IN THE CIRCUIT COURT OF CITY OF COLE COUNTY, MISSOURI

JOHN WINFIELD, )
)
Plaintiff, )
)
v. ) No. 14AC-CC00263
)
GEORGE A. LOMBARDI, et al., )
Defendants. )

DEFENDANTS MOTION TO DISMISS FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES

Defendants George A. Lombardi, in his official capacity as the Director
of the Missouri Department of Corrections (MDOC), and Matt Briesacher,
in his official capacity as counsel and custodian of records for MDOC
(collectively, Defendants), respectfully move that this Court dismiss
plaintiff John Winfields petition under Mo.R.Civ.P. 55.27(6) for failure to
state a claim entitling him to relief. In support of their motion, Defendants
state the following:
I. Introduction
Winfield, a current inmate at the MDOC, is attempting to bring a suit
on which he failed to exhaust his administrative remedies. This Court lacks
the statutory authority to hear such a case and should dismiss it.
II. Statement of Facts
On March 3, 2014, Winfield requested records that would reveal the
identities of members involved in carrying out lawful executions. (Pet. Ex.

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1). On March 5, 2014, Briesacher responded to the request stating it would
take approximately three weeks to respond to your request. (Pet. Ex. 2).
On March 25, 2014, Briesacher responded to the request advising that some
of the records are closed pursuant to sections 217.075, 546.720 and 610.021(1)
and (14). (Pet. Ex. 3). Winfields attorney requested clarification of the
denial April 4, 2014. (Pet. Ex. 4). On May 2, 2014, Briesacher responded to
the request for clarification. (Pet. Ex. 5).
On May 9, 2014, Winfield filed a grievance appeal with MDOC
regarding the requested documents. (Def. Ex. G)
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. On May 21, 2014,
Winfield now brings suit against MDOC, naming Lombardi and Briesacher in
their official capacity, alleging Defendants unlawfully withheld open records.
(Pet. at 38).
III. Standard of Review
A motion to dismiss for failure to state a cause of action is solely a test
of the adequacy of the plaintiffs petition. It assumes that all of plaintiffs
averments are true, and liberally grants to plaintiff all reasonable inferences

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While a court may not normally consider matters outside of the pleadings in
ruling on a motion to dismiss, Hendrick v. Jay Wolfe Imports I, LLC, 404
S.W.3d 454, 457 (Mo. App. W.D. 2013), an exception has traditionally existed
where a party is challenging the courts subject matter jurisdiction over a
claim. Deuser v. Vecera, 139 F.3d 1190, 1192 n. 3 (8th Cir. 1998). This
exception should still apply in situations like the present one where there is a
challenge to a courts authority to hear a case in the first place. Alternatively,
Defendants ask that this Court convert their motion to dismiss into a motion
for summary judgment under Mo.R.Civ.P. 55.27(a).

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therefrom. State ex. rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. 2009).
The petition is reviewed to determine whether its alleged facts meet the
elements of a cause of action. Id. But while the reviewing court should
accept as true all factual allegations in a petition, it should not consider a
petitions conclusory factual allegations or legal conclusions in deciding
whether it states a claim entitling the plaintiff to relief. Hansen v. Ritter, 375
S.W.3d 201, 205 (Mo. App. W.D. 2012).
IV. Winfields claim is barred because he failed to exhaust his
administrative remedies.

Missouris Prison Litigation Reform Act (PLRA) provides that no civil
action may be brought by an offender until all administrative remedies are
exhausted. 506.384.1. A trial court lacks authority to adjudicate a non-
exhausted claim. See Shafina v. Nash, 372 S.W.3d 490, 494-495 (Mo. App.
W.D. 2012); Low v. State Dept. of Corr., 164 S.W.3d 566, 570 (Mo. App. S.D.
2005).
2

MDOCs administrative procedure consists of three steps: first, the
offender who believes he has been wronged must file an informal resolution

2
Traditionally, the rule has been that courts lack subject matter jurisdiction
over a non-exhausted claim, Low, 164 S.W.3d at 570, but in J.C.W. ex rel.
Wyciskalla, 275 S.W.3d 249 (Mo. 2009), the Missouri Supreme Court held
that the circuit courts have subject matter jurisdiction over all civil claims
that come before them. Id. at 253-254. In light of this ruling, the Western
District has reinterpreted the exhaustion requirement as one limiting a
circuit courts authority to adjudicate a particular case. Nash, 372 S.W.3d at
494-495.

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request (IRR) within 15 days of the event giving rise to his claim. (Def. Ex.
F, Policy D5-3.2, at 9, previously filed with this Court). If the offender is not
satisfied with the outcome of his IRR, he may then file an offender grievance
within seven calendar days of receiving his IRR response. (Def. Ex. F at 14).
If the offender is not satisfied with the outcome of his offender grievance, he
may then file a grievance appeal within seven calendar days of receiving the
response to his offender grievance. (Def. Ex. F at 17). An offender wishing to
file a grievance involving the lethal injection process can skip directly to the
grievance appeal stage. (Def. Ex. F at 6). MDOC will provide a response to
the appeal as soon as practical, but within 100 calendar days of receipt.
(Def. Ex. F at 17). The offender exhausts the grievance process, and his
administrative remedies, upon receiving the response to his grievance appeal.
(Def. Ex. F at 18).
3

On May 9, 2014, Winfield filed an offender grievance appeal involving
the lethal injection process, specifically his Sunshine requests. (Def. Ex. G,
previously filed with the Court). MDOC is currently reviewing Winfields
grievance and will respond as provided in the policy. (Def. Ex. J, affidavit of
Scott Weber at 2). Only after MDOC responds to the Winfields grievance
appeal has he exhausted his administrative remedies. (See Def. Ex. J at 2

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A simple overview of the grievance process can be found in the Grievance
Flow Chart at the end of the grievance manual. (Def. Ex. F at 21).

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and Def. Ex. F at 18). While Winfield mistakenly pled that he had
exhausted his administrative remedies, this Court should not consider a
petitions conclusory factual allegations or legal conclusions in deciding
whether it states a claim entitling the plaintiff to relief. Ritter, 375 S.W.3d at
205 (Mo. App. W.D. 2012).
At the preliminary injunction hearing, counsel for Winfield suggested
that a failure to exhaust argument can only be raised as an affirmative
defense. While an inmates failure to exhaust his administrative remedies is
an affirmative defense in federal court, Jones v. Bock, 549 U.S. 199, 211-212
(2007), in Missouri courts the failure to exhaust administrative remedies
deprives a court of authority to hear the case in the first place. Shafina, 372
S.W.3d at 494-495 (Mo. App. W.D. 2012).
As Winfield did not exhaust his administrative remedies, he may not
yet bring suit against MDOC or any of its employees under the Missouri
Prison Litigation Reform Act and 506.384. Accordingly, this Court should
dismiss his suit without prejudice until he has exhausted all administrative
remedies.
V. Conclusion
WHEREFORE, for all of the foregoing reasons, Defendants respectfully
move that this Court dismiss Winfields suit.


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Respectfully submitted,

CHRIS KOSTER
Attorney General

/s/Stephen C. Doerhoff
STEPEHN C. DOERHOFF, #63785
Assistant Attorney General

P. O. Box 899
Jefferson City, MO 65102
Telephone: 573-751-9623
Telefax: 573-751-5660
Email: Stephen.Doerhoff@ago.mo.gov
Attorneys for MDOC

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
th
, 2014, to:
Joseph W. Luby
Attorney for Plaintiff
jluby@dplclinic.com

/s/Stephen C. Doerhoff
Assistant Attorney General