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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DERRICK HILLS, 

Plaintiff, 

v. 

RICHARD A. ROBLE ET AL., 

Defendants.

Case No. 15-12148 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

ELIZABETH A. STAFFORD

 / 

ORDER ADOPTING REPORT AND RECOMMENDATION [31]; OVERRULING 

PLAINTIFF’S OBJECTIONS TO REPORT AND RECOMMENDATION [34]; GRANTING 

DEFENDANTS’ MOTION TO DISMISS [21] 

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 [11] 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 [18]. (ECF No. 19). 

Before the Court is Defendants Roble and Garcia’s Renewed Motion to 

Dismiss [21] filed on September 9, 2019. Plaintiff filed a Response [22] on 

September 17, 2019. Defendant filed a Reply [25] on October 1, 2019. On April 2, 

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2020, the Magistrate Judge issued a Report and Recommendation (“R&R”) [31] 

recommending that the Court grant Defendants’ Renewed Motion to Dismiss [21]. 

Plaintiff filed Objections [34] to the R&R on November 14, 2020. Defendants filed 

a Response [38] to Plaintiff’s Objections [34] on December 7, 2020. 

 For the reasons stated below, the R&R [31] is ADOPTED; Plaintiff’s 

Objections [34] are OVERRULED; and Defendants’ Renewed Motion to Dismiss 

[21] 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. 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]. 

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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 

255. 

ANALYSIS

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. 16-

2073, 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 

trial.”).

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 

overruled. 

CONCLUSION

For the reasons stated above, the R&R [31] is ADOPTED; Plaintiff’s 

Objections [34] are OVERRULED; and Defendants’ Renewed Motion to Dismiss 

[21] is GRANTED. Plaintiff’s excessive force claims against Defendant Garcia and 

six John Doe officers remain live. 

Accordingly, 

IT IS ORDERED that the R&R [31] is ADOPTED.

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IT IS FURTHER ORDERED that Plaintiff’s Objections [34] are 

OVERRULED. 

IT IS FURTHER ORDERED that Defendants’ Renewed Motion to Dismiss 

[21] is GRANTED. 

IT IS FURTHER ORDERED that Defendant Richard Roble is 

DISMISSED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: March 31, 2021 Senior United States District Judge 

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