Armour

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEMETRIUS ARMOUR,

Plaintiff,

v. Case No. 23-cv-3072-NJR

AMANDA CHOATE, ANGELA

WALTER, ANTHONY WILLS,

MELISSA OGLE, and WEXFORD

HEALTH SOURCES, INC.,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, District Judge:

Plaintiff Demetrius Armour, an inmate of the Illinois Department of Corrections

currently incarcerated at Menard Correctional Center, brought this action for

deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. On July 11, 2025,

Armour’s claims were dismissed for his failure to exhaust his administrative remedies

prior to filing his lawsuit, and judgment was entered against him (Docs. 59, 60).

The matter is now before the Court on Armour’s motion for new trial (Doc. 61).

Defendants filed a response in opposition to the motion (Doc. 62).

BACKGROUND

Armour’s First Amended Complaint alleged that Defendants were deliberately

indifferent in treating his flu-like symptoms (Docs. 14, 15). He was allowed to proceed on

three counts related to the failure to schedule and provide treatment for his symptoms

(Doc. 15, p. 3). Defendants filed motions for summary judgment, arguing that Armour

failed to exhaust his administrative remedies prior to filing his lawsuit (Docs. 38, 39, 42).

Defendants acknowledged that Armour filed two grievances related to his claims, dated

November 7, 2022, and February 22, 2023, but he failed to pursue either grievance

through the entire grievance process before filing his Complaint (Doc. 59, pp. 3-4).

Armour received responses from the counselor prior to filing his lawsuit but did not

pursue those grievances with the grievance officer or the Administrative Review Board

(“ARB”).

In response, Armour acknowledged that he did not pursue the grievances after

receiving the responses but argued he had already done everything that he could to

exhaust his administrative remedies. Armour argued that his February 2023 grievance

was a duplicate that he intended to submit to the grievance officer because he never

received a response from the counselor for his November 2022 grievance (Doc. 59, p. 5).

When he failed to receive a response from the grievance officer, he submitted the

duplicate grievance to the ARB which was returned (Id.). Armour argued that he filed his

grievance at all three levels of the grievance process and did not have to restart the

process when he finally received a response to both grievances from his counselor in June

2023.

Because the parties did not dispute that Armour filed two grievances that he chose

not to file with the grievance officer, the Court found that an evidentiary hearing was

unnecessary. The parties did not dispute the facts but instead disputed whether Armour

had to further pursue his grievances after experiencing a delay in receiving a response

from the counselor.

The Court found that Armour failed to exhaust his administrative remedies.

Although Armour initially inquired about the status of his November 2022 grievance and

received a response from the counselor indicating that she was waiting on a response

from the healthcare unit, Armour eventually chose to file a second grievance in February

2023 rather than await a response to his original grievance (Doc. 59, p. 11). He then

submitted a copy of that grievance to the ARB (Id.). Armour did experience delays in the

process, but the Court found that the delays were not so lengthy as to make the grievance

process unavailable (Id. at pp. 11-12). The grievance procedures did not provide a

deadline for the counselor to respond to the grievance, and Armour was made aware of

the delays. He knew that his grievance was still being processed but chose to try to skip

to the next step. And when he did receive a response to his grievance, he failed to pursue

the grievance further. He received a response in June 2023 to both grievances, informing

him that his subsequent grievance was not reviewed by the grievance officer and was

treated as a new grievance (Doc. 59, p. 13).1 He made no attempts to try to further exhaust

his grievances prior to filing his lawsuit, despite not filing his original Complaint until

three months after receiving the grievance responses. The Court found the grievance

process was available to Armour and that he failed to pursue his grievances through the

1 The Court notes that the order mistakenly indicates at one point that the counselor returned the

grievance on June 26, 2024 (Doc. 59, p. 13), although previous references to the response

accurately indicate that the grievance was returned on June 26, 2023, or shortly thereafter

(Doc. 59, pp. 4, 10). In calculating the delays in receiving a response from the counselor, the Court

also referred to the grievances as being filed in 2023 and 2024, but all other references accurately

note that the grievances were filed on November 7, 2022, and February 22, 2023 (Id. at p. 11;

Doc. 42-2, pp. 44, 48).

entire process. His claims were dismissed without prejudice because of his failure to

properly exhaust his administrative remedies.

In his motion for new trial, Armour argues that the Court improperly decided

disputed facts, and he offers what he calls newly discovered evidence. Armour argues

that the counselor had 30 days to respond to his grievance, pointing to a grievance

procedure pilot program that Armour alleges he received after the Court’s ruling on the

summary judgment motions (Doc. 61, pp. 6-12). As he did in his response to the motions,

Armour again argues that he did not have to exhaust his original grievance because he

submitted his duplicate grievance to the ARB.

DISCUSSION

Armour argues that he seeks a reconsideration of the order granting summary

judgment under Federal Rule of Civil Procedure 59(e). Defendants assert, however, that

the motion should be considered pursuant to Federal Rule of Civil Procedure 60(b)

because Armour offers new evidence. “[W]hether a motion filed within [28] days of the

entry of judgment should be analyzed under Rule 59(e) or Rule 60(b) depends on the

substance of the motion, not on the timing or label affixed to it.” Obriecht v. Raemisch,

517 F.3d 489, 493 (7th Cir. 2008) (emphasis in the original) (citing Borrero v. City of Chicago,

456 F.3d 698, 701-02 (7th Cir. 2006)). Nevertheless, a motion to reconsider filed more than

28 days after entry of the challenged order “automatically becomes a Rule 60(b) motion.”

Hope v. United States, 43 F.3d 1140, 1143 (7th Cir. 1994) (citing United States v. Deutsch,

981 F.2d 299, 301 (7th Cir. 1992)); see also Talano v. N.W. Med. Faculty Found., Inc., 273 F.3d

757, 762 (7th Cir. 2001). Armour’s motion was filed within 28 days of the entry of

judgment in this case. He argues that he has newly discovered evidence that

demonstrates he only had to wait 30 days before pursuing his grievance to the next level

in the process. Thus, his motion is properly considered under Rule 59(e).

A motion to alter or amend judgment filed pursuant to Rule 59(e) may only be

granted if a movant shows there was a “manifest error” of law or fact or presents newly

discovered evidence that could not have been discovered previously. Cincinnati Life Ins.

Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (quoting Blue v. Hartford Life & Acc. Ins. Co.,

698 F.3d 587, 598 (7th Cir. 2012)). “‘[M]anifest error’ is not demonstrated by the

disappointment of the losing party. It is the wholesale disregard, misapplication, or

failure to recognize controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606

(7th Cir. 2000) (internal citations omitted).

Here, Armour argues that he has newly discovered evidence that demonstrates he

should have received a response from the counselor within 30 days. To support his claim,

he offers an IDOC Memorandum about the Pilot Grievance Procedure Program that was

issued to certain prisons in September 2023 (Doc. 61, p. 6). The pilot program was

presented to individuals in custody at certain prisons on September 5, 2023, informing

them that those prisons would begin a new grievance process on September 1, 2023, in

an effort to improve the procedures outlined in the administrative directives (Id.). The

memorandum states that a counselor shall return a grievance within 30 days of receipt or

may request a 14-calendar day extension of time (Id. at p. 9).

Although Armour contends that this is a newly discovered document, Armour

referred to the document in his responsive brief, arguing that the pilot program required

a grievance response from a counselor within 30 days (Doc. 53, p. 2). Armour argues that

he did not have a copy of the memorandum in his possession when he filed his response.

Further, the pilot program was never codified in the Illinois Administrative Code.

The Code does not currently specify a response deadline for the counselor once a

grievance is received. There is no evidence to suggest that the pilot program became

anything other than a trial program. More importantly, the memo is dated September 5,

2023, and notes that the program began at Menard on September 1, 2023 (Doc. 61, p. 6).

Armour submitted his grievances in November 2022 and February 2023, well before this

pilot program was even in effect at Menard. Nothing in the record suggests that the

counselor was required to return Armour’s grievance within 30 days of its receipt.

Armour’s remaining arguments merely restate the arguments he previously

presented in his original responsive brief. He argues that he could proceed to the next

level of the grievance process when he failed to receive a response from the counselor

within what he thought was a reasonable timeframe. To support his argument, he cites

Brengettcy v. Horton, 423 F.3d 674 (7th Cir. 2005), in which the Seventh Circuit found a

pretrial detainee had done all that he could to properly exhaust his grievance when he

failed to receive a timely response from grievance officials. However, Brengettcy dealt

with grievance policies at the Cook County Department of Corrections, which required a

response within 30 days or notice that the response would take longer than 30 days.

Brengettcy, 423 F.3d at 682. But IDOC’s administrative code has no such deadline for a

counselor to respond. And, as the Court noted in granting the summary judgment

motions, Armour was given notice that his grievance was still pending a response from

the healthcare unit (Doc. 59, p. 11). He also eventually received responses to his

grievances and had an opportunity to pursue the grievances through the grievance

process, but he failed to take those additional steps. Thus, he failed to exhaust his

administrative remedies prior to filing his lawsuit. Armour’s additional arguments and

documents fail to demonstrate that he is entitled to relief.

CONCLUSION

For the reasons stated above, Armour’s motion for new trial (Doc. 61) is DENIED.

IT IS SO ORDERED.

DATED: March 9, 2026

NANCY J. ROSENSTENGEL

United States District Judge