Hills v. Roble et al

Filing 13

ORDER Rescinding 8 Order of Reference, Denying 6 MOTION to Dismiss, Granting 11 MOTION for Administrative Closure, Denying 3 MOTION for Service and ADMINISTRATIVELY CLOSING CASE. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERRICK L. HILLS,
Plaintiff,
v.

Case No. 2:15-cv-12148
Honorable Arthur J. Tarnow

RICHARD A. ROBLE,
AARON GARCIA, and
JOHN DOE 1-6,
Defendants.
______________________________/
ORDER
(1) RESCINDING THE ORDER OF REFERENCE (ECF No. 8),
(2) DENYING PLAINTIFF’S MOTION
FOR SERVICE OF THE COMPLAINT (ECF No. 3),
(3) DENYING DEFENDANTS’ MOTION TO DISMISS (ECF No. 6),
(4) GRANTING PLAINTIFF’S MOTION
FOR ADMINISTRATIVE CLOSURE (ECF No. 11),
AND
(5) CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES
I. Introduction and Background
On June 11, 2015, plaintiff Derrick L. Hills, a prisoner at the Federal
Correctional Institution in Loretto, Pennsylvania, filed a pro se civil rights complaint
for money damages under 28 U.S.C. § 1343 and Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). At the same time,
Plaintiff moved to have the United States Marshal serve his complaint on the
defendants.

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The complaint alleges that, on June 20, 2012, attorney Richard A. Roble of the
United States Trustee’s Office filed a notice of appearance in a criminal contempt
prosecution against Plaintiff, and in September of 2013, Roble represented the
Government at Plaintiff’s trial on the contempt charge. Plaintiff stated that, on
September 19, 2013, a jury found him guilty of five counts of criminal contempt, and
because he failed to appear for sentencing, a warrant was issued for his arrest.
Plaintiff further alleges in his complaint that, during the execution of the arrest
warrant on February 21, 2014, defendant Aaron Garcia, a deputy United States
Marshal, and the unnamed defendants snatched him out of his house, flung him facefirst into fourteen inches of snow, and twisted his arm with extreme force even though
he was completely cooperative. He also alleges that one of the arresting officers shot
and killed his dog.
Plaintiff states in his complaint that he is serving a sentence of forty-six months
in prison as a result of his federal conviction for criminal contempt. He claims that:
(1) defendant Roble deprived him of life and liberty without due process of law by
prosecuting him without a proper grant of authority; and (2) defendant Garcia and the
unnamed defendants violated his constitutional rights by using excessive force on him
during his arrest.
On September 11, 2015, the defendants moved to dismiss the complaint on the
ground that Plaintiff’s due process claim is barred by Heck v. Humphrey, 512 U.S.

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477 (1994), because his conviction has not been set aside.1 Defendant Roble also
claimed that he was entitled to absolute immunity from suit for his role in judicial
proceedings. Defendant Garcia sought a dismissal of Plaintiff’s claims for wrongful
arrest or wrongful entry and improper seizure of Plaintiff’s dog. He claimed that he
was entitled to qualified immunity and that Plaintiff had failed to show he had any
personal involvement in the shooting of Plaintiff’s dog.
On September 16, 2015, the Court referred Plaintiff’s case to the Magistrate
Judge for all pretrial proceedings and for a report and recommendation on all
dispositive matters. On September 22, 2015, Plaintiff filed an objection to the
defendants’ motion to dismiss and a motion of his own for administrative closing. He
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The Supreme Court held in Heck v. Humphrey, 512 U.S. at 486-87 (footnotes omitted),
that,
to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for
damages bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under § 1983. Thus, when a state
prisoner seeks damages in a § 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated. But if the district court determines
that the plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff, the
action should be allowed to proceed, in the absence of some other bar to the
suit.

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urges the Court to stay his case or to dismiss the case without prejudice because an
appeal from his criminal contempt conviction is pending in the United States Court of
Appeals for the Sixth Circuit.
In a reply to Plaintiff’s answer to the defendants’ motion to dismiss, defendants
Roble and Garcia continue to urge the Court to dismiss the claims against Roble in
their entirety and the claims against Garcia in part. Both defendants assert that
Plaintiff’s claims are barred by Heck v. Humphrey. In addition, Roble reasserts the
right to absolute immunity from suit for acts taken during judicial proceedings.
Defendant Garcia seeks partial dismissal on grounds that (1) a valid arrest warrant
forecloses Plaintiff’s claim of wrongful entry or arrest and (2) Plaintiff has failed to
show that Garcia was personally involved in the seizure of Plaintiff’s dog.
II. Discussion
A federal court may dismiss an action at the Plaintiff’s request “on terms that
the court considers proper.” Fed. R. Civ. P. 41(a)(2). The dismissal is without
prejudice unless the order states otherwise. Id. Rule 41(a)(2) is “a discretionary
procedural rule,” which requires the district court to “provide some indication as to
why it exercised its discretion as it did.” Bridgeport Music, Inc. v. Universal-MCA
Music Pub., Inc., 481 F.3d 926, 931 (6th Cir. 2007).
Here, Plaintiff desires to voluntarily dismiss his case because he recognizes that
Heck v. Humphrey is a bar to some of his claims and because he is confident that his
conviction will be reversed. A dismissal under Heck v. Humphrey, moreover, is
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without prejudice. Callihan v. Schneider, 178 F.3d 800, 804 (6th Cir. 1999). The
Court therefore believes that a dismissal of this action is appropriate and fair to all
concerned. Accordingly,
• the order referring this case to the Magistrate Judge (ECF No. 8) is rescinded;
• Plaintiff’s motion for service of the complaint (ECF No. 3) is denied as moot,
because the complaint has already been served on the defendants or on counsel for the
defendants;
• the defendants’ motion to dismiss the complaint (ECF No. 6) is denied
without prejudice; and
• Plaintiff’s motion for administrative closure (ECF No. 11) is granted. The
complaint is dismissed without prejudice, and this case is hereby closed.
SO ORDERED.

Dated: October 15, 2015

s/Arthur J. Tarnow
ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

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