Seventeen nonsmoking inmates of federal correctional facilities filed a lawsuit on October 2, 1997 against several tobacco companies, claiming exposure to environmental tobacco smoke (ETS) while they were incarcerated.  Two months later, the plaintiffs moved for certification of a class action of all nonsmoking federal prisoners who had been injured by exposure to ETS.  Two months later, the plaintiffs filed an amended compliant that added dozens of additional plaintiffs.  The defendants filed a motion to dismiss and argued that the court had no subject matter jurisdiction under 28 U.S.C. sec. 1331 because the plaintiffs failed to state a colorable federal claim.  The court (Sand, J.) denied the motion to dismiss and ruled that there is subject matter jurisdiction since the plaintiffs alleged that there was governmental action in that under its Director, Kathleen Hawk, the Bureau of Prisons “distributed cigarettes to prisoners throughout the federal system regard to ETS levels and on occasion distributed cigarettes to smoking inmates free of charge . . . .operates as a monopolistic purveyor of tobacco products in federal prison by setting price and quantity limits on cigarette sales . . . deposits all inmate funds into one lump account and purchases cigarettes from that fund, without the nonsmoking inmates’ consent . . . profits handsomely from its sale of tobacco products . . . and has consistently ignored warnings about the risks posed by tobacco smoke and maliciously pumped tobacco products to the inmate population with deliberate indifference to plaintiff’s health.”

The district court, at 100 F. Supp. 2d 215, 2000 U.S. Dist. LEXIS 7805, dismissed 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,” concluding that “the Plaintiff’s conspiracy allegation is too conclusory and insubstantial to be sustainable.”Nwanze, et al., v. Philip Morris Incorporated, et al., 97 Civ. 7344 (LBS)(U.S.D.C. S.D.N.Y.).  Seventeen nonsmoking inmates of federal correctional facilities filed a lawsuit on October 2, 1997 against several tobacco companies, claiming exposure to environmental tobacco smoke (ETS) while they were incarcerated.  Two months later, the plaintiffs moved for certification of a class action of all nonsmoking federal prisoners who had been injured by exposure to ETS.  Two months later, the plaintiffs filed an amended compliant that added dozens of additional plaintiffs.  The defendants filed a motion to dismiss and argued that the court had no subject matter jurisdiction under 28 U.S.C. sec. 1331 because the plaintiffs failed to state a colorable federal claim.  The court (Sand, J.) denied the motion to dismiss and ruled that there is subject matter jurisdiction since the plaintiffs alleged that there was governmental action in that under its Director, Kathleen Hawk, the Bureau of Prisons “distributed cigarettes to prisoners throughout the federal system regard to ETS levels and on occasion distributed cigarettes to smoking inmates free of charge . . . .operates as a monopolistic purveyor of tobacco products in federal prison by setting price and quantity limits on cigarette sales . . . deposits all inmate funds into one lump account and purchases cigarettes from that fund, without the nonsmoking inmates’ consent . . . profits handsomely from its sale of tobacco products . . . and has consistently ignored warnings about the risks posed by tobacco smoke and maliciously pumped tobacco products to the inmate population with deliberate indifference to plaintiff’s health.”

The district court, at 100 F. Supp. 2d 215, 2000 U.S. Dist. LEXIS 7805, dismissed 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,” concluding that “the Plaintiff’s conspiracy allegation is too conclusory and insubstantial to be sustainable.”

Nwanze, et al., v. Philip Morris Incorporated, et al., 97 Civ. 7344 (LBS)(U.S.D.C. S.D.N.Y.).