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Opposition to Motion to Dismiss Re Exhaustion (05043011x9E3F7)

Opposition to Motion to Dismiss Re Exhaustion (05043011x9E3F7)

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Published by cbsradionews
Winfield response to motion to dismiss for failure to exhaust
Winfield response to motion to dismiss for failure to exhaust

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Published by: cbsradionews on Jun 05, 2014
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06/10/2014

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 IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI  JOHN E. WINFIELD,))Plaintiff,))) v.) Case No. 14AC-CC00263)GEORGE A. LOMBARDI, et al.,)))Defendants. )SUGGESTIONS IN OPPOSITION TO DEFENDANTS’ MOTION TODISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
 The state persists in its argument that Mr. Winfield has not exhaustedadministrative remedies. But there is no dispute that Mr. Winfield himself has filedeverything he needs to have filed. He filed a “grievance appeal,” the appeal was sentalong to the Department of Corrections’ central office in Jefferson City, and there isnothing more that Mr. Winfield can file or do.
See 
 Defendant’s Exhibit F, at 6-7(concerning exhaustion of lethal injection issues); Exhibit G (Offender Grievance Appeal). Defendants seem to be arguing that Mr. Winfield has not “exhausted” hisremedies, because the Department has not yet answered his appeal or waited 100days— 
see 
 Defendants’ Exhibit J at 2—even though the Department has made clear inthe Sunshine Law correspondence and yesterday’s hearing that it has
absolutely nointention
 of providing the requested records to Mr. Winfield unless it is ordered todo so. Mr. Winfield has satisfied the letter and purpose of the law, and the state’sargument elevates form over substance. The Court should reject the defendants’exhaustion argument.
 
1.The Department’s failure to answer the “grievance appeal” does notmean that Mr. Winfield has failed to exhaust administrative remedies.
 There is no factual dispute about what remedies Mr. Winfield has pursued. Heshowed his paperwork to the grievance coordinator at Potosi, who said that the issueis “non-grievable.” That is why Mr. Winfield proceeded in the first instance with a“grievance appeal,” which the grievance coordinator promptly faxed to theDepartment’s central office in Jefferson City.
See 
 Plaintiff’s Exhibit C (Winfield Affidavit); Defendants’ Exhibit G. The grievance coordinator told Mr. Winfield thatthere was nothing more for him to do. Ex. C ¶ 5. And indeed, Defendants’ ownpolicies show that a prisoner exhausts a lethal injection issue by filing a “grievanceappeal.” Defendant’s Exhibit F at 5-6. The “grievance appeal” that appears asDefense Exhibit G conforms with the Department’s policies.Defendants now argue that
Mr. Winfield
 has not exhausted his administrativeremedies, because the Department has not yet responded to his grievance appeal orallowed 100 days to lapse without such a response. But the law requires only that theprisoner exhaust the remedies available to him.
See 
 Mo. Rev. Stat. § 510.125.1 (“[T]hecourt shall stay such case until
 the offender has exhausted
such administrativeremedies as are described in this section and are available to the offender”) (emphasisadded). Mr. Winfield has exhausted the avenues that are made “available” to him. Hecompleted the only form that the grievance coordinator and the DOC’s manualallows him to complete, and he made clear his complaint that the Department was violating the Sunshine Law by not responding to his earlier document request. Deft.Exhibit G at 3-4. Mr. Winfield has no means to hasten or otherwise complete theDepartment’s response. The grievance coordinator is right: there is nothing more for
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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.
See
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.
See 
 Plaintiff’s Exhibit D (email to opposing counsel in the
Zink
 litigation).Defendants now suggest that Mr. Winfield has not yet exhausted theadministrative grievance process because
the Defendants
 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.
See 
 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
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