Opinion
Civil Action No. 02-2670, Section "N" (5)
September 18, 2002
ORDER AND REASONS
The Court, after considering the complaint, the record, the applicable law, the September 4, 2002 Report and Recommendation of Magistrate Judge Alma L. Chasez, and the Written Objections [Rec. Doc. No. 4] filed by pro se plaintiff Rhonda K. Oliver on September 16, 2002, hereby approves the Report and Recommendation of the United States Magistrate Judge [Rec. Doc. No. 3], and adopts it as its opinion herein. The Court addresses the plaintiff's objections herein below.
Plaintiff concedes that the defendant, R.J. Reynolds Tobacco Company, is in fact a private company but argues that defendant's actions were taken "under color of state law" because it releases its product ( i.e., cigarettes) for distribution in prison facilities. The Court disagress for the following reasons.
Private action may be viewed as state action only where the challenged conduct may be "fairly attributable to the State." Lugar v. Edmondsun Oil Co., Inc., 457 U.S. 922, 937 (1982); Bass v. Parkwood Hospital, 180 F.3d 234, 241 (5th Cir. 1999). The fair attribution test is comprised of two part, to wit: (1) the deprivation must be caused by the exercise of some right of privilege created by the State or a person for whom the State is responsible; and (2) the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his action is otherwise attributable to the State or municipality. See Lugar, 497 U.S. at 937.
Having reviewed the record in its entirety, it is clear that the plaintiff has not stated a claim under 42 U.S.C. § 1983. While the plaintiff asserts that the actions taken against her were "under color of state law," plaintiffs initial pleading and objections fail to outhne any facts which would indicate that the municipal prison officials were in anyway involved in the defendant's decision to release its product for sale. Even as amended by her written objections, Oliver's complaint cannot support her claim for § 1983. The Court, in its research, has been unable to locate any authority which even arguably supports the proposition that a private manufacturing company acts "under color" when it releases its product for sale throughout a municipal facility such as Orleans Parish Prison.
Absent are facts tending to support the "state action" prong of the two part recipe for § 1983 liability, to wit: (1) the plaintiff has been "deprived of right secured by the Constitution and law the United States;'" and (2) that the deprivation was caused by a person or persons acting "under color of" state law. Flagg Bros. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 1733, 56 L.Ed.2d (1978).
In Greco v. Orange Memorial Hospital Corporation, 513 F.2d 873 (5th Cir.), cert. denied, 423 U.S. 1000 (1975), the Fifth Circuit observed that:
A state's involvement may be manifested in a number of ways. For example, the state may sanction or seek to enforce the claims of private parties, may give financial assistance to private institutions, may regulate activities of private organizations, or may employ private parties to promote state interests.513 F.2d at 878-79 (citations omitted). It could be that the state is not involved at all, however, state action may arise regardless of that fact because a private entity has voluntarily assumed a public function. Id. at 878. Plaintiff alleges no facts which indicate the existence of municipal involvement in private conduct to justify the imposition of constitutional restraints upon R. J. Reynolds Tobacco Company. Because the Fourteenth Amendment protects liberty and property interests only against invasion by the state, a section 1983 plaintiff alleging deprivation of a constitutional right must also show that state action caused his injury. See Landry v. A-Able Bonding, Inc., 75 F.3d 200, 203 (5th Cir. 1996).
The Supreme Court has applied several different formulas for determining whether private conduct may be deemed "state action." See Lugar, 102 S.Ct. at 2754-55 (recognizing public function test, state compulsion test, nexus test, and joint action test). Manufacture and distribution of commodities for sale are not functions either traditionally performed by governments or exclusively reserved to the State. See e.g., Flagg Bros., 98 S.Ct. at 1734 (finding that resolution of private disputes was not a traditionally exclusive function of government). Under the state compulsion test, "a State normally can be held responsible for a private decision only when it exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Bass, 180 F.3d at 242 (citing Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982)).
It is beyond cavil that the State's mere acquiescence in private conduct does not transmogrify that conduct into "state action" within the meaning of § 1983. See Flagg Bros., 98 S.Ct. at 1737-38 (holding warehouseman's sale of goods pursuant to statutory self-help measures was not state action). Under the nexus or joint action test, state action may be found where the government has so far insinuated itself into a position of interdependence with the private actor that it was a joint participant in the enterprise. See e.g., Lugar, 102 S.Ct. at 2756 (finding a private party's joint participation with state officials in the seizure of disputed property sufficient to characterize the party as a "state actor" for purposes of the Fourteenth Amendment); but see Bass, 180 F.3d at 243 (a private citizen or hospital does not become a state actor by participating in civil commitment proceedings); and Dahl v. Akin, 630 F.2d 277, 281 (5th Cir. 1980) (a private citizen does not become a state actor merely by filing a private civil action, even where authorized by state statutes). Discussing the Seventh Circuit's decision in Spencer v. Lee, 864 F.2d 1376 (7th Cir. 1989), the Bass Court noted that whether or not statutes authorize private acts is not the issue; the issue is rather whether the activity itself remains private. Bass, 180 F.3d at 243.
In the case at bar, the requisite nexus and/or symbiotic relationship between prison officials and the defendant manufacturer/distributer of tobacco products is lacking. That activity (manufacture and sale of cigarettes) remains private activity, regardless of its sale to the prison facility. There is no more nexus here between the municipal prison facility and cigarette manufacturer/distributor than there is with the manufacturer/distributor of commodities such as toothpaste, soap, aerosol spray products, including insect repellants, which may also emit noxious fumes and are also made available throughout the prison facility, in the smattering of reported and unreported decisions involving inmates' § 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 actor does not become a state actor by selling its products to the government"); Johnson v. Newport Lorillard, 2002 WL 1203842 (S.D.N.Y.) (dismissing prisoner's § 1983 second-hand smoke claim against private tobacco companies for failure to state a claim, noting that private entities involvement with the Green Haven facility went no farther than the sale of a lawful tobacco product); Todd v. Grown Williamson Tobacco Corp., 924 F. Supp. 59, 63 (W.D. La. 1996) (dismissing inmates' section 1983 action against tobacco companies on the basis that the private entities were not "state actors" within the meaning of § 1983); Hardin v. Brown Williamson Co., 1988 WL 288976 (W.D. Mich.)(same); see also Nwanze v. Philip Morris, Inc., 100 F. Supp.2d 215, 217 (S.D.N.Y. 2002) (dismissing prisoners; § 1983 claim against tobacco companies because plaintiffs failed to state a conspiracy claim);
Accordingly and for all of the above and foregoing reasons IT IS ORDERED that plaintiff's Section 1983 action be and hereby is DISMISSED WITH PREJUDICE;