Mr. Winfield to do. Plaintiff’s Exhibit C ¶ 5.
2.Any remaining portion of the exhaustion process must be excusedbecause the Department of Corrections has unreasonably delayed itsresponse to Mr. Winfield’s grievance appeal.
“Unreasonable delay on the agency’s part is an exception to the exhaustionrequirement.”
Cooper v. Minor
, 16 S.W.3d 578, 582 (Mo. banc 2000). In this case, theDepartment of Corrections received Mr. Winfield’s grievance appeal by facsimile onMay 7, or almost one month ago.
Defendant’s Exhibit G at 2. Defendants wellknow that Mr. Winfield’s execution was scheduled two days later, or May 9. And they also knew, on May 21, that Mr. Winfield had filed this lawsuit and moved for apreliminary injunction earlier that day.
Plaintiff’s Exhibit D (email to opposing counsel in the
litigation).Defendants now suggest that Mr. Winfield has not yet exhausted theadministrative grievance process because
have not yet bothered torespond to his grievance. All the while, Defendants insist that they have no intentionof complying with his grievance, as they made absolutely clear in response to Mr. Winfield’s Sunshine Law request as well as in their court filings and arguments only yesterday.
Plaintiffs’ Exhibit A at 4-6; Opposition to Motion for Preliminary Injunction, at 5-8. Under these circumstances, Defendants have unreasonably delayedtheir response to Mr. Winfield’s grievance appeal—if indeed Defendants are correctthat their response is needed in order from Mr. Winfield to have satisfied theexhaustion requirement. The delay is unreasonable because it serves no legitimatepurpose; Mr. Winfield has satisfied the purpose of the exhaustion requirement, whichis to give the state agency a chance to resolve the issue itself so that the prisoner need