UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DERRICK HILLS, 

 Plaintiff, 

v 

RICHARD ROBLE, et al., 

 Defendants. 

Civil Action No.: 15-12148 

Honorable Arthur J. Tarnow 

Magistrate Judge Elizabeth A. Stafford 

 / 

REPORT AND RECOMMENDATION TO GRANT DEFENDANTS’ 

RENEWED MOTION TO DISMISS [ECF NO. 21] 

I. Introduction 

Plaintiff Derrick Hills, proceeding pro se, brought this civil rights action 

for money damages against Special Assistant U.S. Attorney Richard A. 

Roble, Deputy U.S. Marshal Aaron Garcia and six unnamed deputy U.S. 

Marshal (John Doe 1-6) in their individual capacities. [ECF No. 1]. Hills 

alleges that Roble violated his Fifth Amendment procedural due process 

rights, and that Garcia and John Doe 1-6 used excessive force in violation 

of the Fourth Amendment. [ECF No. 1]. Roble and Garcia initially moved 

to dismiss in September 2015, but the Honorable Arthur J. Tarnow stayed 

the case pending Hills’ appeal from his criminal contempt conviction. [ECF 

No. 6; ECF No. 11; ECF No. 13]. Judge Tarnow reopened the case in 

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August 2019 and then referred the matter to the undersigned for all pretrial 

matters under 28 U.S.C. § 636(b)(1). [ECF No. 19; ECF No. 24]. 

In September 2019, Roble’s renewed his motion to dismiss and 

Garcia renewed his motion for partial dismissal under Federal Rules of Civil 

Procedure 12(b)(1) and 12(b)(6), arguing that the Court lacks subjectmatter jurisdiction over Hills’ claims and that his complaint fails to state a 

claim upon which relief may be granted. [ECF No. 21]. Hills responded. 

[ECF No. 22]. The Court RECOMMENDS that the defendants’ motion be 

GRANTED. 

II. Background 

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 

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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. 21-3]. 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]. 

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, 

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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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III. Analysis 

A. 

 Defendants Roble and Garcia argue that some of Hills’ claims should 

be dismissed for want of subject matter jurisdiction under Rule 12(b)(1). 

Subject-matter jurisdiction is a threshold issue that must be addressed 

before the merits. Steel Co. v. Citizens for a Better Environment, 523 U.S. 

83, 94-95 (1998). “Federal courts lack subject-matter jurisdiction when an 

asserted federal claim is so insubstantial, implausible, foreclosed by prior 

decisions of this Court, or otherwise completely devoid of merit as not to 

involve a federal controversy.” Arthur Andersen LLP v. Carlisle, 556 U.S. 

624, 629 (2009) (citations and quotation marks omitted). Given that, a 

claim against a defendant who enjoys absolute immunity should be 

dismissed for lack of subject matter jurisdiction. Hinz v. Torres, 985 F.2d 

573 (9th Cir. 1993). 

Defendants also rely on Rule 12(b)(6), which tests a complaint’s legal 

sufficiency. “To survive a motion to dismiss, a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is 

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

Although defendants requested dismissal on the pleadings under 

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Rule 12(b), Hills filed and relied on Garcia’s report in his response to 

support his claim that Garcia did not observe Hills at the house before 

entering, and therefore is not entitled to qualified immunity. [ECF No. 22, 

PageID.360; ECF No. 23]. To consider that report, the Court must evaluate 

Garcia’s entitlement to qualified immunity under the Federal Rule of Civil 

Procedure 56(a) summary judgment standard. Rule 12(d). If a party was 

likely to be surprised by this treatment, the Court would be required to 

provide notice. Salehpour v. Univ. of Tennessee, 159 F.3d 199, 204 (6th 

Cir. 1998). Neither party is likely to be surprised here; Hills asked the Court 

to consider the report by filing it and relying on it in his response, and 

Garcia’s reply included no objections to the Court’s consideration of his 

report. [ECF No. 23; ECF No. 25]. Thus, the Court will consider the report 

and whether there is a “genuine dispute as to any material fact” on the 

issue of whether Garcia is entitled to qualified immunity. Rule 56(a). 

Both parties also relied on evidence outside of the pleadings on the 

issue of whether Roble was properly appointed to prosecute Hills. [See 

ECF No. 6, PageID.37, n.2; ECF No. 22, PageID.358, 369]. Roble noted in 

his motion that the Court could convert his motion into one under Rule 56, 

and Hills responded by citing his own evidence. [Id.]. The Court has thus 

considered the parties’ evidence and Hills’ due process claim under the 

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Rule 56(a) standard. 

The Court also notes that, on September 22, 2015, Hills filed a 

supplement to his complaint that appears to have been part of his response 

to defendants’ September 11, 2015 motion to dismiss. [ECF No. 10]. In 

the supplement, Hills adds allegations that Garcia does not enjoy qualified 

immunity because the arrest warrant was not valid and because Garcia 

violated the Fourth Amendment by entering his house without knowing if he 

was inside. [ECF No. 10, PageID.179-180]. Hills could amend his 

complaint as a matter of right within 21 days of defendants’ September 11 

answer and initial motion to dismiss. Fed. R. Civ. P. 15(a)(1)(B). But Hills 

was not allowed to simply supplement his earlier complaint. Under the 

Court’s local rules, “Any amendment to a pleading, whether filed as a 

matter of course or upon a motion to amend, must, except by leave of 

court, reproduce the entire pleading as amended, and may not incorporate 

any prior pleading by reference.” E.D. Mich. LR 15.1. 

Despite Hills’ failure to properly amend his complaint, the Court has 

considered the new allegation that Garcia’s entry into the house violated 

the Fourth Amendment when evaluating his motion for partial dismissal. 

Even so, Hills should be ordered to file a single amended complaint that 

incorporates all his claims that survive the motion here. 

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B. 

 The Court will first address the claim against Roble. 

1. Heck v. Humphrey Doctrine

 Roble asserts that Hills’ claims against him are barred by the Heck v. 

Humphrey doctrine. [ECF No. 21, PageID.250-252]. Under Heck, a 

§ 1983 suit for damages that would render a conviction invalid requires 

proof that the conviction has been reversed, expunged or declared invalid. 

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Hills asserts that Heck 

does not bar his claims against Roble because his federal criminal 

conviction has been set aside. [ECF No. 22, PageID.360]. To the contrary, 

Hills’ “conviction and sentence were affirmed on direct appeal.” 

Hills v. United States, No. 12-12254, 2016 WL 3254566, at *1 (E.D. Mich. 

June 14, 2016). His motion to vacate his sentence under 28 U.S.C. § 2255 

was also denied, and both Judge Cox and the Sixth Circuit denied his 

application for a certificate of appealability. Id.; Hills v. United States, No. 

16-2073, 2017 WL 3221278 (6th Cir. Feb. 10, 2017). 

 Hills’ conviction for criminal contempt has not been reversed, 

expunged or declared invalid, so his claim against Roble is barred by Heck. 

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2. Absolute Immunity 

Even if Hills’ claim against Roble were not barred by the Heck 

doctrine, Roble enjoys absolute immunity for his prosecution of Hills. 

“[O]fficials enjoy absolute immunity from civil liability related to their 

performance of ‘prosecutorial’ functions.” Koubriti v. Convertino, 593 F.3d 

459, 467 (6th Cir. 2010). The functions covered by this absolute immunity 

are those “that serve as an ‘integral part of the judicial process’ or that are 

‘intimately associated with the judicial process’ are absolutely immune from 

civil suits.” Id. (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). 

Roble bears the burden of proving that the conduct of which Hills complains 

is protected by absolute immunity. Id. 

To support his argument that Roble is not entitled to immunity, Hills 

claims that Roble acted as a prosecutor without authority because he was 

a U.S. Trustee staff attorney and may not have been properly appointed as 

a SAUSA. [ECF No. 22, PageID.358, 369]. This argument is without merit. 

First, as noted, absolute immunity applies to an “official” who performs a 

prosecutorial function. Koubriti. 593 F.3d at 467. Regardless of whether 

Roble was properly appointed as a SAUSA, he was still an “official”—an 

attorney of the U.S. Trustee’s Office—who performed a prosecutorial 

function in Hills’ criminal case. 

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Second, the Sixth Circuit has already rejected Hills’ claim that Roble 

was not properly appointed as a SAUSA. Hills had argued that “Roble was 

not authorized to act as the sole and primary prosecutor because he was 

not an Assistant United States Attorney and he was not appointed by the 

district court.” [ECF No. 21-11, PageID.350]. Finding otherwise, the court 

reasoned that Hills raised his challenge to Roble prosecuting the case for 

the first time on appeal, meaning that the court could address the issue 

only if Hills showed that there were exceptional circumstances or that 

failure to consider the issue would cause a plain miscarriage of justice. [Id., 

PageID.350-351]. Hills failed to make the necessary showing because 

“Roble was working as a Special Assistant United States Attorney during 

his involvement in the criminal contempt proceedings” and thus met the 

requirement of Federal Rule of Criminal Procedure 42(a)(2) that “the 

contempt be prosecuted by an attorney for the government.” [Id., 

PageID.351]. 

Roble has also submitted copies of letters and other documents from 

September 2010 to September 2014 showing that Roble was “appointed as 

a Special Assistant United States Attorney for the Easter District of 

Michigan” under 28 U.S.C. § 543. [ECF No. 6-8, PageID.128-132]. And 

Roble attached transcripts from the contempt proceedings in which he 

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appeared as a SAUSA on behalf of the government. [ECF No. 21-5, 

PageID.310-330]. There is no genuine factual dispute that Roble was an 

official who prosecuted Hills, nor that Roble was appointed as a SAUSA 

and acted in that capacity without objection during Hills contempt trial. 

Thus, Roble has met his burden of showing that absolute immunity bars 

Hills’ claims against him.

C. 

 The Court next addresses the claims against Garcia. 

Garcia does not seek dismissal of Hills’ excessive force claim at this 

juncture, but he asserts that he is entitled to qualified immunity for any 

claims of wrongful arrest, wrongful entry and seizure of Hills’ dog. Garcia 

reasons that “[t]he arrest and entry were based on a lawful arrest warrant” 

and that he did not shoot Hills’ dog. [ECF No. 21, PageID.255 & n.3]. 

Qualified immunity applies when, viewing the evidence in a light most 

favorable to the plaintiff, the defendant did not violate a clearly established 

constitutional right. Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 

(6th Cir. 2005). In the Sixth Circuit, a constitutional violation is established 

by binding precedent from the Supreme Court or this circuit, and a court 

should look beyond those precedents only in extraordinary cases. Walton 

v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir. 1993), superseded by 

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statute on other grounds as stated in Livermore ex rel. Rohm v. Lubelan, 

476 F.3d 397, 407-08 (6th Cir. 2007). 

The Supreme Court has warned courts “not to define clearly 

established law at a high level of generality.” Kisela v. Hughes, 138 S.Ct. 

1148, 1152 (2018) (citation and quotation marks omitted). “The general 

proposition, for example, that an unreasonable search or seizure violates 

the Fourth Amendment is of little help in determining whether the violative 

nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 563 

U.S. 731, 742 (2011). A case need not be directly on point to be clearly 

established, but existing precedent must place officials on notice that the 

conduct at issue is unlawful. Kisela, 138 S.Ct. at 1152-53. 

Before addressing the arguments about the claims against Garcia 

raised in the motion for partial dismissal, the Court points out that Hills’ 

June 2015 complaint only makes claims against Garcia for excessive force 

and for the shooting of his dog, while his September 2015 supplement 

added an allegation that Garcia violated the Fourth Amendment by entering 

his house without knowing if he was inside. [ECF No. 1, PageID.7-8; ECF 

No. 10, PageID.180]. Even though Hills has not properly amended his 

complaint to add his new allegations, Garcia’s motion addresses the 

allegation about his entry into the house, so the Court will discuss it too. 

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1. Forcible Entry of the Residence 

“[F]or Fourth Amendment purposes, 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). Since 

Judge Cox issued an arrest warrant for Hills after he failed to appear for 

sentencing, clearly established precedent allowed Garcia to enter Hills’ 

home to arrest him. [ECF No. 1, PageID.3; ECF No. 21-9; ECF No. 21-10]. 

 Hills contends that Garcia is not entitled to qualified immunity 

“because he did not have a search warrant,” [ECF No. 22, PageID.360], but 

that argument is off the mark because Garcia was armed with an arrest 

warrant. Under Payton, Garcia was permitted to enter Hills’ home to serve 

that warrant. Payton, 445 U.S. at 603. Hills also argues that Garcia did not 

observe him (Hills) prior to his entry into the house. [Id.]. But Payton does 

not require that law enforcement observe the person subject to the warrant 

before entering the person’s home. Officers need only to have reason to 

believe that the suspect is in the home. 

If there is sufficient evidence of a citizen’s participation in a 

felony to persuade a judicial officer that his arrest is justified, it 

is constitutionally reasonable to require him to open his doors to 

the officers of the law. Thus, for Fourth Amendment purposes, 

an arrest warrant founded on probable cause implicitly carries 

with it the limited authority to enter a dwelling in which the 

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suspect lives when there is reason to believe the suspect is 

within. 

Payton, 445 U.S. at 602-03 (emphasis added). 

Here, Garcia’s report states that DFAT members knew there was 

someone in the house who would not respond to their knocks and 

announcements, and they interviewed neighbors who confirmed that Hills 

did “reside at the target residence” and that he “was observed at the 

residence the other day.” [ECF No. 23, PageID.392]. Hills does not 

dispute that DFAT conducted this investigation. Under these facts, the 

DFAT members had reason to believe that Hills was in the house, and Hills 

cites no binding precedent establishing that those reasons were insufficient 

to allow the DFAT members to enter the house to execute the warrant. 

2. Seizure of Hills’ Property

Garcia further argues that the claim against him for the seizure of 

Hills’ dog should be dismissed for failure to state a claim because Hills 

“does not claim that Garcia was personally involved in any injury to the 

dog.” [ECF No. 21, PageID.255-259]. 

 To state a cognizable claim against Garcia for the seizure of his dog 

under § 1983, Hills must allege facts that Garcia deprived him of a 

constitutionally protected right, and he did so while “acting under color of 

state law.” Heyerman v. Cty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 

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2012). Because Hills is suing the named defendants in their individual 

capacity, each defendant can only be held responsible for his own 

unconstitutional behavior. Id. Hills does not allege that Garcia shot his 

dog. In his complaint, he asserts that “one of his dogs was barking in a 

stand-down position” and was “shot and killed by one of the Marshals” 

during his arrest. [ECF No. 1, PageID.4]. And in his motion to stay, Hills 

states that Garcia “did not kill the dog” but is “equally if not more culpable” 

for his dog’s death because he “determine[d] entry was proper.” [ECF No. 

11, PageID.185]. So Hills is asserting that Garcia is liable for the actions of 

his subordinate. His complaint fails to plead facts supporting such a claim. 

“Liability arising under Section 1983 generally does not reach 

supervisors merely because they hold supervisory positions over those 

who have committed constitutional violations.” Jordan v. City of Saginaw, 

No. 02-10134-BC, 2005 WL 174881, at *8 (E.D. Mich. Jan. 25, 2005). For 

Garcia to be held liable for the actions of his subordinate, Hills “[a]t a 

minimum [ ] must show that [Garcia] at least implicitly authorized, 

approved, or knowingly acquiesced in the unconstitutional conduct of the 

offending officers.” Hays v. Jefferson Cty., Ky., 668 F.2d 869, 874 (6th Cir. 

1982). “[T]he mere right to control without any control or direction having 

been exercised and without any failure to supervise is not enough to 

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support § 1983 liability.” Monell v. Dep't of Soc. Servs. of City of New York, 

436 U.S. 658, 694 (1978). 

 Hills’ complaint does not allege that Garcia authorized, approved or 

acquiesced in the shooting of the dog. [ECF No. 1]. He also did not 

address this issue in his response to Garcia’s renewed motion for partial 

dismissal; he cited no authority showing that Garcia could be held liable for 

his subordinate’s shooting of the dog. [See ECF No. 22]. Thus, Hills has 

states no plausible claim that Garcia is liable under § 1983 for the shooting 

of his dog, and that claim against Garcia should be dismissed. 

IV. Conclusion 

The Court RECOMMENDS that Roble’s renewed motion to dismiss 

and Garcia’s renewed motion to partially dismiss [ECF No. 21] should be 

GRANTED. 

 s/Elizabeth A. Stafford 

 ELIZABETH A. STAFFORD 

 United States Magistrate Judge 

Dated: April 2, 2020 

NOTICE TO THE PARTIES ABOUT OBJECTIONS 

 Within 14 days of being served with this report and recommendation, 

any party may serve and file specific written objections to this Court’s 

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findings and recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 

72(b)(2). If a party fails to timely file specific objections, any further appeal 

is waived. Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991). And 

only the specific objections to this report and recommendation are 

preserved for appeal; all other objections are waived. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991).

 Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this report and 

recommendation to which it pertains. Within 14 days after service of 

objections, any non-objecting party must file a response to the 

objections, specifically addressing each issue raised in the objections in the 

same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

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System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on April 2, 2020. 

 s/Marlena Williams 

 MARLENA WILLIAMS 

 Case Manager 

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