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