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D'Alessandro v. Bugler Tobacco Co.

December 7, 2006

MICHAEL R. D'ALESSANDRO, PLAINTIFF,
v.
BUGLER TOBACCO CO., ET AL., DEFENDANTS.



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

HONORABLE JEROME B. SIMANDLE

OPINION

I. INTRODUCTION

This matter comes before the Court on the motion of Defendant John Middleton Inc. ("JMI") to dismiss the claims against it pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction as to claims brought against it via 42 U.S.C. § 1983, and pursuant to 12(b)(6)for failure to state a claim upon which relief may be granted as to the state law claim [Docket Item 26]*fn1 . For the reasons explained below, the Court will grant JMI's motion to dismiss the constitutional claims against it, which were brought pursuant to 42 U.S.C. § 1983 and which aspect of the motion Plaintiff does not oppose. However, the Court will deny the motion to dismiss the products liability claim against JMI pursuant to Fed. R. Civ. P. 12(b)(6).

II. BACKGROUND*fn2

Plaintiff, Michael D'Alessandro, is a New Jersey State inmate, currently incarcerated at South Woods State Prison in Bridgeton, New Jersey ("South Woods"). On October 13, 2005 he commenced this action against multiple public and private entities, including JMI, whom he claimed were responsible for his exposure to environmental tobacco smoke ("ETS") in the prison.

In Count Two of the Complaint, Plaintiff alleges that JMI's failure to label its Black & Mild Cigars with warnings of the risks posed by ETS caused him "(1) permanent injury to his lungs and, (2) aggr[a]vation of his pre-existing serious medical condition, and future, further unnecessary damage and, physical pain and mental anguish." Plaintiff further alleges that JMI's "acts and/or omissions were and are deliberate and wicked." Although the entire Complaint is explicitly described as a series of Eighth Amendment claims, brought via 42 U.S.C. § 1983, which, as Plaintiff now concedes (Pl. Br. at 6.), are not viable against this non-state actor defendant, the parties construe this Count as also asserting a products liability claim pursuant to New Jersey law. Under the liberal pleading rules, the Court will do the same. Defendant has moved to dismiss that claim pursuant to Fed. R. Civ. P. 12(b)(6).

Plaintiff is a non-smoker who has been confined in South Woods since December 11, 2000 in two- or four-person cells with inmates who are allegedly addicted to JMI's Black & Mild "Little Cigars" and Bugler's loose tobacco. (Compl. at 4.) He has been treated for cardiac and related conditions since 1989. (Id.) Since December 12, 2000, Plaintiff has been "compelled to take indoor recreation in a -40 X 40' dayroom, with chain-smoker addicts of Bugler Tobacco cigarett[e]s and/or Black & Mild perfume scented cigars, notwithstanding that the day room is [a] designated non-smoking area . . . ." (Compl. at 5.) His continued exposure to second-hand smoke since 2000 has exacerbated his cardiac condition and made it difficult for him to breathe. (Id.) Plaintiff has made numerous complaints to the prison officials, to no avail. (Compl. at 5-6.)

III. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

A. Standard of Review

The Court will deny a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept any and all reasonable inferences derived from those facts stated in the Complaint. Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991); Gutman v. Howard Sav. Bank, 748 F. Supp. 254, 260 (D.N.J. 1990). Further, the Court must view all allegations in the Complaint in the light most favorable to the plaintiff. See Scheuer, 416 U.S. at 236; Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The question before the Court is not whether the plaintiff will ultimately prevail; rather, it is whether that plaintiff can prove any set of facts in support of its claims that would entitle it to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). Therefore, in deciding a motion to dismiss, a court should look to the face of the Complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the plaintiff, those allegations state a legal claim. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The Court will consider only the allegations in the Complaint, matters of public record, orders, and exhibits attached to the Complaint. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).

B. Parties' Arguments

JMI argues that a products liability claim against it must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because (1) JMI has no duty to warn smokers of the obvious risks of its product and (2) Plaintiff cannot prove causation. Plaintiff, who is proceeding pro se, argues that the Court should construe his pleadings more liberally than those drafted by attorneys (Pl. Br. at 3) (citing Haines v. Kerner, 404 U.S. 519 (1972)) and that he has stated a claim under New Jersey products ...


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