821 F2d 650 Tate v. Brown and Williamson Tobacco Corporation

821 F.2d 650

Curtis TATE, et al., Plaintiffs-Appellants,
v.
BROWN AND WILLIAMSON TOBACCO CORPORATION, Defendant-Appellee.

No. 86-1824

United States Court of Appeals, Sixth Circuit.

June 23, 1987.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before MERRITT, MARTIN and WELLFORD, Circuit Judges.


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1

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon review of the record and briefs, this panel unanimously agrees that oral argument is not necessary. Rule 34(a), Federal Rules of Appellate Procedure.

2

Pro se Michigan state prisoners appeal the dismissal of their complaint for failure to state a claim. In their complaint, the plaintiffs alleged that their constitutional rights were violated by the defendant's failure to place a health hazard warning on its loose tobacco products. They requested declaratory, injunctive and monetary relief pursuant to 42 U.S.C. Sec. 1983 and the Federal Tort Claims Act.

3

The defendant filed a motion to dismiss for failure to state a claim, and the plaintiffs responded. In addition to the clearly stated federal claims, the district court construed the complaint to allege a claim under the Federal Cigarette Labeling and Advertising Act and a diversity claim for negligence under Michigan law. The court dismissed the complaint for failure to state a claim. On appeal, the plaintiffs claim that the district court erred in dismissing the 42 U.S.C. Sec. 1983 claim and the state negligence claim.

4

Upon review, we conclude that the dismissal was proper. The plaintiffs failed to show that the defendant acted under color of state law as required under 42 U.S.C. Sec. 1983. See Parratt v. Taylor, 451 U.S. 527, 535 (1981). Therefore, this claim was properly dismissed.

5

Furthermore, the State of Michigan has not extended the duty to warn of inherent dangers to manufacturers of tobacco products. Therefore, this state claim was also properly dismissed.

6

Based on the above, the dismissal of the complaint was proper. Accordingly, the district court's order is hereby affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.