Majebe v. North Carolina Board of Medical Examiners
416 S.E.2d 404
N.C. Ct. App.
1992
Check Treatment
WYNN, Judge.

M.C. Majebe is an acupuncturist, naturopath, and the sole proprietor and owner of the Chinese Acupuncture and Herbology Clinic located in Buncombe County. Pursuant to N.C. Gen. Stat. § 90-21 (1990), the Board of Medical Examiners of the State of North Carolina, on 2 January 1990, requested the Attorney General to investigate Ms. Majebe, regarding her possible violation of N.C. Gen. Stat. § 90-18 (1990), which prohibits the unauthorized practice of medicine. Assistant Attorney General Martha K. Walston initiated an investigation of plaintiff Majebe by the State Bureau of Investigation.

Upon affidavit of defendant Special Agent Robert Kaiser, a séarch warrant for Ms. Majebe’s Clinic was issued on 5 June 1990. The search was conducted pursuant to this warrant, and patient files, financial records, and diplomas were seized.

*257 Ms. Majebe and her patients requested injunctive and declaratory relief and damages regarding the criminal investigation of plaintiff Majebe for the practice of medicine without a license. From the summary judgment dismissing their complaint, Majebe and her patients appealed. All records have been returned to plaintiff Majebe, and she continues to practice acupuncture, herbology, and naturopathy without a medical license.

I. Declaratory Judgment

In their first assignment of error, plaintiffs contend that the trial court erred in granting summary judgment in favor of the North Carolina Board of Medical Examiners and its individual members (hereinafter “Board”) and defendants Thornburg, Morgan and Kaiser. The trial judge determined that plaintiffs, in seeking two declarations, failed to forecast a controversy within the purview of the North Carolina Declaratory Judgment Act, N.C. Gen. Stat. § 1-253 (1983).

A trial court has jurisdiction to render a declaratory judgment only when the complaint shows the following:

(1) that a real controversy exists between or among the parties to the action;
(2) that such controversy arises out of opposing contentions of the parties, made in good faith, as to the validity or construction of a statute, . . . ; and
(3) that the parties to the action have or may have legal rights, or are or may be under legal liabilities which are involved in the controversy, and may be determined by a judgment or decree in the action ....

Carolina Power and Light Co. v. Iseley, 203 N.C. 811, 820, 167 S.E.2d 56, 60 (1933). See also Sharpe v. Park Newspapers of Lumberton, 317 N.C. 579, 347 S.E.2d 25 (1986). An actual controversy exists when litigation arising out of conflicting contentions as to rights and liabilities appears unavoidable. Gaston Board of Realtors, Inc. v. Harrison, 311 N.C. 230, 316 S.E.2d 59 (1984).

The first of the two declarations sought by plaintiffs was whether the Board was required to refer the information concerning Majebe to the local district attorney under N.C. Gen. Stat. § 90-21 when it found a violation of N.C. Gen. Stat. § 90-18. For the reasons *258 which follow, we find no merit to plaintiffs’ argument that an actual controversy existed respecting this issue.

In State v. Loesch, 237 N.C. 611, 75 S.E.2d 654 (1953), defendant was prosecuted for practicing medicine without a license in violation of N.C. Gen. Stat. § 90-18. Defendant sought to quash the bill of indictment on the basis of the State’s failure to comply strictly with the provisions of section 90-21. Section 90-21 provides, in pertinent part,

In case of the violation of the criminal provisions of G.S. 90-18, the Attorney General of the State of North Carolina, upon complaint of the Board of Medical Examiners of the State of North Carolina, shall investigate the charges preferred, and if in his judgment the law has been violated, he shall direct the district attorney of the district in which the offense was committed to institute a criminal action against the offending persons.

N.C. Gen. Stat. § 90-21. The Loesch Court determined that the procedures in section 90-21 “merely establish a method whereby the Board of Medical Examiners of the State of North Carolina may procure an investigation by the Attorney-General with respect to alleged violations of sections 90-18 to 90-20 of our General Statutes.” Loesch, 237 N.C. at 613, 75 S.E.2d at 656.

In the instant case, the Board followed the language of section 90-21 and referred to defendant Attorney General the information it had obtained concerning Ms. Majebe. The Attorney General then complied with the language of the statute and initiated the investigation of plaintiff Majebe by the Diversion Investigative Unit of the State Bureau of Investigation. As Loesch indicates, there is nothing in the language of section 90-21 which requires the Board to refer alleged violations of section 90-18 to the district attorney instead of to the Attorney General. Since there was no controversy regarding section 90-21, we hold that the trial court properly granted summary judgment in favor of defendants on plaintiffs’ claim for declaratory relief.

Plaintiff Majebe sought a second declaration as to the validity of the search of her office, urging the trial court to declare the search warrant invalid and direct the return of her property. Plaintiff argued that the warrant failed to meet the requirement of particularity, the information in the affidavit was stale, and the *259 statements in the affidavits were conclusions of law. We also agree with the trial court’s decision to grant summary judgment in favor of defendants on this issue.

In Adams v. Dep’t of N.E.R., 295 N.C. 683, 249 S.E.2d 402 (1978), plaintiffs challenged the constitutionality of a statute which allegedly authorized warrantless searches. Our Supreme Court found that there was no controversy because the plaintiffs had not been subjected to actual searches. Id. at 705, 249 S.E.2d at 415. Plaintiff in the instant case contends that the Adams decision implies that a declaratory judgment is appropriate after a search has occurred. We find no merit to this argument. In Adams, plaintiffs were not challenging the validity of a search but rather the statute which authorized the search. There was no controversy because it was not clear that plaintiffs would be subjected to a search in the future. Plaintiff in the case at bar challenges a search, not a statute which authorizes a search, and the search already has occurred. There simply is no controversy appropriate for a declaratory judgment. If, in the future, plaintiff is prosecuted by the State, that proceeding will be the proper forum to challenge the search. Accordingly, we find the plaintiff’s assignment of error to be without merit.

II. 42 U.S.C. § 1983

Plaintiffs further contend that the trial court committed prejudicial error in granting summary judgment in favor of defendants on their claims for relief pursuant to 42 U.S.C. § 1983, based on the violation of plaintiff Majebe’s rights. The rights allegedly violated by defendants include an illegal search and seizure, invasion of privacy, and selective enforcement of the provisions of the Medical Practice Act. We disagree.

Section 1983 affords the claimant a civil remedy for a deprivation of federally protected rights by persons acting under the color of state law. In pertinent part, section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen pf the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

*260 42 U.S.C. § 1983. To state a cause of action under section 1983, a claimant must allege an intentional deprivation of a protected right. Rizzo v. Goode, 423 U.S. 362, 46 L.Ed.2d 561 (1976).

In the case of In re Guess, 327 N.C. 46, 393 S.E.2d 833 (1990), cert. denied, — U.S. —, 112 L.Ed.2d 774 (1991), the Board of Medical Examiners conditionally revoked a physician’s license for administering homeopathic medical treatments to his patients. Our Supreme Court held that the Board’s decision did not invade the physician’s privacy right by invading his right to select his method of practice: “ ‘[T]here is no right to practice medicine which is not subordinate to the police power of the states.’ ” Id. at 57, 393 S.E.2d at 839 (quoting Lambert v. Yellowsley, 272 U.S. 581, 596, 71 L.Ed. 422, 429 (1926)). It is clear from the Court’s decision in Guess that there exists no protected privacy right to practice unorthodox medical treatment, here acupuncture.

Plaintiffs also argue that plaintiff Majebe’s right to be free from illegal searches and seizures under the fourth amendment was violated. We disagree. Agent Kaiser relied upon a memorandum from the Attorney General’s office regarding the investigation of Ms. Majebe, a detailed letter from the Board to the Attorney General, and published advertisements for the Chinese Acupuncture & Herbology Clinic when applying for the warrant to search the Clinic. Kaiser also interviewed Mr. John Voda who confirmed that he took his wife to the office of Ms. Majebe for treatment of insomnia and a nervous condition. In the opinion of this Court, there was sufficient evidence from which the trial court could conclude that there were no genuine issues of material fact regarding the violation of Majebe’s fourth amendment rights.

Finally, as to plaintiffs’ contention that defendants selectively enforced the provisions of N.C. Gen. Stat. § 90-18, we agree with the trial court’s decision to grant summary judgment in favor of defendants. In order to show selective prosecution, this Court has stated the following:

The generally recognized two-part test to show discriminatory selective prosecution is (1) the defendant must make a prima facie showing that he has been singled out for prosecution while others similarly situated and committing the same acts have not; (2) upon satisfying (1) above, he must demonstrate that the discriminatory selection for prosecution was invidious and done in bad faith in that it rests upon such impermissible *261 considerations as race, religion, or the desire to prevent his exercise of constitutional rights.

State v. Howard, 78 N.C. App. 262, 266-67, 337 S.E.2d 598, 601-02 (1985), disc, review denied, 316 N.C. 198, 341 S.E.2d 581 (1986). As stated repeatedly by our Supreme Court, a party alleging selective enforcement must present evidence of a pattern of discrimination, “ ‘an evil eye and an unequal hand.’ ” Grace Baptist Church v. City of Oxford, 320 N.C. 439, 445, 358 S.E.2d 372, 376 (1987) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 30 L.Ed. 220, 227 (1886)). Our Supreme Court has rejected the following argument:

He complains that he has been singled out for prosecution; that others have been guilty of unethical conduct who have not been punished or who have not received as severe punishment as did he, and, in effect, because all have not been prosecuted and punished, he should not be.
This is equivalent to the position that until all murderers, robbers, and other criminals have been convicted and punished, the remainder, even though their guilt is clearly established, should not be either. The fallacy of this position is apparent from a statement of his contentions.

State Bar v. Frazier, 269 N.C. 625, 636, 153 S.E.2d 367, 374, cert. denied, 389 U.S. 826, 19 L.Ed.2d 81 (1967).

In the case at bar, plaintiff Majebe alleged no pattern of intentional discrimination by any of the defendants. Furthermore, plaintiff did not assert that defendants relied upon an invidious classification such as race, religion, or national origin. We, therefore, find that the trial court did not err in granting summary judgment in favor of defendants on this issue.

III. Trespass

Plaintiff Majebe further assigns error to the trial court’s order granting summary judgment in favor of defendant Kaiser on her claim for trespass against Kaiser.

The civil action of trespass to land protects the possessory interest in land from unpermitted physical entry. See e.g., Paris v. Carolina Portable Aggregates, Inc., 271 N.C. 471, 157 S.E.2d 131 (1967); Wall v. Trogdon, 249 N.C. 747, 107 S.E.2d 757 (1959). *262 The entry in the case at bar, however, was a permitted entry since defendant Kaiser conducted the search pursuant to a search warrant issued by an impartial magistrate. Kaiser’s failure to execute the warrant would have constituted a dereliction of duty. We find, therefore, that the plaintiff’s assignment of error is meritless.

IV. Invasion of Privacy

Finally, the patient plaintiffs contend that the trial court committed error in dismissing their claims for invasion of privacy based on the seizure of their records and on their right to obtain treatment by acupuncture. We disagree.

Plaintiffs urge this Court to follow the Southern District of Texas’ decision in Andrews v. Ballard, 498 F. Supp. 1038 (S.D. Texas 1980), in which plaintiffs challenged provisions of the Texas Medical Practice Act as applied to the practice of acupuncture by maintaining that the constitutional right of privacy encompasses the decision to obtain medical treatment. Id. at 1039. The Andrews Court agreed with plaintiffs and held that there was a “constitutional right, encompassed by the right of privacy, to decide to obtain acupuncture treatment.” Id. at 1057.

The North Carolina Supreme Court’s decision in Guess, howéver, controls this issue. With respect to the practice of homeopathy, Dr. Guess argued that the Board’s decision invaded his patients’ privacy rights. Our Supreme Court rejected this argument and stated that “we have recognized no fundamental right to receive unorthodox medical treatment, and we decline to do so now.” Guess, 327 N.C. at 57, 393 S.E.2d at 840. The Guess Court further held that state regulation of the medical profession is a legitimate exercise of the police power. Id. at 57, 393 S.E.2d at 839.

In the case at bar, we are bound by the Guess decision and choose not to adopt the disfavored view expounded by the Andrews Court. See New York State Ophthalmological Soc. v. Bowen, 854 F.2d 1379 (D.C. Cir. 1988), cert. denied, 490 U.S. 1098, 104 L.Ed.2d 1003 (1989); Rutherford v. U.S., 616 F.2d 455 (10th Cir.), cert. denied, 449 U.S. 937, 66 L.Ed.2d 160 (1980); Jacob v. Curt, 721 F. Supp. 1536 (D.R.I. 1989), aff’d, 898 F.2d 838 (1st Cir. 1990). We, therefore, find no error in the trial court’s dismissal of plaintiffs’ claims.

*263 We have examined plaintiffs’ remaining assignments of error and find them to be without merit. Accordingly, the order of the trial court is,

Affirmed.

Judges WELLS and PARKER concur.