The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis, with an action under 42 U.S.C. § 1983 and state law. He alleges that defendants O'Conner and Russell were deliberately indifferent to his safety by exposing him to asbestos and lead during a demolition work project at the California Medical Facility, in violation of the Eighth Amendment.
Russell was served with process*fn1 and has filed a motion to dismiss, alleging: (1) plaintiff failed to exhaust the prison grievance process before filing this lawsuit; (2) workers' compensation is plaintiff's exclusive remedy; (3) plaintiff's tort claim was untimely, barring any negligence claim; and (4) plaintiff's request for injunctive relief is moot.
I. Plaintiff's Allegations
Plaintiff alleges that in March 2006, he was instructed to assist in the demolition of the photo lab at the California Medical Facility ("CMF") in Vacaville, California. See Complaint at 9 (Dkt. # 1). About one week into the project, a supervisor told the workers onsite, including plaintiff, to stop. Id. Plaintiff never resumed work at the demolition site. Instead, "an outside company" specializing in asbestos removal took over the project. Id.
Plaintiff alleges that, despite the work stoppage, he did not learn of the presence of asbestos and lead at the demolition site until he received an occupational injury or illness report on May 26, 2006. Id. at 7. He also states that on August 16, 2006, the California Compensation Insurance Fund sent him a notice that "liability for this injury had been accepted." Id.
Plaintiff alleges that defendant Russell, a secondary supervisor in plant operations with the CDCR, knew about the presence of asbestos throughout CMF. See Complaint at 7. He avers that Russell was aware that the same "outside company" had removed asbestos from the gym restroom at CMF only a week before the demolition of the photo lab began. Id. Plaintiff alleges Russell acted with deliberate indifference to a serious risk to plaintiff's health when he allowed plaintiff "to work and remove these deadly contaminates with no proper training or safety gear." Id.
The complaint states that as a direct result of plaintiff's handling asbestos and lead, he suffers respiratory distress and requires respiratory treatment four times a day. Id. at 9. Plaintiff seeks injunctive and declaratory relief and compensatory and punitive damages.
II. Procedural Background
Plaintiff brought these same allegations against defendant Russell in this court, in Civil Action No. 2:07-cv-1273 MCE EFB. In that case, the court dismissed without prejudice plaintiff's claim that Russell was deliberately indifferent to the safety risks posed by asbestos at the demolition work site where plaintiff was assigned. The court found that plaintiff had failed to exhaust administrative remedies with regard to allegations of asbestos exposure in March 2006. See Civil Action No. 2:07-cv-1273 MCE EFB, Dkt. # 62 (recommending dismissal) and Dkt. # 65 (adopting the recommendation and dismissing the case). The magistrate judge's recommendation also stated that "[d]ismissal without prejudice may permit plaintiff to file a new action upon exhaustion of the prison grievance process." Civil Action No. 2:07-cv-1273 MCE EFB, Dkt. # 62 at 4.*fn2 Indeed plaintiff filed an inmate grievance after his first lawsuit was dismissed, and he states in the instant complaint that the grievance process is now complete. See Complaint at 3. However, defendant Russell again moves to dismiss on the ground that plaintiff did not fully exhaust the grievance process.
III. Failure to Exhaust Administrative Remedies
A motion to dismiss for failure to exhaust administrative remedies prior to filing suit arises under Rule 12(b) of the Federal Rules of Civil Procedure. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1120. If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. Id.
The exhaustion requirement is rooted in the Prison Litigation Reform Act ("PLRA"), which provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). CDCR regulations provide administrative procedures in the form of one informal and three formal levels of review to address plaintiff's claims. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.7. Administrative procedures generally are exhausted once a prisoner has received a "Director's Level Decision," or third level review, with respect to his issues or claims. Cal. Code Regs. tit. 15, § 3084.5.
Under CDCR regulations, an inmate must file his prisoner grievance within fifteen days of the events grieved.*fn3 If a plaintiff failed to exhaust available administrative remedies by filing a late grievance, his case must be dismissed. Woodford v. Ngo, 548 U.S. 81 (2006). Exhaustion during the pendency of the litigation will not save an action from dismissal. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002). Exhaustion "'means using all steps that the agency holds out, and doing so properly....'" Woodford, 548 U.S. at 90 (citation omitted). Therefore, an inmate must pursue a grievance through ...