ORDER GRANTING MOTION FOR RECONSIDERATION, VACATING ORDER OF DISMISSAL, REOPENING CASE, FILING AMENDED COMPLAINT AND SERVING COGNIZABLE CLAIMS
KANDIS A. WESTMORE, Magistrate Judge.
Plaintiff, an inmate incarcerated at San Quentin State Prison ("SQSP"), proceeding pro se, filed a civil rights action under 42 U.S.C. § 1983. On October 11, 2013, the Court dismissed the complaint with leave to amend. ( See Docket No. 6.) The Court advised Plaintiff that if he failed to file an amended complaint within twenty-one days from the date the order was filed, i.e., no later than November 1, 2013, his action would be dismissed without prejudice. ( See id. at 3.) On November 27, 2013, Plaintiff had not filed an amended complaint and, therefore, the Court dismissed the case without prejudice and issued a judgment. However, also on November 27, 2013, Plaintiff filed a First Amended Complaint ("FAC"), which was not filed because the case had been dismissed. On December 11, 2013, Plaintiff filed a motion for reconsideration. ( See Docket No. 10.)
In the interests of justice, the Court grants the motion for reconsideration, vacates the Order of Dismissal and the judgment, and orders the Clerk to reopen the case and file Plaintiff's FAC. The Court now undertakes an initial review of the FAC.
I. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a violation of a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
II. Plaintiff's Claims
In the October 11, 2013 Order of Dismissal with Leave to Amend, the Court noted that Plaintiff failed to state a federal civil rights claim because he did not allege that any specific defendant violated a right secured by the Constitution or the laws of the United States. The Court noted that Plaintiff alleged that Defendants, employees of SQSP CAL-PIA Industry Mattress and Bedding Factory ("CAL-PIA Factory"), violated federal regulations, but he did not specify those regulations or how each named Defendant violated them. The Court also noted that allegations of fraud and intentional concealment were not actionable under § 1983. The Court granted Plaintiff leave to amend to remedy these deficiencies.
In his FAC, Plaintiff alleges the following. From May 9, 2012 through June 6, 2012, Defendant Joe Dobie, CAL-PIA Factory Supervisor, instructed Plaintiff to remove lead-based paint without providing Plaintiff with personal protective equipment. Dobie also assigned Plaintiff work in a dangerous environment where inmate employees were using a high pressure washer to clean pipes encased with asbestos. Id. Dobie failed to give Plaintiff proper training or protective clothing to work with asbestos. Id. Plaintiff suffers from acute and chronic eye problems, chest pains, coughing and headaches as a result of working in an asbestos environment without the proper protection or training.
Defendants CAL-PIA Factory Supervisor Gary Loredo and Manager Philip Earley knew about the asbestos and its dangerous effects and failed to disclose them. Loredo and Earley filled out incomplete or fraudulent workers' compensation claims, on Plaintiff's behalf, minimizing the effects of the asbestos and this barred Plaintiff from addressing this claim in the future.
On June 6, 2012, Defendant Luu Rogers, CAL-PIA Factory Maintenance Supervisor, toured the area and made note of lead paint shavings on the floor and mixed in pools of water throughout the facility. It was not until "whistle blower" Rogers found these hazardous conditions at CAL-PIA Factory did Plaintiff became aware that he and other inmate-workers were at risk of exposure to lead paint and asbestos. Rogers notified his immediate supervisors, Earley and Loredo, of the dangerous conditions in the factory. He also contacted Defendant John Walker, CAL-PIA Health and Safety Manager, for advice on how to handle the situation. Walker advised Rogers that he would handle the situation from that point on and contacted the necessary authorities to update them on the hazardous conditions at the factory.
Defendant B. Smith, CAL-PIA Factory Branch Manager, conducted an investigation but made false and misleading statements about the asbestos.
Defendant Jeremy Young, CAL-PIA Factory Supervisor, notified his supervisor, Joe Dobie, of the potential danger from asbestos and lead paint caused by the removal of paint from the wall siding and window glass panels by the high pressure water washer. Although Young notified Dobie of the hazardous conditions, he did nothing further to safeguard Plaintiff. In fact, Young instructed Plaintiff to continue ...