Opinion
O1 Civ. 9587 (SAS)
May 31, 2002
For Plaintiffs (Pro Se): Lawrence Johnson, if 95-B-2484, Jamal Stephenson, # 95-A-4295, Tom Lynch, if 98-A-1162, Charles Woods, # 82-A-5434, Green Haven Correctional Facility, Stormville, N.Y.
For Defendant Lorillard Tobacco Company: Alan Mansfield, Esq., Stephen L. Saxl, Esq., Robert Kirschenberg, Esq., Greenberg Traurig, LLP, New York, N.Y.
For Defendant Republic Tobacco L.P.: Douglas H. Zamelis, Esq., Hancock Estabrook, LLP, Syracuse, N.Y., Peter Petrakis, Esq., Meckler, Bulger Tilson, Chicago, IL.
For Defendant Philip Morris, Inc.: Robert A. Cohen, Esq., Najma Q. Rana, Esq., Dechert, Price Rhoads, New York, N.Y.
MEMORANDUM OPINION AND ORDER
Four inmates, proceeding pro se, bring this suit pursuant to 42 U.S.C. § 1983 against supervisors and medical professionals at Green Haven Correctional Facility ("Green Haven") as well as three tobacco companies, Lorillard Tobacco Co. (incorrectly named "Newport Lorillard"), Philip Morris, Inc., and Republic Tobacco, LIP. (collectively, "Tobacco Defendants"), alleging various constitutional violations. The Tobacco Defendants now move to dismiss the claims against them pursuant to Rule 12(b)(6). For the reasons stated below, their motion is granted.
I. BACKGROUND
Plaintiffs are disabled inmates who reside in the Unit for the Physically Disabled at Green Haven. See Plaintiffs' Complaint ¶¶ 2, 6, 9, 12-13. Since 1998, plaintiffs allege that they have made numerous complaints about secondhand smoke, but prison officials have taken no action. See id. ¶ 10 Plaintiffs Lynch and Stephenson allege that the exposure has caused them to develop respiratory problems, for which they use aerosol inhalers. See id. ¶¶ 10, 12. Plaintiff Woods alleges that the secondhand smoke has triggered his prior nicotine addiction, for which he must now use "the patch." Id. ¶ 13. Green Haven buys cigarettes from the Tobacco Defendants and provides them for sale, in apparent disregard of its official non-smoking policy. See id. ¶¶ 23-24, 36.
In addition, all plaintiffs use wheelchairs. See id. ¶ 2. Each alleges that he has been repeatedly denied access to a wheelchair specialist, and has been forced to use a wheelchair that does not fit his body. See id. ¶¶ 39-51.
II. LEGAL STANDARD
A motion to dismiss should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (citation, quotation marks omitted). The task of the court in ruling on a Rule 12(b)(6) motion is '"merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."' Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (citation, quotation marks omitted).
When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "take as true all of the allegations contained in plaintiff's complaint and draw all inferences in favor of plaintiff." Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001). Because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 140 (2d Cir. 2000) (citations omitted)
III. DISCUSSION
A. Secondhand Smoke Claim
Plaintiffs argue, in essence, that the Tobacco Defendants' persistence in selling cigarettes, despite Green Haven's non-smoking policy and the known risks associated with smoking, demonstrates deliberate indifference to plaintiffs' serious medical need for clean air. Plaintiffs' claims against the Tobacco Defendants are brought solely under 42 U.S.C. § 1983 ("section 1983")
To state a claim under section 1983, plaintiffs must allege that defendants, while acting under color of state law, denied them a constitutional or federal statutory right. See West v. Atkins, 487 U.S. 42, 48 (1988); Ruggiero v. Krzeminski, 928 F.2d 558, 562-63 (2d Cir. 1991). It is well established that deliberate indifference to an inmate's serious medical needs constitutes a violation of his rights under the Eighth Amendment. See, e.g., Woods v. Goord, No. 01 Civ. 3255, 2002 WL 731691, at *3.4 (S.D.N.Y. Apr. 23, 2002) (citing, inter alia,Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Numerous suits have been brought by prisoners alleging violations of the Eighth Amendment due to excessive exposure to environmental tobacco smoke ("ETS"), which have resulted in relatively wellsettled rules. See, e.g., Henderson v. Sheahan, 196 F.3d 839, 845-47 (7th Cir. 1999); Warren v. Keane, 196 F.3d 330, 332-33 (2d Cir. 1999); Scott v. Dist. of Columbia, 139 F.3d 940, 942-44 (D.C. Cir. 1998)
Thus, to the extent that plaintiffs premise their section 1983 action on state tort law, they fail to state a claim: "[Section] 1983 covers product liability. . . . It is the tobacco companies['] product that is being sold to Green Haven Correctional Facility. Therefore any injury caused by the effect of cigarette smoke makes the defendant tobacco companies liable." 3/25/02 Plaintiffs' Opposition to Defendants' Motion to Dismiss ("Pl. Opp.") at 1.
Action under color of state law "requires that the defendant in a [section] 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Kia P. v. McIntyre, 235 F.3d 749, 755 (2d Cir. 2000) (quoting Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997)) (quotation marks omitted). In the handful of cases where inmates have brought section 1983 claims against private tobacco companies, courts have held that selling cigarettes to a prison facility does not constitute action under color of state law. See Steading v. Thompson, 941 F.2d 498, 499 (7th Cir. 1991) (dismissing asthmatic prisoner's section 1983 suit against tobacco company for exposure to secondhand smoke because "[a] private firm does not become a state actor by selling its products to the government"); Todd v. Brown Williamson Tobacco Corp., 924 F. Supp. 59, 63 (W.D. La. 1996) (dismissing inmates' section 1983 action against tobacco companies on state actor grounds); Hardin v. Brown Williamson Co., 87 Civ. 501 CAl, 1988 WL 288976, at *2 (W.D. Mich. Dec. 27, 1988) (same). See also Nwanze v. Philip Morris. Inc., 100 F. Supp.2d 215, 217 (S.D.N.Y. 2000) (dismissing prisoners' section 1983 claim against tobacco companies because plaintiffs failed to state a conspiracy claim).
The moving defendants here are private entities whose involvement with Green Haven goes no farther than the sale of a lawful product. The plaintiffs do not allege that the Tobacco Defendants conspired with officials at Green Haven, or acted under color of state law in any other way. Plaintiffs' secondhand smoke claims against the moving defendants are therefore dismissed for failure to state a claim.
"To proceed with a conspiracy allegation, the plaintiff "must plead facts that show an agreement or some form of joint or concerted action."'Nwanze, 100 F. Supp.2d at 219 (quoting Berman v. Turecki, 885 F. Supp. 528, 534 (S.D.N.Y. 1995)). Plaintiffs must "provide some details of time and place and the alleged effect of the conspiracy." Id. (citation omitted). Here, plaintiffs allege that "the private party defendants['] cigarettes are sold to individuals in Green Haven through the Comissary, who through bidding for the contract, to be allowed to s[ell] the product in this facility. . . . [T]he manufacture[r]s . . . provide the product that [is] sold in our commissary, and comes through our package room." Pl. Opp. at 2. Plaintiffs allege details but not of conspiracy. For example, "[b]idding [on] a contract," does not constitute joint or concerted action of any kind.
B. Wheelchair and Related Claims
Plaintiffs also bring claims alleging that the prison officials have refused them adequate medical care by denying access to a wheelchair specialist and forcing them to use ill-fitting wheelchairs. Because Tobacco Defendants are not state actors and because plaintiffs do not allege that the Tobacco Defendants were involved in the wheelchair claims, these claims must also be dismissed pursuant to Rule 12(b)(6).
IV. CONCLUSION
The Complaint is dismissed with respect to the Tobacco Defendants. The Clerk of the Court is therefore directed to close this case as to defendants Newport Lorillard, Philip Morris and Republic Tobacco.