                                   NOT FOR PUBLICATION
                                    File Name: 06a0479n.06
                                      Filed: July 10, 2006

                                           No. 05-1647

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

WILLIAM JACOB,

       Plaintiff-Appellee,

v.                                                    ON APPEAL FROM THE
                                                      UNITED STATES DISTRICT
TOWNSHIP OF WEST BLOOMFIELD;                          COURT FOR THE EASTERN
MICHAEL C. KILLIAN, in his                            DISTRICT OF MICHIGAN
individual and official capacities;
LARRY RUSHING, in his individual
and official capacities,

       Defendants-Appellants.

___________________________________/

BEFORE:        SUHRHEINRICH, ROGERS, and COOK, Circuit Judges.

       SUHRHEINRICH, J., Plaintiff-Appellee William Jacob brought suit under 42 U.S.C. §

1983 against Defendants-Appellants Township of West Bloomfield (“the Township”); Michael C.

Killian, in his individual and official capacities; and Larry Rushing, in his individual and official

capacities, for alleged violations of Jacob’s constitutional rights. Killian appeals the judgment of

the district court denying in part his motion for summary judgment on all claims. For the reasons

that follow, we REVERSE in part and VACATE and REMAND in part for further proceedings.

                                       I. BACKGROUND

       In 1990, Jacob and his family moved into a house located on the corner of Willow Road and
Hoover Road in West Bloomfield, Michigan.1 The property is partially enclosed by varying types

of fencing. (J.A. 197.) There is a significant gap in the fence on either side of the driveway,

exposing Jacob’s yard to passersby. (J.A. 442-43.) The driveway entrance is on Willow Road,

which Jacob describes as “a main highway.” (Appellee’s Br. 5.) Jacob erected several “No

Trespassing” and similar signs around his property. (J.A. 261.)

       Defendant Killian has been a code enforcement officer for the Township since October 1998.

(J.A. 208.) In 1999, Killian received an unsolicited complaint regarding the condition of Jacob’s

property. (J.A. 221.) Killian investigated the situation and found potentially unlicensed and

inoperable vehicles, a trailer, and “castoff material” in the yard. Grass was growing around these

items, and the yard “needed some general cleanup.” (J.A. 221-22.) In filling out paperwork on the

matter, Killian discovered that there had been ten previous complaints relating to Jacob’s property

since 1990. (J.A. 222.) Killian sent Jacob a notice of violation. (J.A. 224.) After a follow up

investigation, Killian determined that Jacob remained in noncompliance. (J.A. 92.)

       A series of investigations and notices followed. (J.A. 92.) The Township eventually filed

misdemeanor criminal charges. In October 1999, Jacob entered into a plea agreement with the

Township attorney.2 (J.A. 407-08.) The agreement called for Killian to plead guilty to the charges

of blight. (J.A. 272.) In return, the court was to issue, but not sign, a commitment order to have

Jacob serve thirty days in the county jail. Fourteen days after entering the guilty plea, the court was

to sign the order unless Killian, after again inspecting the property, notified the court that Jacob had

cured the blight conditions. (Id.)


       1
        Jacob and his family have since moved to Kentucky.
       2
        The Township hired an outside attorney to handle district court prosecutions.

                                                  -2-
       As instructed, Killian reinspected the property after fourteen days. He notified the Township

attorney of continued violations and recommended that the attorney petition the court to sign the

commitment order. (J.A. 274-75.) The Township attorney heeded Killian’s recommendation and

requested that the court sign the order. (J.A. 277.)

       The court gave Jacob two days to appear. (J.A. 408.) At that time, however, Jacob was in

the hospital and was thus unable to appear before the court. (Id.) Jacob claims that both he and his

wife contacted the court to notify it of his situation. (J.A. 248.) Nonetheless, the court issued the

order after two days without an appearance. Jacob served thirty days in a county jail. (J.A. 408.)

       Killian continued to investigate and cite Jacob for blight conditions after Jacob completed

his sentence. (J.A. 93.) A lengthy dispute over the erection of a new fence followed. (J.A. 408-10.)

       In September 2002, Defendant Rushing, another code enforcement officer with the

Township, issued Jacob a ticket for allegedly leaving unused lawnmowers in his yard. (J.A. 410.)

That charged was ultimately dismissed. (J.A. 411.)

       Jacob brought suit under § 1983 against the Township, Killian, and Rushing (collectively,

“Defendants”) for violations of his constitutional rights. Jacob claimed multiple violations of

procedural and substantive due process, equal protection, and the Fourth Amendment. (J.A. 11-15.)

Jacob alleged, among other things, that on at least four occasions beginning in September 1999,

Killian had entered Jacob’s yard without permission or a search warrant. (J.A. 12, 412-13.) On at

least one occasion, Killian is alleged to have taken photographs of the interior of Jacob’s house

through windows. (J.A. 412.) Killian has never denied these allegations.

       Defendants moved for summary judgment on all claims, and alternatively, that Killian and

Rushing were entitled to qualified immunity and that the Township was entitled to municipal


                                                -3-
immunity. (J.A. 41-42.)

       The district court granted Defendants’ motion on all but two claims: a procedural due process

claim relating to Jacob’s incarceration, and a Fourth Amendment claim relating to allegations that

Killian illegally searched Jacob’s yard without a warrant.3 (J.A. 37.) As to both remaining claims,

the district court denied the Township municipal immunity and denied Killian qualified immunity.

Killian appeals the denial of qualified immunity. (J.A. 38.)

                                           II. ANALYSIS

       The sole issue on appeal is whether the district court erred in denying Killian qualified

immunity.4 Denial of summary judgment on the issue of qualified immunity is an interlocutory

decision that is immediately appealable as a final order. Mitchell v. Forsyth, 472 U.S. 511, 530

(1985); Summers v. Leis, 368 F.3d 881, 886-87 (6th Cir. 2004).

       Denial of summary judgment is reviewed de novo. Summers, 368 F.3d at 885. Summary

judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). This Court must view all facts and inferences drawn therefrom in the light most favorable

to the non-moving party, but uphold the grant of summary judgment “[w]here the record taken as

a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec.


       3
         Rushing is not alleged to have been involved in either remaining claim; thus, he has been
effectively dismissed from this case.
       4
         Jacob devotes a substantial portion of his response brief arguing that the district court erred
in granting Defendants summary judgment on his other claims. However, Jacob did not file a cross
appeal, and thus, these issues are not properly before this Court. See Ford Motor Credit Co. v. Aetna
Cas. & Sur. Co., 717 F.2d 959, 962 (6th Cir. 1983).

                                                  -4-
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

       We note at the outset that Jacob’s primary argument–that this Court does not have

jurisdiction to hear the appeal because Killian raises only issues of fact–is without merit. To the

extent that genuine issues of fact exist, this Court may nonetheless resolve the legal issues based on

the facts as construed in a light most favorable to Jacob. See Estate of Carter v. City of Detroit, 408

F.3d 305, 310 (6th Cir. 2005). Because Killian seeks a determination as to whether the facts as

construed by the district court constitute a violation of clearly established constitutional law, we

proceed to the merits. See generally Johnson v. Jones, 515 U.S. 304, 311 (1995) (stating that a

denial of qualified immunity is immediately appealable if “the issue appealed concern[s], not which

facts the parties might be able to prove, but, rather, whether or not certain facts showed a violation

of ‘clearly established’ law”).

       Qualified immunity is “an entitlement not to stand trial or face the other burdens of

litigation,” Mitchell, 472 U.S. at 526, and “‘is an immunity from suit rather than a mere defense to

liability,’” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (quoting Mitchell, 472 U.S. at

526). The Supreme Court has created a two-step process for analyzing claims of qualified

immunity. First, the court must determine whether a constitutional violation has occurred. Saucier

v. Katz, 533 U.S. 194, 201 (2001). If so, the court then determines whether the constitutional right

that was violated was “clearly established” at the time of the violation. Id. “The relevant,

dispositive inquiry in determining whether a right is clearly established is whether it would be clear

to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202.

This Court looks “first to decisions of the Supreme Court, then to decisions of this Court and other

courts within our circuit, and finally to decisions of other circuits” to determine whether the law was


                                                 -5-
clear at the time. Daugherty v. Campbell, 935 F.2d 780, 784 (6th Cir. 1991). If this Court

determines that the constitutional right was clearly established, the defendant is not entitled to

qualified immunity. Once raised, the plaintiff bears the burden of proving that the defendant is not

entitled to qualified immunity. Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2006).

                                 A. Fourth Amendment Claims

       Killian first argues that the district court erred in denying him qualified immunity on Jacob’s

Fourth Amendment claim. In the complaint, Jacob alleged that Killian had violated his Fourth

Amendment rights by conducting warrantless searches in his yard. The district court examined a

survey diagram of Jacob’s property showing that the “backyard is located immediately behind [the]

home and that the majority of the backyard is enclosed by wire and wood fencing.” (J.A. 23.) The

court concluded, therefore, that the backyard was part of the protected curtilage of Jacob’s house.

(Id.) The court ultimately denied Killian qualified immunity, because at the time of the alleged

searches, “it was clearly established that Fourth Amendment rights extend to the backyard and

‘curtilage’ area of the home.” (J.A. 35.)

       During the course of discovery, Jacob disclosed that he intended to pursue his Fourth

Amendment claim based on four separate incidents. The first was in September 1999 when Killian

is alleged to have entered Jacob’s property without a warrant to post a “stop work” order on a fence

Jacob had been constructing. (J.A. 412.)

       This first incident is not actionable, however, because it led directly to Jacob’s guilty plea

to misdemeanor blight charges. (J.A. 270-72.) Civil actions under § 1983 are inappropriate if their

success would necessarily undermine the validity of outstanding criminal judgments:

       [W]hen a [plaintiff] seeks damages in a § 1983 suit, the district court must consider
       whether a judgment in favor of the plaintiff would necessarily imply the invalidity

                                                -6-
       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.

Heck v. Humphrey, 512 U.S. 477, 487 (1994) (footnote omitted). Counsel for Jacob all but conceded

at oral argument that the September 1999 conduct cannot form the basis of a § 1983 claim, because

Jacob’s success would undermine his conviction and sentence. Thus, under Heck, the September

1999 search, upon which Jacob’s subsequent conviction was based, could not form the basis of a §

1983 claim, so long as Jacob’s conviction and sentence remain undisturbed. See Shamaeizadeh v.

Cunigan, 182 F.3d 391, 398-99 (6th Cir. 1999) (holding that, where an allegedly illegal search

produced evidence used to obtain a conviction, the convicted cannot bring a § 1983 claim

challenging the search until the conviction is overturned); Harvey v. Waldron, 210 F.3d 1008, 1015

(9th Cir. 2000) (“We believe that the Second and Sixth Circuits have taken the better approach and

therefore hold that a § 1983 action alleging illegal search and seizure of evidence upon which

criminal charges are based does not accrue until the criminal charges have been dismissed or the

conviction has been overturned.”). The district court erred to the extent it denied Killian qualified

immunity from allegations relating to this conduct.

       The remaining alleged incidents–all alleged to have occurred after Jacob’s incarceration–do

not run afoul of Heck. Thus, we must analyze Killian’s claim of qualified immunity as to those

remaining incidents.

       It is well established that the protections of the Fourth Amendment extend to the curtilage

of the home. United States v. Jenkins, 124 F.3d 768, 772 (6th Cir. 1997); see also Dow Chem. Co.

v. United States, 476 U.S. 227, 235 (1986). Conversely, there is no Fourth Amendment violation

                                                -7-
for warrantless searches of open fields. See Oliver v. United States, 466 U.S. 170, 177 (1984). “The

concept of curtilage, unfortunately, evades precise definition.” Jenkins, 124 F.3d at 772. To aid

courts in analyzing these cases, the Supreme Court in United States v. Dunn, 480 U.S. 294 (1987),

articulated four factors to consider:

       the proximity of the area claimed to be curtilage to the home, whether the area is
       included within an enclosure surrounding the home, the nature of the uses to which
       the area is put, and the steps taken by the resident to protect the area from
       observation by people passing by.

Id. at 301. The Court emphasized that these factors are useful only to the extent that they bear upon

“the centrally relevant consideration–whether the area in question is so intimately tied to the home

itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id.

       After the parties filed their briefs but before oral argument, this Court decided Widgren v.

Maple Grove Township, 429 F.3d 575 (6th Cir. 2005). In that case, we addressed a citizen’s

reasonable expectation of privacy when a municipal tax assessor enters the curtilage of the home.

We held under the facts of that case that “a property assessor does not conduct a Fourth Amendment

search by entering the curtilage for the tax purpose of naked-eye observations of the house’s plainly

visible exterior attributes and dimension–all without touching, entering, or looking into the house.”

Id. at 585-86.

       Here, Killian, a code enforcement officer, entered the curtilage of Jacob’s property to

investigate potential ordinance violations previously visible from outside the curtilage. At oral

argument, counsel for Jacob suggested that remand may be proper in light of Widgren. We agree.

Remand will give both parties an opportunity to brief the matter fully, and will allow the district

court to make relevant findings. Therefore, we vacate the judgment of the district court and remand

for further proceedings to determine the effect, if any, Widgren has on Killian’s claim of qualified

                                                -8-
immunity on claims based on incidents alleged to have occurred after Jacob’s October 1999

incarceration.

                                B. Procedural Due Process Claim

        Killian also argues that the district court erred in denying him qualified immunity from

Jacob’s procedural due process claim. The district court determined that Killian and the Township

attorney sought an arrest warrant and later arrested and incarcerated Jacob without first providing

him with notice or an opportunity to be heard. (J.A. 29.) The district court concluded that, because

it is well established that due process requires notice and an opportunity to be heard before an

individual may be deprived of a liberty interest, Killian was not entitled to qualified immunity. (J.A.

35.)

        Although the district court noted “this issue [was] not clearly articulated in [Jacob’s] brief”

(J.A. 29), nor listed in his complaint,5 Jacob incorporated by reference into Count I the allegations

of failed notice and an opportunity to be heard prior to his arrest. (J.A. 11.) Thus, Defendants had

“fair notice” of the claim under this Court’s liberal pleading standards. See Allard v. Weitzman (In

re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir. 1993).

        Turning to the merits, we conclude nonetheless that the district court erred in denying Killian

qualified immunity.

        First, Jacob was given notice and an opportunity to be heard. The arrest and incarceration

were part of the Township’s ongoing criminal case against Jacob for blight. In that case, the two

sides entered into a plea agreement. As part of the agreement, Jacob pleaded guilty to the alleged


        5
         In fact, Count I of the complaint , which alleges violations of Jacob’s procedural due process
rights, does not list the lack of notice prior to incarceration among the three alleged violations. (J.A.
11-12.)

                                                  -9-
ordinance violations. He also agreed to the immediate issuance of a thirty-day commitment order

that the judge was to sign fourteen days later. In exchange, the Township attorney agreed to have

the order set aside should Killian determine that Jacob had come into full compliance within

fourteen days. In other words, the only way Jacob would not have been jailed would have been a

finding by Killian that Jacob had cured his property of the blight. Both Jacob and the Township

attorney signed the agreement.

        It is clear, then, that in requesting that the prosecutor seek a commitment order, Killian was

merely performing his duties under Jacob’s signed plea agreement. Furthermore, Killian’s request

that the Township attorney seek a court order was surplusage. As the plea agreement clearly states,

the commitment order would have gone into effect even if Killian had simply stated that the blight

conditions had not been cured. Thus, Killian’s request had no effect on the decision to jail Jacob.

Therefore, no constitutional violation occurred, as the deprivation of liberty occurred pursuant to

a voluntary plea agreement.

        Second, Jacob admits not only that the state court gave him two days to appear in order to

explain himself (J.A. 408), but also that he had notice of this opportunity. In his deposition, Jacob

testified that he was in the hospital at the close of the fourteen days immediately following the entry

of his plea agreement and tried to notify the court of this fact. “I got the attending physician and

assistant to call the Township and . . . Judge Sefelli’s [sic] clerk - to notify them that I would not be

attending court the following day. . . . My wife called the court. . . . I was not in court on that date

and, subsequently, I was incarcerated.” (J.A. 248.) It seems, then, that Jacob knew at that time that

he had a hearing and that consequences for failing to appear would result. Therefore, no procedural

due process violation occurred.


                                                  -10-
       Finally, Killian was not personally involved in the alleged actions. To succeed in under §

1983, a plaintiff must show personal involvement by the defendant in the constitutional violation.

Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995) (per curiam). Jacob has shown only that

Killian requested that the Township attorney seek a court order for Jacob’s arrest based on Jacob’s

failure to comply with the terms of a plea agreement. The attorney, in turn, requested that the court

sign the commitment order. Five days later, the court issued a bench warrant for Jacob’s arrest and

commitment. (J.A. 279.) The order of the state court, then, was the ultimate cause of Jacob’s

incarceration. This was two steps removed from Killian’s involvement.

       Aside from that, Jacob has not shown that Killian sought to have Jacob incarcerated without

adequate notice and opportunity to be heard. Killian merely requested that the Township attorney

seek an order. Killian had no direct authority to seek or issue a commitment order. Killian has

presented evidence that only the Township attorney had the authority to prosecute. (J.A. 456.)

Jacob has not brought forth evidence to the contrary. Moreover, only the state court had the

authority to issue the commitment order and to determine under what procedural conditions to do

so. Killian, then, could not have affected the process Jacob received prior to being jailed. Thus, to

the extent a constitutional violation occurred, the state court or prosecutor was at fault.

       In any event, Heck again precludes Jacob’s § 1983 claim. If Jacob were to succeed on the

merits (i.e., prove that he was incarcerated without due process), the judgment would necessarily

imply the invalidity of his sentence. See Shamaeizadeh, 182 F.3d at 396 n.2 (“Proof of illegality of

the conviction is a necessary element of a § 1983 cause of action . . . when . . . the § 1983 plaintiff

seeks damages for an allegedly unconstitutional conviction or imprisonment.”). Therefore, a court

may not consider this claim unless and until the sentence or conviction is overturned. See Heck, 512


                                                 -11-
U.S. at 486-87.

                                      III. CONCLUSION

       For the foregoing reasons, we REVERSE the judgment of the district court and GRANT

Killian qualified immunity on Killian’s Fourth Amendment claim based on conduct occurring before

or contemporaneously with Jacob’s October 1999 conviction and sentence. We VACATE the

judgment of the district court as to the remaining conduct alleged to have violated Jacob’s Fourth

Amendment rights and REMAND for further proceedings consistent with Widgren v. Maple Grove

Township, 429 F.3d 575 (6th Cir. 2005), and this opinion. Finally, we REVERSE the judgment of

the district court and GRANT Killian qualified immunity on Killian’s procedural due process claim.




                                              -12-
