STATE OF NORTH CAROLINA

IN THE GENERAL COURT OF JUSTICE

NEW HANOVER COUNTY

SUPERIOR COURT DIVISION
CASE NO. ___________________

Michael Jason Morgan,
Plaintiff,
Muscleworx Fitness Systems, L.L.C.,
Plaintiff,
v.

COMPLAINT, APPLICATION FOR
DECLARATORY JUDGEMENT
AND INJUNCTIVE RELIEF

Governor Roy Cooper,
Defendant.
NOW COMES Plaintiff, Michael Jason Morgan and Muscleworx Fitness
Systems, L.L.C., pursuant to Rule 65 of the North Carolina Rules of Civil Procedure,
N.C. Gen. Stat. §1-485, and N.C. Gen. Stat. § 7A-245, and files this COMPLAINT,
APPLICATION FOR DECLARATORY AND INJUNCTIVE RELIEF.
PARTIES
1. Plaintiff Michael Jason Morgan is a citizen and resident of New Hanover
County, North Carolina.
2. Plaintiff Muscleworx Fitness Systems L.L.C., (hereinafter Muscleworx) is a
Limited Liability Company registered with the North Carolina Secretary of
State. Its principal place of business is located at 6331 Carolina Beach Rd. Ste.
5 Wilmington, NC 28412. Plaintiff Morgan is the owner and registered agent
for Muscleworx.
3. Defendant Roy Cooper, (hereinafter Gov. Cooper) upon information and belief
is a resident of Wake County, N.C., has acted in his official capacity as the
Governor of North Carolina, and is responsible for enacting and requiring
enforcement of the Executive Orders in question, related to the COVID-19
pandemic, which has forced the closure of certain businesses in North
Carolina.
Page   1

 JURISDICTION
4. N.C. Gen. Stat. § 7A-245 gives this Honorable Court subject matter jurisdiction
over this matter. “Injunctive and declaratory relief to enforce or invalidate
statutes; constitutional rights. (a) The superior court division is the proper
division without regard to the amount in controversy, for the trial of civil
actions where the principal relief prayed is (1) Injunctive relief against the
enforcement of any statute, ordinance, or regulation; (2) Injunctive relief to
compel enforcement of any statute, ordinance, or regulation; (3) Declaratory
relief to establish or disestablish the validity of any statute, ordinance, or
regulation; or (4) The enforcement or declaration of any claim of constitutional
right.”
5. N.C. Gen. Stat. § 1-75.4(1) gives this Court personal jurisdiction over all of the
parties.
VENUE
6. Venue is proper in that Plaintiff is a citizen resides in New Hanover County,
North Carolina.
FACTS
7. On March 10, 2020, Gov. Cooper issued Executive Order 116 (See Exhibit 1)
and declared a State of Emergency for the State of North Carolina, effective
immediately.
8. Later, Gov. Cooper issued Executive Order 120 (See Exhibit 2) and ordered
the closure of certain businesses, and specifically indoor exercise facilities
(gyms), scheduled to be effective March 25, 2020 at 5:00 p.m.
9. Plaintiff complied with Gov. Cooper’s Executive Order and suspended the
operation of his business.
10. Gov. Cooper issued Executive Order 121 (See Exhibit 3), to become effective
on March 30, 2020 at 5:00 p.m., issuing further directives closing businesses.
11. Executive Order 121, in Section 2 (c) contained the following language: “For
purposes of this Executive Order, a COVID-19 Essential Business and
Page   2

 Operation includes the following businesses, not-for-profit organizations and
educational institutions.
1. Businesses that meet Social Distancing Requirements.
Businesses, not-for-profit organizations and educational institutions
that

conduct

operations

while

maintaining

Social

Distancing

Requirements:
a. Between and among its employees, and
b. Between and among employees and customers except at the
point of sale or purchase.”
12. Plaintiff’s business remained closed until April 30, 2020, when Plaintiff reopened his business to avoid the loss of his property, i.e., the property interest
in his business.
13. This is commonly known and referred to as “the fruits of his labor” and is
protected as a fundamental right in the North Carolina State Constitution.
14. Plaintiff followed and exceeded the Center for Disease Control Guidelines
required for essential businesses in Executive Order 121.
15. Plaintiff was charged by citation by a Deputy with the New Hanover County
Sheriff’s Department with violating N.C. Gen. Stat. § 14-228A.20A. (See
Exhibit 4 – address and date of birth redacted)
16. Plaintiff was threatened by the New Hanover County Sheriff’s Department
with forced closure of his business, by padlocking the doors, if he did not comply
and remain closed.
17. As provided in Section F of Executive Order 121, Plaintiff applied for and
received a letter from the North Carolina Department of Revenue, (hereinafter
NCDOR) which was allowed by the wording of Executive Order 121.
18. The NCDOR letter stated in part “… you are allowed to continue operating with
the submission of this request until the NCDOR responds.”
19. To date, the NCDOR has never responded to Plaintiff’s request.
20. However, Gov. Cooper issued Executive Order 138 (See Exhibit 5), to be
effective May 8, 2020 at 5:00 p.m. This Executive Order removed the Essential
Page   3

 and Non-Essential classifications and reiterated that certain entities, and
specifically gyms, and ordered these businesses to remain closed.
21. Lastly Gov. Cooper issued Executive Order 141 (See Exhibit 6) to allow the
re-opening of certain Non-Essential businesses, to be effective May 22, 2020 at
5:00 p.m.
22. Executive Order 141, in Section 8, further orders the closure of Plaintiff’s
business.
23. To date Plaintiff’s business remains closed.
STATE CONSTITUTIONAL CLAIM
24. Plaintiff hereby incorporates by reference the allegations contained in
Paragraphs 1-23 as set forth herein.
25. The North Carolina State Constitution states “We hold it to be self-evident that
all persons are created equal; that they are endowed by their Creator with
certain inalienable rights; that among these are life, liberty, the enjoyment of
the fruits of their own labor, and the pursuit of happiness.” N.C. Const. art. 1
§1.
26. Gov. Cooper’s Executive Orders 120, 121, 138, and 141 have forced the closure
of Plaintiff’s business and forced him to suffer the loss of “the fruits of his
labor.”
27. Plaintiff had enjoyed the fruits of his own labor until Gov. Cooper’s Executive
Orders violated these rights, presumably in the interest of the public’s health
and welfare.
28. Gov. Cooper’s Executive Orders 120, 121, 138, and 141 violate Plaintiff’s
Constitutional rights by denying him the “enjoyment of the fruits” of his own
labor without any rational basis to protect the public from harm.
STATE CONSTITUTIONAL ARGUMENT FOR INJUNCTIVE RELIEF
29. Plaintiff hereby incorporates by reference the allegations contained in
Paragraphs 1-28 as set forth herein.
Page   4

 30. “The basic constitutional principle of personal liberty and freedom embraces
the right of the individual to be free to enjoy the faculties with which he has
been endowed by his Creator, to live and work where he will, to earn his
livelihood by any lawful calling, and to pursue any legitimate business, trade
or vocation.” Roller v. Allen, 245 N.C. 516, 96 S.E.2d 851 (1957)
31. Plaintiff’s business is a legal calling, and Plaintiff has taken the efforts to
register his business with the Secretary of State as a limited liability company.
32. “While many of the rights of man, as declared in the Constitution, contemplate
adjustment to social necessities, some of them are not so yielding. Among them
the right to earn a living must be regarded as inalienable.” King v. Town of
Chapel Hill, 758 S.E.2d 364 (2014)
33. The right to work and earn a livelihood is a property right that may not be
denied except under the police power of the State in the public interest for
reasons of health, safety, morals or public welfare.
34. Plaintiff asserts the property interest in his business and the “fruits of his
labor” are fundamental rights that are inalienable rights.
35. The Supreme Court in King held “This Court's duty to protect fundamental
rights includes preventing arbitrary government actions that interfere with
the right to the fruits of one's own labor.” King at 371 citing N.C. Const. art. I,
§ 1; Roller, 245 N.C. at 525, 96 S.E.2d at 859.
36. “A state cannot, under the guise of protecting the public, arbitrarily interfere
with private business or prohibit lawful occupations or impose unreasonable
and unnecessary restrictions upon them.” Roller, at 859, citing Louis K. Liggett
Co. v. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 59, 73 L.Ed. 204.
37. Plaintiff asserts that Defendant Gov. Cooper’s Executive Orders 120, 121, 138,
and 141 are arbitrary, capricious, and violate Plaintiff’s fundamental rights to
the fruits of his own labor without any compelling state interest that is
narrowly tailored to achieve its results
38. Plaintiff shows this Court that:

Page   5

 a. Gov. Cooper’s Executive Order 120 §1(b) prohibits the operation of
Plaintiff’s business and deprives of him of the “fruits of his labor”
without any further explanation or justification as to why Plaintiff’s
business imposes any threat to public health and/or safety.
b. Gov. Cooper’s Executive Order 121 fails to distinguish businesses in any
form other than Essential/Non-Essential and contradicts Executive
Order 120 by allowing Plaintiff to request his business to be declared
essential. Executive Order 120 and 121 fail to specify any conditions
imposed by Plaintiff’s operation of his business that impose any threat
to public health and/or safety.
c. Gov. Cooper’s Executive Order 138 §5 (b)(2) reiterated the Governor’s
desire for Plaintiff and other’s businesses to remain closed, further
depriving him of the “fruits of his labor.” Executive Order 138 fails to
specifically provide any reasons for why Plaintiff is denied this
fundamental right.
d. Gov. Cooper’s Executive Order 141 §8 (A)(2) requires the closure of
Plaintiff’s business for a minimum of an additional five (5) weeks ending
no earlier than June 26, 2020 at 5:00 p.m. There is no indication within
Executive Order 141 that specifically provides any reasons for why
Plaintiff is denied this fundamental right. In fact, in §8 (C) the order
allows professional athletes and athletes performing on an agreement
with an educational institution to receive a scholarship or other benefit
to be exempted from this section of Executive Order 141.
39. The only explanation provided to date has been through the media from Dr.
Mandy Cohen, the Secretary of the North Carolina Health and Human
Services. Dr. Cohen, in response to media questions about why gyms were
prohibited had stated ““You know as you work out you obviously breath more
heavily and more intensely,” “This a viral respiratory pathogen. It is something
that is expelled through your droplets of your mouth and your nose, which
obviously come out with more force and can be at more distance when you are
Page   6

 working out.” "Some had said is it because of the sweat. It is not an issue related
to sweat. It really is more about the heavier breathing that you do naturally
when you are doing any of the athletics in a gym setting. But it is also knowing
that when you are working out, folks are not going to be wearing a mask
covering

in

order

to

get

good

ability

to

breath

in

deeply.”

https://www.wect.com/2020/05/21/live-state-health-officials-give-an-update-covid-pandemic/

40. Executive Order 120 fails to require and even recommend persons to wear
masks. Executive Order 120 fails to mention prohibitions on any activities
that would increase or effect persons heart rate and/or increase the rate at
which the inhale and exhale their own breath.
41. Executive Order 121 is the government’s first mention of forcing non-essential
persons to remain at home. Section 3 (iii) of Executive Order 121 authorizes
citizens to exercise if the form of running and biking, which are commonly
known to increase the persons heath rate and increase their rate of breath.
However, Executive Order 121 does not require these individuals to wear
masks or to avoid entering confined spaces while their rate of breath remains
at an increased level. These persons could legally ride a bicycle to the liquor
store and engage in the same conduct Defendant proposes to prohibit for the
sake of preventing the spread of Covid-19 but cannot, under the threat of
criminal prosecution, ride a stationary bike inside of a gym.
42. Executive Order 121 fails to require or recommend the usage of masks.
43. Executive Order 138 is the first Executive Order, effecting Plaintiff’s business,
that mentions the wearing of facial coverings. Gov. Cooper declared a state of
emergency on March 10, 2020 (see Executive Order 116), prohibits the
operation of Plaintiff’s business effective March 25, 2020 (see Executive Order
120), only recommends the wearing of facial coverings effective May 8, 2020
(see Executive Order 138), but would propose that gyms cannot meet the social
distancing requirements because users will not wear masks and will breathe
heavier than normal.

Page   7

 44. The protections provided to the citizens of North Carolina through the State’s
Constitution is greater than what is provided in the United States’
Constitution. “Our Constitution is more detailed and specific than the federal
Constitution in the protection of the rights of its citizens.” Lamb v. Wedgewood
South Corp., 308 N.C. 419, 302 S.E.2d 868 (1983)
45. Our Courts have taken a liberal interpretation of the safeguards our State
Constitution provides to the protection of its citizens lives and property against
government intrusion. State v. Harris, 216 N.C. 746, 6 S.E.2d 854 (1940).
46. Our State Supreme Court, in Sale, held “This Court has recognized a direct
action under the State Constitution against state officials for violation of rights
guaranteed by the Declaration of Rights.” Sale v. State Highway and Public
Works Comm., 242 N.C. 612, 89 S.E.2d 290.
47. Section 1, Article I, of the State Constitution of North Carolina guarantees to
the citizens of the State 'the enjoyment of the fruits of their own labor' and
declares this an inalienable right. State v. Warren, 114 s.e.2d 660, 252 N.C.
690 (1960)
48. “While it may adopt such regulations relating thereto as are reasonably
necessary to promote the accomplishment of a public good or to prevent the
infliction of a public harm, the legislature can neither deny nor unreasonably
curtail the common right secured to all men by Sections 1 and 17 of the State
Constitution to maintain themselves and their families by the pursuit of the
usual legitimate and harmless occupations of life.” State v. Ballance, 229 N.C.
764, 51 S.E.2d 731 (1949) citing State v. Harris, 216 N.C. 746, 6 S.E.2d 854.
49. “In consequence, a statute which prevents any person from engaging in any
legitimate business, occupation, or trade cannot be sustained as a valid
exercise of the police power unless the promotion or protection of the public
health, morals, order, or safety, or the general welfare makes it reasonably
necessary.” Id at 735.

Page   8

 FEDERAL CONSTITUTIONAL CLAIM AND ARGUMENT
50. Plaintiff hereby incorporates by reference the allegations contained in
Paragraphs 1-49 as set forth herein.
51. Furthermore, the Executive Orders aforementioned violate Plaintiff’s liberty
interest as applied to the States through the Fourteenth Amendment to the
United States Constitution.
52. “While this court has not attempted to define with exactness the liberty thus
guaranteed, the term has received much consideration and some of the
included things have been definitely stated. Without doubt, it denotes not
merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those
privileges long recognized at common law as essential to the orderly pursuit of
happiness by free men.” Meyer v. Nebraska, 262 US 390 (1923)
53. “The established doctrine is that this liberty may not be interfered with, under
the guise of protecting the public interest, by legislative action which is
arbitrary or without reasonable relation to some purpose within the
competency of the state to effect.” Id at 400.
LEGISLATIVE INTENT
54. Plaintiff hereby incorporates by reference the allegations contained in
Paragraphs 1-53 as set forth herein.
55. The North Carolina Legislature has expressed its intent to provide the North
Carolina Governor with certain powers during natural disasters and other
man-made calamities.
56. N.C. Gen. Stat. 166A demonstrates the authority the Legislature has granted
to the Governor of North Carolina during gubernatorially declared states of
emergency.

Page   9

 57. On May 5, 2020, Senators Daniel, Sawyer, and Ford filed Senate Bill 712. (See
Exhibit 7)
58. The bill is entitled “AN ACT GUARANTEEING THE CONSTITUTIONAL
RIGHT OF NORTH CAROLINIANS TO ENJOYMENT OF THE FRUITS OF
THEIR OWN LABOR AND THE PURSUIT OF HAPPINESS BY LIMITING
CERTAIN PENALTIES FOR VIOLATIONS OF EXECUTIVE ORDERS AND
LOCAL PROHIBITIONS AND ACTIONS BY OCCUPATIONAL LICENSING
BOARDS.’ (See https://ncleg.gov/BillLookUp/2019/S712 )
59. The bill, as proposed, seeks to eliminate criminal penalties for anyone found in
violation of Gov. Cooper’s Executive Orders 118, 120, 121, 131, 135, and all
other Executive Orders subsequently issued that authorize criminal
enforcement of Gov. Cooper’s Executive Orders.
60. This bill, while only filed as of this time, has been referred to the Committee
on Rules and Operations of the Senate, but expresses serious concern amongst
members of the General Assembly that Governor Cooper has and continues to
over-step the authority granted to him by the General Assembly.
CLAIM FOR INJUNCTIVE RELIEF
61. Plaintiff hereby incorporates by reference the allegations contained in
Paragraphs 1-60 as set forth herein.
62. Rule 65 of the North Carolina Rules of Civil Procedure provide for a temporary
restraining order if “it clearly appears from specific facts shown by affidavit or
by verified complaint that immediate and irreparable injury, loss, or damage
will result to the applicant before the adverse party or that party's attorney
can be heard in opposition, and (ii) the applicant's attorney certifies to the court
in writing the efforts, if any, that have been made to give the notice and the
reasons supporting the claim that notice should not be required.”
63. Plaintiff shows this honorable Court that he has been forced to close the doors
of his business from March 25, 2020 to April 30, 2020.

Page   10

 64. That during the interim, Plaintiff applied for any and all forms of government
assistance offered to business owners, but was denied or was informed there
were insufficient funds to provide Plaintiff with financial relief.
65. That Plaintiff opened his business on April 30, 2020 due to the “necessity” he
had incurred to protect the property interest on his business.
66. Subsequently, that Plaintiff was criminally charged with a violation of N.C.
Gen. Stat. § 14-228A.20A for operating his business by members of the New
Hanover County Sheriff’s Department and was verbally warned that if he
continued to operate his business that his business would be padlocked by
Court order.
67. Plaintiff was forced to physically move his business from its previous location
to a new location within the city limits of Carolina Beach, N.C., in part, due to
financial burden placed on Plaintiff’s business by the forced closure.
68. Plaintiff cannot remain closed for an additional five (5) weeks, minimum, as
required by Executive Order 141 and remain financially viable.
69. Plaintiff will potentially be forced into bankruptcy and/or suffer irreparable
harm to his business and credit by the forced closure of his business.
70. Plaintiff seeks the following:
e. A Declaration that Plaintiff is entitled to the enjoyment of the “fruits of
his labor, free from the intrusion of the government, and that the
government intrusion is not narrowly tailored to avoid denying
Plaintiff’s State and/or Federal Constitutional rights,
f. An injunction and/or order prohibiting the enforcement of any and all
Executive Orders of Gov. Cooper that prohibit the operation of his
business, Muscleworx Fitness Systems, L.L.C., and,
g. An injunction and/or order prohibiting the enforcement of any and all
Executive Orders prohibiting members and guests of Muscleworx
Fitness Systems, L.L.C. from engaging in otherwise lawful conduct by
engaging in the use of Plaintiff’s business and equipment, and,
h. Any other just and equitable relief the Court deems proper.
Page   11

 ATTORNEY’S CERTIFICATION OF EFFORTS TO CONTACT OPPOSING
PARTY
I, Barry K. Henline, do certify to the Court, that I contacted the Office of Governor
Roy Cooper at 4:30 p.m. on Tuesday May 26, 2020. I spoke with the receptionist and
was directed to the voice mail box of Scarlett Hargress (sp.?) and thereby left a voice
mail message indicating my intention to file this Complaint and Application for
Declaratory and Injunctive Relief. I left my name and cell phone number, requested
to be contacted about the hearing, and indicated the county in which said filing would
take place.
Respectfully Submitted, this the 27th day of May, 2020.
By: ________________________________
Barry K. Henline
The Law Offices of Barry K. Henline, P.L.L.C
P.O. Box 15862, Wilmington, N.C. 28408
Office:910-523-6831
Fax: 910-398-8104
barrykhenline@outlook.com
State bar No. 46099

Page   12

 STATE OF NORTH CAROLINA

IN THE GENERAL COURT OF JUSTICE

NEW HANOVER COUNTY

SUPERIOR COURT DIVISION
CASE NO. ___________________

Michael Jason Morgan,
Plaintiff,
Muscleworx Fitness Systems, L.L.C.,
Plaintiff,
v.

VERIFICATION

Governor Roy Cooper,
Defendant.
I, Michael Jason Morgan, do hereby verify that I have read the Complaint, Application for
Declaratory Judgment and Injunctive Relief, and hereby swear under penalty of perjury that to the
best of my knowledge all of the facts and allegations contained within are true.

_________________________
Michael Jason Morgan
I, ______________________, Notary Public, do herby certify that Michael Jason Morgan
personally appeared before me this day and acknowledged the due execution of the foregoing
Verification for the purposes set forth therein.

Witness my hand and notarial seal, this the _____ day of May, 2020.

_____________________________(SEAL)
Page   13

Notary Public

 ******************************************************************************
CERTIFCATE OF SERVICE
I do hereby certify that I have served the foregoing Complaint, Application
for Declaratory and Injunctive Relief upon the Attorney/Party below by
delivering a copy of the summons and of the complaint to the natural person or by
leaving copies thereof at the defendant's dwelling house or usual place of abode with
some person of suitable age and discretion then residing therein, by delivering a copy
of the summons and of the complaint to an agent authorized by appointment or by
law to be served or to accept service of process or by serving process upon such agent
or the party in a manner specified by any statute, by mailing a copy of the summons
and of the complaint, registered or certified mail, return receipt requested, addressed
to the party to be served, and delivering to the addressee, by depositing with a
designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) a copy of
the summons and complaint, addressed to the party to be served, delivering to the
addressee, and obtaining a delivery receipt. As used in this sub-subdivision, "delivery
receipt" includes an electronic or facsimile receipt, or by mailing a copy of the
summons and of the complaint by signature confirmation as provided by the United
States Postal Service, addressed to the party to be served, and delivering to the
addressee.
Governor Roy Cooper
200 North Blount St.
Raleigh, N.C. 27601
919-814-2105
Rac3rd@gmail.com
By: ________________________________
Barry K. Henline
The Law Offices of Barry K. Henline, P.L.L.C
P.O. Box 15862, Wilmington, N.C. 28408
Office:910-523-6831
Fax: 910-398-8104
barrykhenline@outlook.com
State bar No. 46099
Page   14