Hills v. Roble et al
ORDER adopting 31 Report and Recommendation ; granting 21 Motion to Dismiss. Defendant Roble is Dismissed. Signed by District Judge Arthur J. Tarnow. (MLan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-12148
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW
RICHARD A. ROBLE ET AL.,
U.S. MAGISTRATE JUDGE
ELIZABETH A. STAFFORD
ORDER ADOPTING REPORT AND RECOMMENDATION ; OVERRULING
PLAINTIFF’S OBJECTIONS TO REPORT AND RECOMMENDATION ; GRANTING
DEFENDANTS’ MOTION TO DISMISS 
On June 11, 2015, Plaintiff Derrick L. Hills filed a 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) against Defendants Richard
Roble, Aaron Garcia, and six John Doe U.S. Marshalls. On October 15, 2015, the
Court granted Plaintiff’s Motion for Administrative Closure  pending the appeal
of his conviction in order to overcome the Heck v. Humphrey bar to his suit. (ECF
No. 13); 512 U.S. 477 (1994). On August 5, 2019, the Court granted Plaintiff’s
Motion to Reopen the Case . (ECF No. 19).
Before the Court is Defendants Roble and Garcia’s Renewed Motion to
Dismiss  filed on September 9, 2019. Plaintiff filed a Response  on
September 17, 2019. Defendant filed a Reply  on October 1, 2019. On April 2,
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2020, the Magistrate Judge issued a Report and Recommendation (“R&R”) 
recommending that the Court grant Defendants’ Renewed Motion to Dismiss .
Plaintiff filed Objections  to the R&R on November 14, 2020. Defendants filed
a Response  to Plaintiff’s Objections  on December 7, 2020.
For the reasons stated below, the R&R  is ADOPTED; Plaintiff’s
Objections  are OVERRULED; and Defendants’ Renewed Motion to Dismiss
 is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
The Court adopts the facts of this case as set forth in the R&R:
In April 2012, U.S. Bankruptcy Judge Steven Rhodes issued a
report and recommendation to this Court to hold Hills in criminal
contempt under 18 U.S.C. § 401(3). [ECF No. 21-2; see ECF No.
21-3; see also ECF No. 21-11, PageID.345]. Judge Rhodes found
that Hills had violated an October 2007 permanent injunction
prohibiting him from engaging in actions as a Bankruptcy Petition
Preparer. [ECF No. 21-2]. Hills’ violated the injunction by, among
other things, providing bankruptcy assistance, illegally practicing
law and counseling clients to deceive bankruptcy trustees about
his role in their cases. [Id.]. After receiving the report and
recommendation, the Honorable Sean F. Cox ordered Hills to
appear for a May 2012 status conference, but Hills failed to
appear. [ECF No. 21-3]. Judge Cox thus ordered Hills to show
cause why he should not be held in criminal contempt, scheduled
a trial on the matter and requested that the U.S. Attorney appoint
an attorney to prosecute Hills for criminal contempt. [ECF No. 213]. Richard Roble, who was a Special Assistant U.S. Attorney
(SAUSA), filed a notice of appearance and prosecuted the case.
[ECF No. 21-11, PageID.346, 351]. A jury found Hills guilty of
five counts of contempt and Judge Cox sentenced him to 46
months in prison. [Id., PageID.346]. The Sixth Circuit affirmed
the judgment. [ECF No. 21-11, PageID.351-352].
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Before imposing sentence, Judge Cox had to issue an arrest
warrant for Hills because he failed to appear for sentencing. [ECF
No. 21-10; ECF No. 23, PageID.392]. On February 21, 2014,
members of the Detroit Fugitive Apprehension Team (DFAT), led
by Deputy U.S. Marshal Aaron Garcia, arrived at Hills’ residence
to arrest him. [ECF No. 23, PageID.392]. Garcia saw a person let
two large pitbulls out of the house to the back yard and saw a
woman retrieve them about 20 minutes later. [Id., PageID.392].
After observing this, members of DFAT team went to Hills’ home
to make contact but were unsuccessful after “several minutes of
Knocking and Announcing Police.” [Id., PageID.392]. DFAT then
interviewed neighbors, confirming that Hills did “reside at the
target residence” and that he “was observed at the residence the
other day.” [Id., PageID.392]. After another 20 minutes of
knocking and announcing their presence, DFAT forcibly entered
Hills’ residence. [Id., PageID.392]. “As DFAT members breached
the front door members observed a large pitbull running in an
aggressive manner towards the team.” [Id., PageID.392]. Task
Force Officer Dave Wineman shot the dog “to stop the threat,” and
the dog died. [Id., PageID.392]. Hills was arrested. [Id.,
PageID.392-393]. Hills’ girlfriend, who was at the home, told
DFAT members that Hills instructed her “to close the door and do
not open it” when the members started knocking and announcing
their presence. [Id., PageID.393].
In his complaint, Hills takes issue with the manner of his arrest
and with Roble’s role as his prosecutor. [ECF No. 1]. Hills alleges
that Roble violated his Fifth Amendment due process rights when
he “acted without authority and outsides the scope of his appointed
position as a U.S. Trustee Staff Attorney in impermissvely [sic]
prosecuting” Hills for criminal contempt. [Id., PageID.5]. And
Hills claims that “Garcia and John Doe 1-6 used excessive force
in effectuating [his] arrest on 2/21/2014,” in violation of the
Fourth Amendment. [Id., PageID.6].
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STANDARD OF REVIEW
The Court’s review of objections to a Magistrate Judge’s R&R on a
dispositive motion is de novo. 28 U.S.C. § 636(b)(1)(c). “‘[O]bjections disput[ing]
the correctness of the magistrate’s recommendation but fail[ing] to specify the
findings . . . believed in error’ are too general.” Novak v. Prison Health Services,
Inc., No. 13-11065, 2014 WL 988942, at *3 (E.D. Mich. Mar. 13, 2014) (quoting
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)). Ordinarily, objections that lack
specificity do not receive de novo review. Mira v. Marshall, 806 F.2d 636, 637 (6th
Cir. 1986). In addition, the Court may accept, reject, or modify any or all of the
Magistrate Judge’s findings or recommendations. Fed. R. Civ. P. 72(b)(3).
Defendants moves to dismiss for lack of subject matter jurisdiction pursuant
to Fed. R. Civ. P. 12(b)(1). “Where subject matter jurisdiction is challenged pursuant
to 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive
the motion.” Mich. S. R.R. Co. v. Branch & St. Joseph Cntys. Rail Users Ass’n., Inc.,
287 F.3d 568, 573 (6th Cir. 2002). A Rule 12(b)(1) challenge to subject matter
jurisdiction takes the form of either a facial or factual attack. Ohio Nat. Life Ins. Co.
v. United States, 922 F.2d 320, 325 (6th Cir. 1990). Under a facial attack, the Court
takes Plaintiff’s factual allegations as true. Id. Under a factual attack, “the court is
free to weigh the evidence and satisfy itself as to the existence of its power to hear
the case.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).
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Defendants also move to dismiss for failing to state a claim upon which relief
can be granted under FED. R. CIV. P. 12(b)(6). However, as the Magistrate Judge
notes, because Plaintiff relies upon Defendant Garcia’s report in response, the Court
analyzes Garcia’s arguments under the summary judgement standard.
“To survive a motion to dismiss, [plaintiffs] must allege ‘enough facts to state
a claim to relief that is plausible on its face.’” Traverse Bay Area Intermediate Sch.
Dist. v. Mich. Dep’t of Educ., 615 F.3d 622, 627 (6th Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court must “assume the veracity
of [the plaintiffs] well-pleaded factual allegations and determine whether the
[plaintiffs are] entitled to legal relief as a matter of law.” McCormick v. Miami Univ.,
693 F.3d 654, 658 (6th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009)). The Court must construe the complaint in the light most favorable to the
Plaintiff and draw all reasonable inferences in his favor. Ohio Police & Fire Pension
Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012).
Summary judgment is appropriate “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a). The moving party has the burden of establishing that there are no genuine
issues of material fact, which may be accomplished by demonstrating that the
nonmoving party lacks evidence to support an essential element of its case. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue for trial exists if “the
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evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Additionally, the
Court views all of the facts in the light most favorable to the nonmoving party and
draws all reasonable inferences in the nonmoving party’s favor. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson, 477 U.S. at
Objection 1: Heck v. Humphrey application
Objection one does not warrant de novo review, because it fails to specify its
objection to the R&R’s conclusion. See Mira v. Marshall, 806 F.2d 636, 637 (6th
Cir. 1986). Objections which simply dispute “‘the correctness of the magistrate’s
recommendation but fail to specify the findings . . . believed in error’ are too
general” and amount to a failure to object. Novak v. Prison Health Services, Inc.,
No. 13-11065, 2014 WL 988942, at *3 (E.D. Mich. Mar. 13, 2014) (quoting Miller
v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)).
Nonetheless, even construing objection one as specifically objecting to the
Magistrate Judge’s finding that Heck v. Humphrey bars his challenge to his
conviction, the Court finds Plaintiff’s argument unavailing. In relevant part, Heck
states the following:
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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.
512 U.S. at 486-87.
Here, Plaintiff has failed to show that his conviction has been set aside. In
fact, the Sixth Circuit affirmed his conviction direct appeal. Hills v. United States,
No. 2:12-cv-12254 (E.D. Mich. November 5, 2015), ECF No. 139. Furthermore,
his 28 U.S.C. § 2255 petition was denied, and the Sixth Circuit denied his
application for a certificate of appealability. Hills v. United States, No. 12-12254,
2016 WL 3254566 (E.D. Mich. June 14, 2016); Hills v. United States, No. 162073, 2017 WL 3221278 (6th Cir. Feb. 10, 2017). Moreover, he has not shown
any evidence to persuade this Court that his conviction or sentence has otherwise
been invalidated. Objection one is overruled.
Objection 2: Defendant Roble – Absolute Immunity
Objection two similarly does not warrant de novo review, because it lacks
specificity. Nonetheless, even construing objection two as a challenge to the
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Magistrate Judge’s conclusion that Defendant Roble enjoys absolute immunity, this
objection is overruled.
It is clearly established that prosecutors enjoy absolute immunity from civil
suits. Imbler v. Pachtman, 424 U.S. 409, 420 (1976) (prosecutors “enjoy absolute
immunity from § 1983 suits for damages when [they] act within the scope of [their]
prosecutorial duties.”); see also Koubriti v. Convertino, 593 F.3d 459, 467 (6th Cir.
2010) (prosecutors are absolute immunity for “appearances at probable
cause and grand jury hearings, evaluation of evidence and presentation
of that evidence at pre-trial and trial proceedings, and preparation of witness for
Despite this immunity, Plaintiff argues that Defendant Roble prosecuted him
without proper authority, because he had no affiliation with the U.S. Attorney’s
Office. Although Defendant Roble did not have this affiliation, he was nonetheless
authorized to prosecute Plaintiff as an attorney for the Department of Justice’s U.S.
Trustee Office. In fact, the Sixth Circuit addressed this very issue on direct appeal
and confirmed that “Roble was working as a Special Assistant United States
Attorney during his involvement in the criminal contempt proceedings. Thus, Rule
42(a)(2)’s general requirement that ‘the contempt be prosecuted by an attorney for
the government’ was met.” Hills v. United States, No. 2:12-cv-12254 (E.D. Mich.
November 5, 2015), ECF No. 139 (citing FED. R. CRIM. P. 42(A)(2)). Plaintiff has
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not given this Court any reason to doubt Roble’s authority as a prosecutor for the
United States of America. This objection is therefore overruled.
Objection 3: Defendant Garcia – Qualified Immunity
Plaintiff disputes the Magistrate Judge’s finding that Defendant Garcia, a U.S.
Marshall, is entitled to qualified immunity for Plaintiff’s claims of wrongful arrest
and wrongful entry into his home. The Court agrees with the R&R’s analysis here.
“Qualified immunity protects government officials performing discretionary
functions unless their conduct violates a clearly established statutory or
constitutional right of which a reasonable person in the official's position would have
known.” Silberstein v. City of Dayton, 440 F.3d 306, 311 (2006). To overcome this
defense, Plaintiff must allege “facts sufficient to indicate that the [government
official's] act in question violated clearly established law at the time the act was
committed.” Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir.1992).
These facts must satisfy two prongs. First, he must show that “based upon the
applicable law, the facts viewed in the light most favorable to the plaintiff show that
a constitutional violation has occurred.” Sample v. Bailey, 409 F.3d 689, 695 (6th
Cir.2005); see also Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, Plaintiff must
show that “the violation involved a clearly established constitutional right of which
a reasonable person would have known.” Sample, 409 F.3d at 696; see also Saucier,
533 U.S. at 201. A clearly established right “must be sufficiently clear that a
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reasonable official would understand that what he is doing violates that right.”
Saucier, 533 U.S. at 202 (internal quotation marks omitted).
Under the Fourth Amendment, “an arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a dwelling in which the suspect
lives when there is reason to believe the suspect is within.” Payton v. New York, 445
U.S. 573, 603 (1980). Here, because Plaintiff failed to appear in court for sentencing,
Defendant Garcia and the officers with him went to Plaintiff’s residence with an
arrest warrant to take him into custody. (ECF No. 23, PageID.392-93). When they
arrived on the scene, the officers knocked and announced themselves before entering
Plaintiff’s home to arrest him. (Id.). Under these facts, Plaintiff has failed to allege
that Defendant Garcia violated his Fourth Amendment rights. Objection three is
For the reasons stated above, the R&R  is ADOPTED; Plaintiff’s
Objections  are OVERRULED; and Defendants’ Renewed Motion to Dismiss
 is GRANTED. Plaintiff’s excessive force claims against Defendant Garcia and
six John Doe officers remain live.
IT IS ORDERED that the R&R  is ADOPTED.
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IT IS FURTHER ORDERED that Plaintiff’s Objections  are
IT IS FURTHER ORDERED that Defendants’ Renewed Motion to Dismiss
 is GRANTED.
IT IS FURTHER ORDERED that Defendant Richard Roble is
Dated: March 31, 2021
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
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