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 TO
DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
The state persists in its argument that Mr. Winfield has not exhausted
administrative remedies. But there is no dispute that Mr. Winfield himself has filed
everything he needs to have filed. He filed a grievance appeal, the appeal was sent
along to the Department of Corrections central office in Jefferson City, and there is
nothing more that Mr. Winfield can file or do. See Defendants 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 his
remedies, because the Department has not yet answered his appeal or waited 100
dayssee Defendants Exhibit J at 2even though the Department has made clear in
the Sunshine Law correspondence and yesterdays hearing that it has absolutely no
intention of providing the requested records to Mr. Winfield unless it is ordered to
do so. Mr. Winfield has satisfied the letter and purpose of the law, and the states
argument elevates form over substance. The Court should reject the defendants
exhaustion argument.
1. The Departments failure to answer the grievance appeal does not
mean that Mr. Winfield has failed to exhaust administrative remedies.
There is no factual dispute about what remedies Mr. Winfield has pursued. He
showed his paperwork to the grievance coordinator at Potosi, who said that the issue
is non-grievable. That is why Mr. Winfield proceeded in the first instance with a
grievance appeal, which the grievance coordinator promptly faxed to the
Departments central office in Jefferson City. See Plaintiffs Exhibit C (Winfield
Affidavit); Defendants Exhibit G. The grievance coordinator told Mr. Winfield that
there was nothing more for him to do. Ex. C 5. And indeed, Defendants own
policies show that a prisoner exhausts a lethal injection issue by filing a grievance
appeal. Defendants Exhibit F at 5-6. The grievance appeal that appears as
Defense Exhibit G conforms with the Departments policies.
Defendants now argue that Mr. Winfield has not exhausted his administrative
remedies, because the Department has not yet responded to his grievance appeal or
allowed 100 days to lapse without such a response. But the law requires only that the
prisoner exhaust the remedies available to him. See Mo. Rev. Stat. 510.125.1 ([T]he
court shall stay such case until the offender has exhausted such administrative
remedies as are described in this section and are available to the offender) (emphasis
added). Mr. Winfield has exhausted the avenues that are made available to him. He
completed the only form that the grievance coordinator and the DOCs manual
allows 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 the
Departments response. The grievance coordinator is right: there is nothing more for
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Mr. Winfield to do. Plaintiffs Exhibit C 5.
2. Any remaining portion of the exhaustion process must be excused
because the Department of Corrections has unreasonably delayed its
response to Mr. Winfields grievance appeal.
Unreasonable delay on the agencys part is an exception to the exhaustion
requirement. Cooper v. Minor, 16 S.W.3d 578, 582 (Mo. banc 2000). In this case, the
Department of Corrections received Mr. Winfields grievance appeal by facsimile on
May 7, or almost one month ago. See Defendants Exhibit G at 2. Defendants well
know that Mr. Winfields 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 a
preliminary injunction earlier that day. See Plaintiffs Exhibit D (email to opposing
counsel in the Zink litigation).
Defendants now suggest that Mr. Winfield has not yet exhausted the
administrative grievance process because the Defendants have not yet bothered to
respond to his grievance. All the while, Defendants insist that they have no intention
of complying with his grievance, as they made absolutely clear in response to Mr.
Winfields 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 delayed
their response to Mr. Winfields grievance appealif indeed Defendants are correct
that their response is needed in order from Mr. Winfield to have satisfied the
exhaustion requirement. The delay is unreasonable because it serves no legitimate
purpose; Mr. Winfield has satisfied the purpose of the exhaustion requirement, which
is to give the state agency a chance to resolve the issue itself so that the prisoner need
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not file suit. The Defendants have had that chance since May 7. Defendants
invocation of the exhaustion requirement is nothing more than procedural
opportunism.
C. The exhaustion requirement may be waived when compliance with it is
impractical.
Defendants argue that exhaustion is mandatory before filing suit, but the
authorities they rely on do not address the situation here, which is that Mr. Winfield
cannot possibly wait for 100 days (or whatever other length of time) for the
Department of Corrections to answer his grievance appeal. Mr. Winfield is scheduled
for execution on June 18th, and he comes to this Court because immediate judicial
review is absolutely essential in order for Mr. Winfield to assert and preserve his
meritorious claims.
Federal authorities cast further doubt on the states claim of non-exhaustion.
Missouris exhaustion requirement is functionally identical to its federal counterpart.
Compare Mo. Rev. Stat. 506.384.1 (No civil action may be brought by an offender,
except for a constitutional deprivation, until all administrative remedies are
exhausted), with 42 U.S.C. 1997e(a) (No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted). Although couched in the
same mandatory language, the federal exhaustion requirement is repeatedly waived
when the compliance is not reasonably practicable under the circumstances. See Evans
v. Saar, 412 F. Supp. 2d 519, 527-28 (D. Md. 2006) (entertaining motion for injunctive
relief even though prisoner had not yet completed the administrative grievance
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process on states lethal injection protocol); Brownell v. Krom, 446 F.3d 305, 312-13 (2d
Cir. 2006) (difficulties with exhaustion may create special circumstances to excuse
prisoners failure to exhaust). That is compellingly the case here: Mr. Winfield cannot
await the Defendants (inevitably negative) response to his grievance before seeking
judicial review, because the Defendants will first kill on June 18.
The motion to dismiss should be denied.
Respectfully submitted,
/s/ Joseph W. Luby
Joseph W. Luby, Mo. Bar 48951
Jessica E. Sutton, Mo. Bar 63600
Death Penalty Litigation Clinic
6155 Oak Street, Suite C
Kansas City, MO 64113
816-363-2795
Certificate of Service
I hereby certify that a true and correct copy of the foregoing was filed and
served electronically via Missouri CaseNet, on June 5, 2014, to:
Mr. Stephen C. Doerhoff
Mr. Gregory Goodwin
(Attorneys for Defendants)
/s/ Joseph W. Luby
Attorney for Plaintiff
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