A prisoner brought a civil rights action against the Bugler Tobacco Co., makers of loose tobacco and rolling papers, because their products were sold at the prison where he was incarcerated and he was exposed to secondhand smoke.  He claimed that Bugler’s failure to label its smoking tobacco and rolling papers with warnings about the risks of secondhand smoke caused injury to his lungs and heart.  The District Court ruled that D’Alessandro’s sec. 1983 claims fail because Bugler is not a state actor.  Also, the labeling requirement of the Federal Cigarette and Labeling Act does not apply to loose tobacco and rolling paper.  For the same reason, the Court rejected Bugler’s argument that claims against it were preempted by FCLAA.  Other claims against Bugler were dismissed because they were filed beyond the two-year statute of limitations.  D’Alessandro’s claims against Defendant McFarland, a prison official were not barred by the statute of limitations, but were dismissed because “[p]laintiff has failed to bring forward any evidence that would permit a jury to find deliberate indifference” to the prisoner’s health regarding secondhand smoke.  The prison officials affirmatively enforce a no-smoking policy by, among other things, “responding to Plaintiff’s complaints that his cell mate smoked in the cell.”

2007 U.S. Dist. LEXIS 16051 (U.S.D.C. D. N.J.)