Opinion
No. 98-3661, 98 C 3962
Because there are no appellees to be served in this appeal, this appeal has been submitted without the filing of a brief by the appellee. After an examination of the brief and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the brief and the record. See Fed.R.App.P. 34(a)(2).
Decided December 14, 1999
WILLIAM J. BAUER, Circuit Judge, JOHN L. COFFEY, Circuit Judge, DANIEL A. MANION, Circuit Judge
ORDER
South Carolina inmate Jasper Buchanan brought this suit pro se under 42 U.S.C. § 1983 claiming that the named defendant, Top Tobacco Company ("Top Tobacco"), violated his Eighth Amendment rights by not placing health warnings on its loose tobacco products used for rolling cigarettes. Reviewing Buchanan's complaint under 28 U.S.C. § 1915 (e), the district court concluded that Buchanan failed to state a federal claim. We affirm.
This does not appear to be the first time that Buchanan has filed a lawsuit asserting the same or similar allegations. See, e.g., Buchanan v. Manley, 145 F.3d 386, 387 (D.C. Cir. 1998) (affirming dismissal of complaint alleging in part that the heads of two tobacco companies, including Top Tobacco, distributed loose tobacco products without warning of risks of-smoking); Buchanan v. Manley, No. 97-5363, 1999 WL 730648 (D.C. Cir. Aug. 31, 1999) (unpublished) (affirming dismissal of complaint alleging a violation of the Federal Cigarette Labeling and Advertising Act). For a third time, Buchanan appeals the dismissal of his complaint alleging some constitutional violation associated with smoking. We conclude, after conducting our own independent review, that the district court properly dismissed Buchanan's complaint for failure to state a federal claim.
To state a claim under § 1983, a plaintiff must allege that the defendant, while acting under color of state law, deprived him of a federal right. See Fries v. Helsper, 146 F.3d 452, 457 (7th Cir.), cert. denied, 119 S.Ct. 337 (1998). But Top Tobacco, a private company, is not a state actor, and Buchanan has not alleged that Top Tobacco was acting under color of state law. Accordingly, Top Tobacco cannot be sued under § 1983. Moreover, Buchanan alleges only that he suffered discomfort and feared for his health after he learned that Top Tobacco had not placed warning labels on its products. But absent any allegation of physical injury, Buchanan's claim seeking monetary relief is barred by 42 U.S.C. § 1997e(e). See, e.g., Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir. 1997). Lastly, Buchanan's complaint fails to state a claim under the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331-1341, because that act does not provide for a private right of action, see id. §§ 1338-1339 (enforcement carried out through criminal proceedings or injunctive proceedings initiated by the Attorney General); Action for Children's Television v. FCC, 999 F.2d 19, 21 (1st Cir. 1993) ("It is undisputed that the Department of Justice . . . is exclusively charged with enforcing the provisions of the Cigarette Act"), and does not apply to the loose tobacco products at issue here, see 15 U.S.C. § 1332 (1), 1333(a) Toole v. Brown Williamson Tobacco Corp., 980 F. Supp. 419, 423 (N.D. Ala. 1997) (loose tobacco products are not cigarettes as defined by the statute).
Accordingly, the district court properly found that Buchanan failed to state a claim upon which relief could be granted. The court's dismissal of Buchanan's complaint, and Buchanan's appeal from that dismissal, count as two strikes under 28 U.S.C. § 1915 (g). See Hains v. Washington, 131 F.3d 1248, 1250 (7th Cir. 1997). The judgment of the district court is AFFIRMED.