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NWANZE v. PHILIP MORRIS INC.

June 7, 2000

AUSTEN NWANZE, ET AL., PLAINTIFFS,
V.
PHILIP MORRIS INCORPORATED, PHILIP MORRIS COMPANIES, INC., RJR NABISCO HOLDINGS CORP., R.J. REYNOLDS TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO COMPANY CORPORATION, B.A.T. INDUSTRIES P.L.C., BRITISH AMERICAN TOBACCO COMPANY LIMITED, BAT (U.K. & EXPORT) LIMITED, LORILLARD TOBACCO COMPANY, THE AMERICAN TOBACCO COMPANY, LIGGETT GROUP INC., THE COUNSEL FOR TOBACCO RESEARCH — U.S.A., INC., THE TOBACCO INSTITUTE, INC., LOEWS CORPORATION, UNITED STATES TOBACCO COMPANY, AND KATHLEEN HAWK, DIRECTOR OF BUREAU OF PRISONS, DEFENDANTS.



The opinion of the court was delivered by: Sand, District Judge.

MEMORANDUM AND ORDER

This case is brought by 435 non-smoking inmates who claim that they have been unlawfully exposed to excessive quantities of environmental tobacco smoke ("ETS"), also known as second-hand smoke. The Defendants are tobacco manufacturers and their trade associations ("private party defendants"), as well as Kathleen Hawk, the Director of the Federal Bureau of Prisons ("BOP"). Presently before the Court are the Defendants' motions to dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the ground that it fails to state a claim upon which relief may be granted. For the reasons set forth below, the motions are granted and the Complaint is dismissed.

I.

The Eighth Amendment proscribes cruel and unusual punishment, which includes actions taken with deliberate indifference to the serious medical needs of a prisoner. See Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). In Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), the Supreme Court held that it would violate the Eighth Amendment to expose an inmate "to levels of ETS that pose an unreasonable risk of serious damage to his future health," if done with deliberate indifference to that risk. Id. at 35, 113 S.Ct. 2475. Several courts have subsequently reviewed allegations brought by prisoners claiming that their Eighth Amendment rights have been violated due to excessive exposure to second-hand smoke. See, e.g., Henderson v. Sheahan, 196 F.3d 839 (7th Cir. 1999); Warren v. Keane, 196 F.3d 330 (2d Cir. 1999); Scott v. District of Columbia, 139 F.3d 940 (D.C.Cir. 1998); Navarrete v. Metro. Detention Ctr., No. 97 CV 4071, 1999 WL 294785 (E.D.N.Y. Mar.19, 1999); Bieregu v. Reno, Civ. A. No. 93-4894(JEI), 1994 WL 530665 (D.N.J. Sept.23, 1994). Principles governing the resolution of such claims are therefore relatively familiar and well settled.

The novelty of this case lies in that the Plaintiffs' principal targets are the manufacturers of tobacco products rather than prison officials or prison policies.*fn1 In Henderson, Warren, and Scott, for example, the plaintiffs challenged the adequacy of prison policies with respect to the housing of non-smoking inmates or alleged under-enforcement of what appeared to have been facially adequate policies. See Henderson, 196 F.3d at 842-43; Warren, 196 F.3d at 331-32; Scott, 139 F.3d at 943. By contrast, the Plaintiffs in this case do not address any particular BOP policy; nor do they challenge the enforcement of any policy. The Plaintiffs claim that the manufacturers of tobacco products sought to sell as many cigarettes as possible to the federal prison population, and that they conspired to do so with Director Hawk, with deliberate indifference to the associated health risks for non-smoking inmates. Although a numerical majority of the claims advanced in the Complaint*fn2 premise liability on theories of tort actionable under state law, the linchpin of the Complaint, and the thread by which its invocation of federal jurisdiction hangs, is the allegation that the private party defendants conspired with Director Hawk to violate the Eighth Amendment. For the reasons set forth below, we conclude that the Plaintiffs' conspiracy allegation is too conclusory and insubstantial to be sustainable. We therefore grant the Defendants' motions and dismiss the case.

II.

This case began with a complaint filed on October 2, 1997. The original complaint was brought by seventeen of the Plaintiffs and named only the private party defendants as Defendants. It alleged numerous state law causes of action, and sought both monetary and injunctive relief. An amended complaint, which added dozens of additional plaintiffs, was filed in February, 1998.

The Second Amended Complaint ("Complaint") joined several more defendants, including the Director of the BOP, Kathleen Hawk. It alleges, in addition to the state law claims that had already been alleged, that Director Hawk conspired with the private party defendants to violate the Plaintiffs' Eighth Amendment rights. The Complaint seeks monetary damages, both compensatory and punitive and "any other relief that may be deemed just and fair." (Complaint at ¶ 200.)

The Defendants moved to dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1), on the ground that this Court lacked subject matter jurisdiction. After reviewing the conspiracy allegations, the Court denied the motion, explaining that "[t]hese allegations . . . are more than sufficient to articulate a claim that invokes the Court's federal question jurisdiction." See Nwanze v. Philip Morris, Inc., 1999 WL 292620, at *3 (citing Helling v. McKinney, 509 U.S. 25, 31-37, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). We noted, however, that our conclusion was not to "be seen as expressing any opinion as to the ultimate merits of Plaintiffs' claim," and that "a case that cannot survive a motion to dismiss for failure to state a claim upon which relief can be granted . . . may nonetheless properly be in federal court." See id. (citing Town of West Hartford v. Operation Rescue, 915 F.2d 92, 99-100 (2d Cir. 1990)). The Defendants have now filed Rule 12(b)(6) motions, which we grant in their entirety.

III.

Because our review is pursuant to a motion to dismiss on the ground that the Complaint fails to state a claim upon which relief can be granted, we construe all factual allegations in the Plaintiffs' favor. See Automated Salvage Transp., Inc. v. Wheelabrator Envtl. Sys., Inc., 155 F.3d 59, 67 (2d Cir. 1998). "Dismissal of the complaint is proper only where `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted)) (citation omitted). We have given due regard to the Plaintiffs' pro se status and have not sought to impose upon them any technical or non-substantive requirement. A pro se complaint is held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

Even with all factual allegations construed in Plaintiffs' favor, however, the Complaint fails to allege any facts which might support an inference that a conspiracy to violate the Constitution existed. Because of the relative ease with which conspiracy allegations may be brought, and the substantial disruption of governmental function that they can cause, federal courts require "more than conclusory allegations to avoid dismissal of a claim predicated on a conspiracy to deprive [the plaintiff] of his constitutional rights." Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990) (citations omitted); see Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) ("[C]omplaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed."); San Filippo v. U.S. Trust Co. of New York, Inc., 737 F.2d 246, 256 (2d Cir. 1984) (affirming dismissal of conclusory conspiracy allegations). To proceed with a conspiracy allegation, the plaintiff "must plead facts that show an agreement or some form of joint or concerted action." Berman v. Turecki, 885 F. Supp. 528, 534 (S.D.N.Y. 1995) (citation omitted). "[W]hile a plaintiff should not plead mere evidence, he should make an effort to provide some `details of time and place and the alleged effect of the conspiracy.'" Dwares, 985 F.2d at 100 (quoting 2A Moore's Federal Practice ¶ 8.17[6], at 8-109 to 8-110 (2d ed. 1992)).

The Complaint alleges, with great specificity, long-standing, concerted efforts within the tobacco industry to conceal the medical harms associated with tobacco smoke from the public and to enhance the addictiveness of tobacco products. With respect to Director Hawk's involvement, however, the conspiracy allegations are exceedingly scant. The Complaint charges a conspiracy to violate the Eighth Amendment, but makes no specific factual allegations whatsoever as to any agreement or joint effort that might have constituted the conspiracy. We are told that the BOP distributes tobacco products to inmates free of charge. We are also told that the BOP profits from the sale of tobacco products to inmates, because of the monopolistic control over such sales that it enjoys. The Complaint alleges that the BOP purchased tobacco products with inmate funds and that it distributes and sells those products in deliberate disregard of known health risks. But nowhere does the Complaint identify an agreement or concerted action between Director Hawk and the private party defendants to expose non-smoking inmates to unacceptable levels of ETS. The only agreements alleged to have been made between the BOP and the private party defendants are contracts for the sale of tobacco products and an agreement that the private party defendants would ...


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