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McCutcheon Complaint Filed
McCutcheon Complaint Filed
CC-13-2021-C-48
Greenbrier County Circuit Clerk
Louvonne Arbuckle
STEPHANIE MCCUTCHEON,
Plaintiff,
Defendant.
COMPLAINT
Comes now the Plaintiff, Stephanie McCutcheon, and for her Complaint, alleging
Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), as well as
principal office address 330 N. Wabash Ave, STE 3700, Chicago, IL 60611 and a notice
of process address of Corporate Creations Network, Inc., 126 East Burke Street,
Martinsburg, WV 25401 and doing business as Seasons Place Assisted Living Facility
3. This Court has jurisdiction over this action pursuant to West Virginia Code
§ 51-2-1, et seq.
Virginia Code § 56-1-1(a)(1), as it is the location of the events alleged herein, as well as
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the county of residence of the Plaintiff, and also the county where defendant operates
STATEMENT OF FACTS
Greenbrier County, West Virginia. She was so employed for approximately 5 years.
for Seasons facility, provided a letter to the staff at The Seasons which communicated
that the defendant had an “expectation” that all employees at The Seasons would be
vaccinated with one of the COVID-19 vaccines no later than June 1, 2021.
attempting to convince her to get the vaccine, representing to her falsely that the
vaccine was approved by the FDA and assuring her that the vaccine was safe.
8. However, Plaintiff had performed her own research on the vaccines for
COVID-19 and had determined that the appropriate personal medical decision for her
9. Plaintiff continued to protest to her employer that she felt strongly that she
could not, and would not, get the vaccine. She reached out to Human Resources, which
10. Initially, Human Resources in Chicago would only advise Plaintiff verbally
that it was mandatory for the Plaintiff to be vaccinated for COVID-19. Plaintiff requested
2
11. Eventually, as June 1, 2021 approached, Plaintiff received a letter from
Dear Employee,
As you know, leading authorities now instruct that vaccination is the most
effective method to combat the spread of COVID-19 and minimize its impacts.
Similarly, our experience has shown that being unvaccinated puts at risk the
safety and well-being, and lives of our residents, employees and visitors, and
has a significant impact on our daily business operations. As such, to best
protect our residents, employees, and visitors, Enlivant determined that
beginning June 1, 2021, all Enlivant employees at your Community must be
vaccinated.
Best wishes,
Andrew Knuth
Human Resources Director
Enlivant Senior Living
13. Plaintiff did not resign from her employment and consistently
1 Emphasis original. See May 25, 2021 letter from Andrew Knuth, attached hereto as Exhibit “A.”
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COVID-19 VACCINE IS NOT APPROVED BY THE FDA
14. On December 11, 2020, the United States Food and Drug Administration
(“FDA”) issued the first emergency use authorization (“EAU”) for an experimental
vaccine for the prevention of coronavirus disease 2019 (“COVID-19”). Emergency use
authorization is not an FDA approval. The experimental vaccine has been in existence
for less than a year. The first reported use of the experimental vaccine was December
14, 2020.
“unapproved”. Even though the FDA granted emergency use authorization for the
Pfizer/BioNTech and Moderna vaccines in December 2020, the clinical trials the FDA
will rely upon to ultimately decide whether to license these and other COVID-19
experimental vaccines are still underway and are designed to last for approximately two
(2) years to collect adequate data to establish if these vaccines are safe and effective
enough for the FDA to approve. The abbreviated timelines for the emergency use
applications and authorizations means there is much the FDA does not know about
these products even as it authorizes them for emergency use, including their
effectiveness against infection, death, and transmission of SARS-CoV-2, the virus that
is allegedly the cause of the COVID disease. Given the uncertainty about the COVID-19
experimental vaccines, the FDA requires that each dose of the experimental vaccine
shall have a label that states that the product is an emergency use authorization, that
the EAU is explicit that each is “an investigational vaccine not licensed for any
indication” and that all “promotional material relating to the Covid-19 Vaccine clearly and
conspicuously...state that this product has not been approved or licensed by the FDA,
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but has been authorized for emergency use by FDA”. (Exhibit “B”, EAU letter for Pfizer).
The Fact Sheet for vaccination providers and recipients, as mandated by the FDA, is
and warns that recipients should mention certain medical conditions and circumstances
to vaccination providers before getting the vaccine, such as those with bleeding
disorders, taking blood thinners, those who are immunocompromised, etc. The fact
sheet also requires a warning that certain individuals should NOT get the vaccine
(emphasis original), such as those who have had a severe allergic reaction to any
ingredient of the vaccine. (Exhibit “C”, Fact Sheet for Recipients and Caregivers).
“FDA believes that terms and conditions of an EAU issued under section
564 preempt state or local law, both legislative requirement and
common-law duties, that impose different or additional requirements on
the medical product for which the EAU was issued in the context of the
emergency declared under section 564... In an emergency, it is critical
that the conditions that are part of the EAU or an order or waiver issued
pursuant to section 564A – those that FDA has determined to be
necessary or appropriate to protect the public health-be strictly followed,
and no additional conditions be imposed.”2
17. In August 2020, the Centers for Disease Control and Prevention (“CDC”)
“I just wanted to add that, just wanted to remind everybody, that under an
Emergency Use Authorization, an EAU, vaccines are not allowed to be
mandatory. So, early in the vaccination phase, individuals will have to be
consented and they won’t be able to be mandated.”
2https://www.fda.gov/regulatory-information/search-fda-guidance-documents/emergency-use-
authorization-medical-products-and-related-authorities
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18. Here, Plaintiff has been terminated from her job and other employees in
West Virginia are in imminent and immediate danger of being terminated from their jobs
for refusing to take an experimental vaccine that is being provided under an EUA.
19. On January 30, 2020, the World Health Organization (“WHO”) declared a
Health and Human Services (‘HHS”) Secretary, Alex Azar, declared a national Public
Health Emergency (“PHE”) retroactive to January 27, 2020, “to aid the nation’s
COVID-19 by the end of 2020 or early 2021. The process for developing a vaccine
21. The general stages of the development cycle for a vaccine are:
a. Exploratory stage;
b. Pre-clinical stage (animal testing);
c. Clinical development (human trials - see below);
d. Regulatory review and approval;
e. Manufacturing; and
f. Quality control.3
3 https://www.cdc.gov/vaccines/basics/test-approve.html
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22. The third stage, clinical development, is itself a three-phase process:
23. Phase III itself normally occurs over a course of years because it can take
years for the side effects of a new vaccine to manifest themselves. Phase III must be
followed by a period of regulatory review and approval. During this stage, data and
outcomes are reviewed by peers and by the FDA. Finally, the manufacturer must
demonstrate that the vaccine can be manufactured under conditions that assure
24. The timeline set by OWS telescoped what would normally take years of
research into a matter of months. Commercial vaccine manufacturers and other entities
technologies including RNA, DNA, protein, and viral vectored vaccines. Two potential
Vaccine”) and the other by Pfizer (“Pfizer Vaccine”) with both announcing Phase III trial
results in November 2020. In early 2021, Janssen Biotech, Inc., submitted Phase III trial
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VAERS DATABASE IDENTIFIES SERIOUS COVID-19 HEALTH CONCERNS
25. In 1990, the Vaccine Adverse Event Reporting Systems (“VAERS”) was
individuals to voluntarily send in reports of their experiences to CDC and FDA. VAERS
might indicate a possible safety problem with a vaccine. This way, VAERS can provide
CDC and FDA with valuable information that additional work and evaluation is
26. There were 4,434 death reports and over 12,619 serious injuries reported
to the CDC's VAERS database from COVID-19 vaccines through May 10, 2021. By
comparison, from July 1, 1997, until December 31, 2013, VAERS received 666 adult
death reports.5 The flu vaccines are linked to 20–30 death reports a year, according to
Dr. Peter McCullough6, and those 20–30 death reports come with considerably more
vaccines administered.7 Arguably, if the experimental vaccine was any other vaccine or
4 VAERS is co-managed by the CDC and the FDA. VAERS accepts and analyzes reports of
adverse events (possible side effects) after a person has received a vaccination. Anyone can
report an adverse event to VAERS. Healthcare professionals are required to report certain
adverse events and vaccine manufacturers are required to report all adverse events that come
to their attention.
5Pedro L. Moro, Jorge Arana, Mria Cano, Paige Lewis, and Tom T. Shimabukuro, Deaths
Reported to the Vaccine Adverse Event Reporting System, United States, 1997-2013,
VACCINES, CID 2015:61 (September 2015)
6 Dr. McCullough is vice chief of medicine at Baylor University Medical Center and the most
cited American medical doctor on COVID-19 at the National Library of Medicine.
7 Dr. McCullough estimated the flu shot at 195 million people annually, while over 153 million
have currently received COVID vaccinations. The disparity between these two vaccine groups is
staggering.
8
drug, it would already have been removed from the market. Usually, a new drug is
withdrawn after 50 deaths, which is not typical because the FDA has a strict approval
process. The COVID-19 vaccines have been exempted from the approval process,
27. Thirty-five hundred plus (3,500 +) reports is 70 times the normal threshold
for pulling a drug from the market. Although this is raw data, previous VAERS studies
have shown that only 1-10% of vaccine-related deaths are reported to VAERS —or less.
The COVID vaccines are adding a year's worth of VAERS reports every week. In just
four months, more adverse reports were added to the VAERS database than any single
vaccine has had cumulatively over the past 31 years. This is clearly a safety signal,
further studies need to be done and Plaintiff should not be forced to participate in these
28. None of the currently available experimental vaccines for COVID-19 has
received final approval from the FDA. Rather, each one of the COVID-19 experimental
vaccines is an unapproved product that has been granted EAU. The FDA refers to the
classified as experimental.
29. The statute granting the FDA the power to authorize a medical product for
emergency use requires that the person being administered the unapproved product be
advised of his and her right to refuse administration of the product. See 21 U.S.C. §
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360bbb-3(e)(1)(A) (“Section 360bbb-3”). Additionally, terms and conditions of EAUs
preempt state and local laws that would impose obligations that are inconsistent with
those terms and conditions. Here, the defendant does not inform Plaintiff of her right to
refuse administration of the experimental vaccine. In fact, Plaintiff is not given a choice
as to whether or not she wants to participate in the experimental vaccine trials. The only
choice the Plaintiff has is to join the experimental trial and be injected with the
balance between giving people the option of having access to experimental medical
products during public emergencies, while also assuring that no one is forced to accept
recognizes the well-settled doctrine that medical experiments, better known in modern
parlance as “clinical research”, may not be performed on human subjects without the
express, informed consent of the individual receiving treatment. This right to avoid the
imposition of human experimentation is fundamental and has its roots in the Nuremberg
Code of 19478 and has been ratified by the 1964 Declaration of Helsinki, and further
8The Nuremberg Code is a medical ethics code issued based on laws under which the Nazi
criminals were judged for conducting horrible medical experiments during the Second World
War, in the physicians’ trial known by the name Nuremberg Trial. The Nuremberg Code later
constituted the base for the Helsinki Declaration Legislation.
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THE UNIVERSAL PROHIBITION ON HUMAN
EXPERIMENTATION WITHOUT CONSENT
31. Among the horrors that emerged from the rubble of World War II were
an International Military Tribunal (“IMT”). Under the aegis of the IMT, the creation of U.S.
military tribunals for the trial of “lower- level” war criminals, such as doctors accused of
conducting medical experiments without the subject’s consent was authorized.9 A U.S.
experiments, which included the testing of drugs for immunizations against malaria,
epidemic jaundice, smallpox, and cholera. “In every single instance appearing in the
record,” the tribunal concluded, “subjects were used who did not consent to the
experiments.” The tribunal sentenced seven of the doctors to death and the remaining
eight to life in prison. As part of its final judgement, the tribunal promulgated the
32. Point One of the Nuremberg Code states: “The voluntary consent of the
human subject is absolutely essential.” This standard has since been repeatedly ratified
and adopted around the globe, in laws, treaties, regulations, and ethical guidelines for
medical research. For example, in 1964, the World Medical Association adopted the
Declaration of Helsinki, which provides that human subjects “must be volunteers and
9Sources for the historical facts set forth herein can be found in Abdullahi v. Pfizer, Inc., 562 F.3d
163 (2d Cir. 2009), which explains in detail the history and the reason why the prohibition
against nonconsensual human experimentation should be regarded as a jus cogens norm.
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33. For these and other reasons, the prohibition against nonconsensual
human experimentation must be regarded not only as established by U.S. law and
regulations, but also as broadly recognized by all nations as to constitute a jus cogens
mRNA in a lipid package. This mRNA enters the host’s cells and hijacks the cells,
causing them to produce the spike protein of the coronavirus, which elicits the
development of antibodies.10 The human host cells respond to the spike protein and
elicit cell signaling.11 The spike protein produced by the new COVID-19 experimental
vaccines may also affect the host cells.12 Scientists recommend that we monitor the
10Suzuki YJ, Gychka SG. SARS-CoV-2 Spike Protein Elicits Cell Signaling in Human Host
Cells:
Implications for Possible Consequences of COVID-19 Vaccines. Vaccines (Basel). 2021;9(1):36.
Published 2021 Jan 11. doi:10.3390/vaccines9010036
11 Id.
12 Id.
13 Id.
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further investigations on the effects of the SARS-CoV-2 spike protein on human cells
35. A recent study suggests that the SARS-CoV-2 spike protein can by itself
trigger cell signaling that can lead to various biological processes.15 The scientists who
conducted the study concluded, “It is reasonable to assume that such events, in some
cases, result in the pathogenesis of certain diseases.”16 Despite the experimental nature
of the vaccine and the numerous adverse side effects related to the experimental
vaccine including, but not limited to, death through anaphylactic shock 17, thrombosis
14 Id. (“However, we need to consider their long-term consequences carefully, especially when
they are administered to otherwise healthy individuals as well as young adults and children. In
addition to evaluating data that will become available from SARS-CoV-2 infected individuals as
well as those who received the spike protein-based vaccines, further investigations of the
effects of the SARS-CoV-2 spike protein in human cells and appropriate animal models are
warranted.”)
15 Id.
16Suzuki YJ, Gychka SG. SARS-CoV-2 Spike Protein Elicits Cell Signaling in Human Host
Cells: Implications for Possible Consequences of COVID-19 Vaccines. Vaccines (Basel).
2021;9(1):36. Published 2021 Jan 11. doi:10.3390/vaccines9010036.
17Allergic Reactions Including Anaphylaxis After Receipt of the First Dose of Pfizer-BioNTech
COVID-19 Vaccine-United States, December 14-23, 2020. MMWR Morb Mortal Wkly Rep
2021; 70:46-51. DOI: http://dx.doi.org/10.15585/mmwr.mm7002e1.
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with thrombocytopenia syndrome18, blood clots, multi-system autoimmune disorders
and multi-organ failure19 , and the fact that some scientists have concluded that it is
reasonable to assume the experimental vaccine will result in the pathogenesis of certain
diseases.
the Plaintiff, an ultimatum - if you want to keep your job, continue to feed your family,
and avoid bankruptcy, you must be injected with the experimental COVID-19 vaccine.
38. Seeking to temper the otherwise harsh results that would obtain where a
discharge from employment was impelled by the employer's desire to contravene public
18 Safety monitoring of the J&J/Janssen vaccine suggests a risk of an adverse event called
thrombosis with thrombocytopenia syndrome (TTS), which involves blood clots with low
platelets. Platelets are a type of blood cell that help blood clot. On April 13, the U.S. Food and
Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC)
suggested pausing administration of the AD26.COV2.S Johnson & Johnson (JJ) vaccine to
allow investigation of several cases of a severe thrombosis with thrombocytopenia occurring
post- vaccination. This announcement came on the heels of the initial reports of similar events
in individuals receiving the CHaDOx1 nCov-19 AstraZeneca (AZ) vaccine outside the United
States. Clinical and laboratory characteristics of TTS have recently been reported. This
syndrome has been termed “vaccine-induced prothrombotic immune thrombocytopenia (VIPIT)”
or “vaccine- induced immune thrombotic thrombocytopenia (VITT)” but is now termed
“thrombosis with thrombocytopenia syndrome (TTS)” by the CDC and FDA. James B. Bussel,
MD et al., American Society of Hematology, Thrombosis with Thrombocytopenia Syndrome
(also termed Vaccine- induced Thrombotic Thrombocytopenia), April 29, 2021.
19 Id.
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policy, an exception to the common law doctrine of at-will employment was
established.20
39. That exception, created in Harless v. First National Bank, 162 W.Va. 116,
40. The West Virginia Supreme Court has identified the areas from which
41. “To identify the sources of public policy for purposes of determining
opinions.”23
20See Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 772 S.E.2d 350 (W. Va. 2015); See
also Wright v. Standard Ultramarine and Color Co., 141 W.Va. 368, 382, 90 S.E.2d 459, 468
(1955) (recognizing that at- will employees serve at will and pleasure of their employers and
may be discharged at any time, with or without cause).
21Id. at 116, 246 S.E.2d at 271, syllabus; Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165,
772 S.E.2d 350 (W. Va. 2015).
22Birthisel v. Tri–Cities Health Services Corp., 188 W.Va. 371, 376, 424 S.E.2d 606, 611 (1992);
Frohnapfel v. ArcelorMittal USA LLC, 235 W.Va. 165, 169 (W. Va. 2015).
23 Syl. Pt. 2, Birthisel, 188 W.Va. at 372, 424 S.E.2d at 607.
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42. “Substantial public policy” has been defined by the Supreme Court as “not
employees alike.”24 The Court recognized in Syllabus Point 3 of Birthisel that ““[i]nherent
in the term ‘substantial public policy’ is the concept that the policy will provide specific
licensing statutes contained specific provisions that addressed the allegedly improper
for medical products for use in emergencies. That law states that where a medical
product is “unapproved” then no one may be mandated to take it. At Section (e)(1)(A) of
(ii) of the significant known and potential benefits and risks of the
emergency use of the product, and of the extent to which such benefits
and risks are unknown; and
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(iii) of the alternatives to the product that are available, and of their
benefits and risks.
(v) that the Secretary has authorized the emergency use of the product;
(vi) of the significant known and potential benefits and risks of such use,
and of the extent to which such benefits and risks are unknown; and
44. The Defendant violated at least two quoted sections (ii and iii). The
Defendant did not advise Plaintiff of the “known and potential benefits and risks of such
emergency use of the product, and of the extent to which such benefits and risks are
unknown” of the COVID-19 experimental vaccine. Additionally, Plaintiff was not provided
evidenced by a letter dated May 4, 2021, wherein she specifically cited Section
360bbb-3 and the provision forbidding the mandating of the vaccine. (Exhibit “D” - May
4, 2021 Letter from Plaintiff). In response, Plaintiff received a letter from Defendant
dated May 7, 2021 from Nate McBride, Senior Human Resources Manager, which
stated as follows:
Hi Stephanie,
Thank you for reaching out - I just left you a voicemail to discuss. Sherry
is correct in her guidance. Enlivant has a duty to provide a safe and
healthy work environment for our vulnerable senior citizen residents and
valued team members. Public health experts advise that vaccination is
the most effective way to combat the spread of the deadly COVID-19
virus and minimize its impacts. To best protect our residents, employees,
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and visitors, all Enlivant employees must be vaccinated or have an
approved accommodation.
If you have any questions or would like to discuss this further, please
don't hesitate to reach out to me.
Best wishes,
Nate McBride
Senior Human Resources Manager
Enlivant
(Exhibit “E” - May 7, 2021 Letter from Nate McBride). Thereafter Plaintiff was
discharged in retaliation for her refusal to take the unapproved and non-mandatory
vaccine, as well as for her insistence that defendant comply with existing federal law
and public policy. Such conduct is in violation of a substantial public policy of this state,
as defined by the State Supreme Court, and is the basis for an exception to the at-will
employment doctrine.
45. The federal statutes and regulations discussed herein are sufficient so as
especially after more than 1.5 years have elapsed since the event giving rise to the
emergency which formed the basis of the emergency use authorization occurred.
47. Defendants’ wrongful acts have caused injury to Plaintiff. Plaintiff has
suffered lost wages, loss of earnings capacity, lost benefits, lost future earnings, mental
unlawful actions against them. Plaintiff suffered these injuries as the result of
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Defendants’ actions and in all reasonable probability will continue to suffer these injuries
in the future. Plaintiff also seeks punitive damages as the result of Defendants’
49. This is a cause of action pursuant to West Virginia Code Section 55-13-1,
such as the defendant, can mandate the unapproved non-mandatory COVID-19 vaccine
50. The Plaintiff asserts that this action involves a present justiciable
51. The Plaintiff asserts that she has been wrongfully discharged in violation
of state and federal law, as outlined herein and that she is entitled to have this Court
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54. Plaintiff was threatened with discharge and ultimately discharged for
choosing not to take an FDA unapproved experimental vaccine which federal law states
cannot be mandated because insufficient trials have been conducted and its long-term
effects are not known. Currently there are many new reports of adverse effects and
even deaths resulting from the experimental vaccine. Plaintiff was terminated for
refusing to take an experimental vaccine which federal law states cannot be mandated,
55. Pursuant to Rule 65(a) of the West Virginia Rules of Civil Procedure, the
petitioner hereby moves for a preliminary injunction. Plaintiff asserts that there exists the
reasonable likelihood of irreparable harm to the Plaintiff, and others similarly situated,
without the injunction; that there is no reasonable likelihood of harm to the defendant by
being required to comply with federal law; that Plaintiff is likely to succeed on the merits
of the underlying claim; and that the public interest is served in requiring the defendant
injunction, after notice and hearing, restraining the Defendant, their agents,
representatives, or anyone acting on their behalf until further order of the Court from
terminating Plaintiff for the sole reason of their refusal to be injected with the
experimental COVID-19 vaccine, as well as ordering and directing the defendant to re-
preliminary injunction, given the time sensitive nature of the circumstances, including
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both the financial harm being incurred daily by the Plaintiff, as well as the potential for
PRAYER
1. That the Court schedule this matter for an expedited hearing for a
preliminary injunction enjoining the defendant from terminating employees, including the
Plaintiff, for refusing to take a non-mandatory, unapproved vaccine, and to direct that
2. That the Court declare and decree that the defendant may not terminate
attorney fees and expenses for the retaliatory discharge of the Plaintiff; and
4. That the Court award punitive damages against the defendant; and
5. For such other and further relief as the Court deems just and fit.
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STEPHANIE MCCUTCHEON
By Counsel
/s John H. Bryan
John H. Bryan (WV Bar No. 10259)
411 Main Street
P.O. Box 366
Union, WV 24983
[email protected]
(304) 772-4999
Fax: (304) 772-4998
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E-FILED | 6/3/2021 3:14 PM
CC-13-2021-C-48
Greenbrier County Circuit Clerk
Louvonne Arbuckle