Zerby v. Porter County et al

Filing 10

OPINION AND ORDER: The court CONSTRUES the motion for clarification 6 as a motion for reconsideration; DENIES the motion to reconsider 6 ; and ORDERS Victor Charles Zerby to show cause by 10/23/2024, why the claim for injunctive relief against the Porter County Sheriff should not be dismissed as moot. Signed by Judge Jon E DeGuilio on 9/24/24. (Copy mailed to pro se party). (nhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
VICTOR CHARLES ZERBY,
Plaintiff,
v.

CAUSE NO. 2:24-CV-301-JD-AZ

PORTER COUNTY SHERIFF,
Defendants.
OPINION AND ORDER
Victor Charles Zerby, a prisoner without a lawyer, filed a “Motion for
Clarification, Revisement (sic) and Preservation.” ECF 6. In it, he takes issue with the
court’s interpretation of his complaint in the screening order. Accordingly, the motion
will be construed as one for reconsideration. District judges have the discretionary
authority to reconsider interlocutory orders any time before final judgment. See Mintz v.
Caterpillar Inc., 788 F.3d 673, 679 (7th Cir. 2015). “The authority of a district judge to
reconsider a previous ruling in the same litigation . . . is governed by the doctrine of the
law of the case, which authorizes such reconsideration if there is a compelling reason,
such as a change in, or clarification of, law that makes clear that the earlier ruling was
erroneous.” Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571–72 (7th Cir. 2006)
(citations omitted). Reconsideration of an interlocutory order “serve[s] a limited
function: to correct manifest errors of law or fact or to present newly discovered
evidence.” Publishers Res., Inc. v. Walker–Davis Publ’ns, Inc., 762 F.2d 557, 561 (7th Cir.
1985) (citation omitted).

In the screening order, the court granted Zerby leave to proceed against the
Porter County Sheriff in his official capacity for permanent injunctive relief to receive
constitutionally adequate medical care for his abdomen condition and wrist injury to
the extent required by the Eighth Amendment. ECF 4. Zerby’s other potential claims
were dismissed because: (1) the Porter County Jail is not a suable entity; (2) he cannot
sue “Unknown Medical Staff/Unknown Officers” as a whole without alleging specific
actions by the unnamed individuals that would subject them to liability; and (3) he did
not plausibly describe a policy by Porter County or Quality Correctional Care that was
proximately causing him any injuries. See id. at 4–6.
In Zerby’s current motion, he provides additional details and argues that the
court misunderstood his policy allegations. He states he wasn’t “upset that he was
unable to ‘self carry’ his medications” but rather that the Jail has a policy that “forbid[s]
plaintiff from receiving any of the medications prescribed by his outside doctors.” ECF 6
at 2 (emphasis added). 1 He also, for the first time, says he wants to preserve a claim for
“punitive damages” related to his medical treatment. Id. at 3.
As noted above, Zerby’s original complaint did not state any plausible claims
except for an injunctive relief claim against the Sheriff. Importantly, Zerby sought only
injunctive relief in his complaint (see ECF 1 at 6), so even if the court misunderstood his
Monell claim, any policy issues that were potentially causing him ongoing medical harm

1 He specifically refers to pain and nerve medication he was previously prescribed after his
“complex set of operations” that “rid” him of his cancer. ECF 6 at 2. Of note, the statement that he was
not receiving any medication conflicts with the statement in his complaint—declared under penalty of
perjury—that he was receiving one-quarter of his nerve medication while at the Jail. See ECF 1 at 2.

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were encompassed by the claim allowed to proceed against the Sheriff. The fact that
Zerby has added additional clarifying details and now seeks monetary damages as
relief doesn’t provide a valid basis for reconsidering or modifying the court’s original
screening order. Therefore, the motion for reconsideration will be denied. 2
As a final matter, the court notes that, according to his recent correspondence,
Zerby has been transferred from the Porter County Jail to the Metropolitan Correctional
Center. See ECF 7. This is consistent with the recent revocation judgment entered in
United States v. Zerby, cause no. 2:23-CR-094-GSL-JEM (N.D. Ind. Sept. 26, 2023),
wherein on June 4, 2024, he was “committed to the custody of the United States Bureau
of Prisons to be imprisoned for a term of 8 months.” See id. at ECF 22. Therefore, it
appears his claim for injunctive relief against the Porter County Sheriff has become
moot. See Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996). If the claim has become
moot, it must be dismissed for lack of jurisdiction. E.F.L. v. Prim, 986 F.3d 959, 962 (7th
Cir. 2021). Accordingly, Zerby will be ordered to show cause why this claim should not
be dismissed.
For these reasons, the court:
(1) CONSTRUES the motion for clarification (ECF 6) as a motion for
reconsideration;
(2) DENIES the motion to reconsider (ECF 6); and

2 The denial does not prevent Zerby from amending his complaint in accordance with both the
Federal and Local Rules. See Fed. R. Civ. P. 15(a); N.D. Ind. L.R. 15-1; see also N.D. Ind. L.R. 7-6.

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(3) ORDERS Victor Charles Zerby to show cause by October 23, 2024, why the
claim for injunctive relief against the Porter County Sheriff should not be dismissed as
moot.
SO ORDERED on September 24, 2024
/s/JON E. DEGUILIO
JUDGE
UNITED STATES DISTRICT COURT

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