edwards v. City of

Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). Only factual allegations receive the

presumption of truth. Iqbal, 556 U.S. at 678-79. A court may also consider facts derived

from sources beyond the four corners of the complaint, including documents attached to

the complaint, documents attached to the motion to dismiss “so long as they are integral

to the complaint and authentic” and facts subject to judicial notice under Federal Rule of

Evidence 201. Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

III. Legal Analysis

In her motion to dismiss, Defendant Kinser argues that the Plaintiff has failed to

state a claim. To state a claim under § 1983, a plaintiff must allege (1) that a right secured

by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. West v. Atkins,

487 U.S. 42, 48 (1988). In cases with multiple individual defendants, the plaintiff must

plead that each defendant, through his or her own actions, caused the alleged

constitutional injury. Iqbal, 556 U.S. at 676. Vicarious liability does not exist under §

1983. Id. However, the Fourth Circuit does recognize the theory of supervisory liability

under § 1983. A supervisor can be liable where (1) she knew that her subordinate “was

engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional injury

to citizens like the plaintiff,” (2) her response was so inadequate as to show “deliberate

indifference to or tacit authorization of the alleged offensive practices” and (3) an

“affirmative causal link” existed between “the supervisor's inaction and the particular

constitutional injury suffered by the plaintiff.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.

1994).

Additionally, Defendant Kinser contends that she is entitled to qualified immunity.

While a motion to dismiss typically only “invites an inquiry into the legal sufficiency of the

complaint, not an analysis of potential defenses to the claims set forth therein, dismissal

nevertheless is appropriate when the face of the complaint clearly reveals the existence

of a meritorious affirmative defense,” like qualified immunity. Brockington v. Boykins, 637

F.3d 503, 506 (4th Cir. 2011) (internal quotation marks omitted). Therefore, the Court will

consider each count of the complaint, to the degree it involves Defendant Kinser, and the

Defendant’s claim of qualified immunity in turn.

A. Count I: Unlawful Search and Seizure

In count one of his complaint, the Plaintiff alleges that Defendant Kinser violated

his Fourth Amendment right to be free from unlawful search and seizure when she

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ordered the Deputies to enter his barbershop without his consent. The Plaintiff contends

that the Deputies’ entry into his shop constitutes a search. The Plaintiff further asserts

that he was seized the entire time the Deputies were present inside his barbershop. The

Fourth Amendment guarantees that “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.” U.S. CONST. amend. IV. At its core, the Fourth Amendment protects

people from unreasonable searches of “their persons [and] houses,” but that protection

may also extend to other areas where a person may have a legitimate expectation of

privacy. Minnesota v. Carter, 525 U.S. 83, 88 (2001) (citing Katz v. United States, 389

U.S. 347, 351 (1967)).

Defendant Kinser avers that she did not search or seize the Plaintiff because she

never entered his barbershop nor restrained him through physical force or a show of

authority. Additionally, Defendant Kinser argues that even if she had entered the

Plaintiff’s barbershop, she would not have violated his Fourth Amendment rights because

he had no reasonable expectation of privacy there.

1. Unlawful Search

The Fourth Amendment proscribes only searches that are unreasonable. To

determine whether a search was reasonable, courts employ a two-prong inquiry: (1)

whether the individual has “exhibited an actual (subjective) expectation of privacy” and

(2) whether his expectation is one that “society is prepared to recognize as ‘reasonable.’”

Katz, 389 U.S. at 361 (Harlan, J., concurring). As to the second prong, an objective

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expectation of privacy exists for commercial property, but that expectation “is different

from, and indeed less than, a similar expectation in an individual's home.” New York v.

Burger, 482 U.S. 691, 700 (1987). Specifically, a person “do[es] not have any reasonable

expectation of privacy in areas of the store where the public was invited to enter and to

transact business.” Maryland v. Macon, 472 U.S. 463, 469 (1985).

Here, the Plaintiff never alleges that Defendant Kinser entered his business. When

Defendant Kinser first arrived, the two spoke outside, and Defendant Kinser remained

outside when the Deputies arrived. Defendant Kinser left the premises entirely for a

period of time when the Deputies spoke with the Plaintiff inside his barbershop.

While most searches involve some degree of physical entry into a space, a

person’s expectation of privacy can be invaded through other means, such as sense-

enhancing technology or electronic data monitoring. E.g., Kyllo v. United States, 533 U.S.

27 (2001); Carpenter v. United States, 138 S. Ct. 2206 (2018). But that is not the case

here. Instead, the Plaintiff argues that Defendant Kinser ordered the Deputies to enter

his shop, and therefore she is equally responsible for the search they conducted.

However, § 1983 does not recognize the theory of vicarious liability. The Plaintiff has

failed to plead any facts showing that Defendant Kinser herself invaded a subjective or

objective expectation of privacy at his business. Despite contentions from the Plaintiff

that he is not basing his claims against Defendant Kinser on vicarious liability, his

argument that Defendant Kinser used the Deputies as a means to conduct a search

amounts to a theory of vicarious liability, which is improper under § 1983.

To the extent that the Plaintiff’s argument can be construed as of one of

supervisory liability, which the Fourth Circuit recognizes, his claim still fails as the

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standard for supervisory liability is quite high. To succeed on the first element of

supervisory liability, a plaintiff must provide “evidence that the conduct is widespread, or

at least has been used on several different occasions and that the conduct engaged in

by the subordinate poses an unreasonable risk of harm of constitutional injury.” Shaw,

13 F.3d at 799. Here, the Plaintiff cites no evidence that Defendant Kinser has frequently

ordered the Deputies, or others in law enforcement, to enter and search private

businesses on her behalf.

Furthermore, despite the Plaintiff’s repeated emphasis on the fact that Defendant

Kinser called law enforcement, and therefore was in control of the Deputies’ actions, the

act of calling the police does not give the caller supervisory authority to direct the

responding officers’ actions. Throughout his argument, the Plaintiff reiterates that

because Defendant Kinser called the police, she is jointly responsible for their actions.

The Plaintiff does not cite to any source that states that Inspectors for the WVBBC are

empowered with the ability to discharge orders to members of law enforcement. Instead,

the Plaintiff notes that Defendant Kinser told one of the officers that her husband was a

local prosecutor. Again, this fact does not bestow any level of authority to Defendant

Kinser over the Deputies. Moreover, earlier in his complaint, the Plaintiff asserts that both

Deputies were “at all times relevant hereto a deputy sheriff police officer employed by the

Berkeley County Sheriff’s Department.” ECF No. 1 ¶¶ 3-4. To the extent that the Plaintiff

pleads a theory of supervisory liability, he has failed to show that Defendant Kinser was

the Deputies’ supervisor or that all three required elements for supervisory liability can be

satisfied.

The Plaintiff has failed to allege any specific, individualized action taken by

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Defendant Kinser that violated his expectation of privacy, and instead relies on a mix of

vicarious and supervisory liability theories. Even if Defendant Kinser could be held liable

for the actions of the Deputies, this Court previously held that the Plaintiff did not have a

reasonable expectation of privacy in his shop. ECF No. 24. This Court found that a

reasonable person would have believed that the Plaintiff’s barbershop was open to the

general public. 3 ECF No. 24. No reasonable expectation of privacy exists “in areas of

the store where the public was invited to enter and to transact business.” Macon, 472

U.S. at 469. Therefore, the Plaintiff has failed to state a claim that Defendant Kinser

performed an unlawful search of his business.

2. Unlawful Seizure

A person can be seized by either “‘physical force’ or a ‘show of authority’ that ‘in

some way restrain[s] the liberty’ of the person.” Torres v. Madrid, 141 S. Ct. 989, 995

(2021) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). However, “[t]he Fourth Amendment

does not forbid all or even most seizures—only unreasonable ones.” Id. at 1003. Here,

the Plaintiff contends that the Deputies used a show of authority by entering his business

while wearing their uniform and then detained the Plaintiff inside his business. The

Plaintiff further argues that his seizure continued when he was arrested, transported for

pretrial incarceration, and held in custody until he posted bond. However, “a seizure is a

single act, and not a continuous fact.” Torres, 141 S. Ct. at 1002. Therefore, the Court

will consider each instance separately.

The Plaintiff does not allege that Defendant Kinser independently used physical

3 In its prior Order, the Court noted that when the Deputies arrived at the barbershop, a sign posted on
the front door of the shop indicated that it was open on Thursdays from 8:30 a.m. to 5:00 p.m., the barber
poll outside the shop was spinning and the front door was unlocked. The Plaintiff also repeatedly stated
that he would close if provided a written copy of the order, which implied that the barbershop was open.

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force or a show of authority against him. Instead, the Plaintiff avers that the Deputies were

acting at the behest of Defendant Kinser. As explained above, § 1983 does not recognize

the theory of vicarious liability, and the Plaintiff has not pled facts sufficient to apply

supervisory liability. Further, even if Defendant Kinser could be held responsible for the

Deputies’ actions, a government uniform does not equate to a show of authority. Florida

v. Royer, 460 U.S. 491, 497 (1983) (“Nor would the fact that the officer identifies himself

as a police officer, without more, convert the encounter into a seizure requiring some level

of objective justification.”). Moreover, this Court previously found that the Plaintiff failed

to allege facts sufficient to support a claim that the Deputies engaged in an overt act of

authority when they entered his barbershop. ECF No. 24.

Regarding the Plaintiff’s arrest, transport, and brief incarceration, this Court

previously found that the Deputies had probable cause to arrest the Plaintiff for

obstruction. ECF No. 24. While the Plaintiff was indeed seized at his arrest, transport,

and detention, those seizures were reasonable due to the existence of probable cause.

Additionally, the Plaintiff does not plead any facts describing how Defendant Kinser was

involved in the Plaintiff’s arrest, transport, or brief incarceration through her use of force

or authority. Instead, the Plaintiff relies on a mix of vicarious and supervisory liability,

asserting that because Defendant Kinser called law enforcement she can be held liable

for the actions taken by the officers in response to her call. She cannot be. Therefore,

the Plaintiff has failed to state a claim that Defendant Kinser unlawfully seized him at any

point.

B. Count II: Unlawful Arrest

The Fourth Amendment’s right against unreasonable searches and seizures also

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protects a person from false or unlawful arrest, or arrest without legal process. See

Wallace v. Kato, 549 U.S. 384, 389 (2007). Similar to a seizure, an arrest requires the

use of physical force or submission to an assertion of authority. Torres, 141 S. Ct. at 995.

To demonstrate unlawful arrest, “a plaintiff must show that he was arrested without

probable cause.” Smith v. Murphy, 634 F. App’x 914, 917 (4th Cir. 2015) (citing Brown v.

Gilmore, 278 F.3d 362, 367–68 (4th Cir. 2002)). The Plaintiff claims that he was unlawfully

arrested in violation of the Fourth Amendment because the Deputies did not have a

warrant or probable cause.

Again, Defendant Kinser’s only alleged involvement in this count was directing the

Deputies to arrest the Plaintiff. The Plaintiff does not provide any support for his

contention that Defendant Kinser, as an Inspector for the WVBBC, can order law

enforcement to make arrests. Defendant Kinser, like any member of the public, may call

the police to report wrongdoing. This is the extent of her involvement. Therefore,

because vicarious liability is not available under § 1983, the Plaintiff fails to state a claim

for unlawful arrest by Defendant Kinser.

C. Count III: First Amendment Retaliation

“[T]he First Amendment prohibits government officials from subjecting an

individual to retaliatory actions, including criminal prosecutions, for speaking out.”

Hartman v. Moore, 547 U.S. 250, 256 (2006). To state a claim of First Amendment

retaliation under § 1983, “a plaintiff must allege that (1) he engaged in protected First

Amendment activity, (2) the defendant took some action that adversely affected his First

Amendment rights, and (3) there was a causal relationship between his protected activity

and the defendant's conduct.” Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017) (cleaned

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up). To state a claim of retaliatory arrest, a plaintiff must “plead and prove the absence

of probable cause for the arrest.” Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019). Here,

the Plaintiff alleges that he was arrested for questioning the authority of Defendant Kinser,

the Deputies and the executive order.

When Defendant Kinser arrived at the Plaintiff’s barbershop, she was investigating

a complaint that the Plaintiff was operating his shop in violation of EO 6-20. Defendant

Kinser’s investigation was not spurred by the Plaintiff’s questions or criticisms of EO 6-

20. After Defendant Kinser informed the Plaintiff that she was responding to a complaint,

the Plaintiff told Defendant Kinser “that he would voluntarily close his shop if she would

provide him with signed documentation that he was required to close.” ECF No. 1, ¶ 18.

During his conversation with the Deputies, the Plaintiff reiterated the same request and

refused to accept the validity of the governor’s executive order.

Criticizing the law is indeed a protected First Amendment activity, and being

arrested adversely effects one’s ability to engage in First Amendment activity. However,

the Plaintiff fails to allege adequate causation between his protected activity and his

arrest. Under the Plaintiff’s logic, a person who violates a law can simply criticize the law

and the responding police officers and then claim retaliation. That is not the standard.

To prove causation in a retaliation claim, a plaintiff must show “‘but-for’ cause,

meaning that the adverse action against the plaintiff would not have been taken absent

the retaliatory motive.” Nieves, 139 S. Ct. at 1722. Here, Defendant Kinser did not decide

to investigate the Plaintiff’s barbershop based on his critical statements. Instead, when

Defendant Kinser arrived to conduct her investigation, the Plaintiff admitted to violating

the law and attempted to justify his actions by questioning the validity of the law. After

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the Plaintiff refused to comply with the executive order, Defendant Kinser contacted local

law enforcement. The Plaintiff has failed to allege facts showing that Defendant Kinser

acted purely in retaliation to any of his questions or comments. Defendant Kinser’s

investigation was initiated by a third-party complaint and her investigation focused on the

Plaintiff’s operation of his barbershop in violation of EO 6-20. Therefore, the Plaintiff has

failed to state a retaliation claim against Defendant Kinser for her investigation.

To the degree that the Plaintiff extends his retaliatory arrest claim against

Defendant Kinser, the Plaintiff fails here as well. The Plaintiff broadly asserts that the

“defendants expressed to the Plaintiff that he would be arrested if he didn’t cease

engaging in his protected free speech activity, and was in fact arrested for so doing.” ECF

No. 1, ¶ 70. At no point in his complaint does the Plaintiff identify any statement made by

any party that directly or indirectly suggests that the Plaintiff’s arrest is contingent on

retracting his statements or refraining from questioning the executive order or its

enforcement. To the contrary, in the body camera recoding provided by the Plaintiff, the

Plaintiff is seen speaking freely without interruption or intimidation from the officers. At

times, the officers express understanding of the Plaintiff’s viewpoint.

As it pertains to Defendant Kinser specifically, the Plaintiff does not provide any

source that states that Defendant Kinser had the authority to conduct an arrest. The

Plaintiff does not describe Defendant Kinser physically arresting him. Indeed, nothing in

West Virginia Code Chapter 30, Article 27, which governs the WVBBC, allocates arrest

authority to any member of the WVBBC. As elaborated upon above, vicarious liability is

not available under § 1983, so Defendant Kinser cannot be held liable for the arrest

conducted by the Deputies. Further, even if Defendant Kinser could be vicariously liable,

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this Court previously found that the Deputies had probable cause to arrest the Plaintiff for

obstruction after he refused to comply with their lawful orders. ECF No. 24. Accordingly,

the Plaintiff has failed to state a claim of retaliatory arrest against Defendant Kinser.

D. Qualified Immunity

In her motion to dismiss, Defendant Kinser raises the defense of qualified

immunity. While a motion to dismiss typically only focuses on the sufficiency of the

plaintiff’s complaint, “dismissal nevertheless is appropriate when the face of the complaint

clearly reveals the existence of a meritorious affirmative defense,” like qualified immunity.

Brockington, 637 F.3d at 506 (internal quotation marks omitted). The doctrine of qualified

immunity protects government officials from civil liability so long as the offending official’s

conduct “does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Qualified immunity serves to balance “two important interests—the need to hold

public officials accountable when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties

reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The legal question of

whether a defendant is entitled to qualified immunity must be decided by the court, not

the jury. Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005). Therefore, “[u]nless a

plaintiff’s allegations state a claim of violation of clearly established law, a defendant

pleading qualified immunity is entitled to dismissal before the commencement of

discovery.” Cloaninger v. McDevitt, 555 F.3d 324, 331 (4th Cir. 2009).

An official seeking to invoke the protections of qualified immunity “must

demonstrate that (1) a plaintiff has not alleged or shown facts that make out a violation of

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a constitutional right, or that (2) the right at issue was [not] clearly established at the time

of its alleged violation.” Owens v. Balt. City State's Att'ys Off., 767 F.3d 379, 395-96 (4th

Cir. 2014) (alteration in original) (internal quotation marks omitted). “[C]ourts have

discretion to decide which of the two prongs of [the] qualified-immunity analysis to tackle

first.” Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011). Here, the thrust of the Defendant’s

argument regarding qualified immunity rests on the second prong.

A right is clearly established when “its contours are sufficiently clear that ‘a

reasonable official would understand that what he is doing violates that right.’” Carroll v.

Carman, 574 U.S. 13, 17 (2014) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). The illegality of the official’s conduct must be “apparent” in “light of pre-existing

law.” Anderson, 483 U.S. at 640. A court generally need only look to decisions of the

United States Supreme Court, the controlling court of appeals, and the highest court of

the state where the case arose to determine whether the law clearly establishes a right.

Owens ex rel. Owens v. Lott, 372 F.3d 267, 279 (4th Cir. 2004). However, a plaintiff can

pierce the veil of qualified immunity by citing “‘to cases of controlling authority in their

jurisdiction at the time of the incident’ or to ‘a consensus of cases of persuasive authority.’”

Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 539 (4th Cir. 2017) (quoting Ashcroft, 563

U.S. at 742) (emphasis added).

To support his argument, the Plaintiff cites to a decision by the Magistrate Court of

Berkeley County on January 7, 2021, which held that the governor’s executive order was

unconstitutionally vague in violation of the Fifth Amendment. However, this decision

occurred nine months after the events of this case. To dismantle the defense of qualified

immunity, a plaintiff must provide case law that existed at the time of the alleged

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constitutional violation. Here the Plaintiff has failed to do so.

When Defendant Kinser arrived at the Plaintiff’s barbershop and asked him to close,

she was abiding by the governor’s executive order and the state regulations that govern

the WVBBC. As an Inspector for the WVBBC, Defendant Kinser may “inspect any barber,

beauty, nail, and aesthetic shops/salons or school of barbering, cosmetology, hair styling,

aesthetics or nail technology during business hours to check any part of the premises in

order to ascertain whether or not any part of these rules are being violated.” W. Va. Code

R. § 3-5-2.20. The governor’s executive order stated that “all barber shops, nail salons,

and hair salons throughout the 55 counties of this state shall not allow occupancy by the

general public.” W. Va. Exec. Order No. 6-20 (Mar. 20, 2020).

On the day of the Plaintiff’s arrest, a reasonable official would have no reason to

suspect that enforcing EO 6-20 might be unconstitutional. Because the Plaintiff cites no

other source, the Plaintiff has failed to identify a clearly established law that Defendant

Kinser violated. Moreover, as made clear in this Order, the Plaintiff has also failed to

show that Defendant Kinser violated any of his constitutional rights. Therefore, Defendant

Kinser is entitled to qualified immunity.

IV. CONCLUSION

For the aforementioned reasons, the Court finds that the Plaintiff has failed to state

a claim under § 1983 and Defendant is entitled to qualified immunity. Accordingly,

Defendant Kinser’s Motion to Dismiss is GRANTED. ECF No. 19. The Plaintiff’s claims

against Defendant Kinser are DISMISSED WITH PREJUDICE. Accordingly, the Clerk of

Court is DIRECTED to remove this case from the Court’s active docket.

The Clerk is further DIRECTED to transmit copies of this Order to all counsel of

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record.

DATED: December 16, 2021

____________________________________
GINA M. GROH
CHIEF UNITED STATES DISTRICT COURT JUDGE

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