Cooper v. Parrish

2 Cooper, et al. v. Parrish, et al. No. 98-6324

No. 98-6324 Cooper,

RECOMMENDED FOR FUL

Pursuant to Sixth C

ELECTRONIC CITATION: 2000

File Name: 00

UNITED STATES CO

FOR THE SIXT

__________

STEVEN CRAIG COOPER et al.,

Plaintiffs-Appellants,

v.

LARRY E. PARRISH et al.,

Defendants-Appellees.

Appeal from the United

for the Western District of

Nos. 97-02625; 97-02626

District J

Argued: Septem

Decided and Filed:

Before: RYAN, MOORE, and

*

The Honorable John R. Gibson,

Court of Appeals for the Eighth Circu

1

4 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

_________________ proceedings, then Cooper woul

opportunity to raise his const

COUNSEL nuisance statute. Therefore, we

on remand determine whether

ARGUED: John E. Herbison, Nashville, Tennessee, for Gibbons included the nuisance

Appellants. David Wade, MARTIN, TATE, MORROW & proceedings, assuming that ther

MARSTON, Memphis, Tennessee, for Appellees. pending when Cooper filed hi

ON BRIEF: John E. Herbison, Nashville, Tennessee, Robert district court determines on re

S. Catz, Nashville, Tennessee, for Appellants. David Wade, General Gibbons did not includ

MARTIN, TATE, MORROW & MARSTON, Memphis, state criminal proceedings, the

Tennessee, David E. Caywood, CAUSEY, CAYWOOD, address the merits of Cooper’s r

TAYLOR, McMANUS & BAILEY, Memphis, Tennessee,

Mary M. Bers, Heather C. Ross, OFFICE OF THE III. CONC

ATTORNEY GENERAL, Nashville, Tennessee, Larry E.

Parrish, LAW OFFICES OF LARRY PARRISH, Memphis, For the reasons stated above

Tennessee, Robert L. Hutton, GLANKLER BROWN, PLLC, court’s dismissal of the federal c

Memphis, Tennessee, for Appellees. Alissandratos, Pierotti, Weiric

Simmons. We REVERSE the

_________________ the claims against Parrish and R

him to the district court for fu

OPINION with this opinion. We also RE

_________________ dismissal of the state law claim

and REMAND these claims to

KAREN NELSON MOORE, Circuit Judge. This case proceedings consistent with t

allegedly involves an attempt on the part of a state court VACATE the district court’s

chancellor, three state prosecutors, two state investigators, claims for injunctive relief on

and a private attorney to shut down several nightclubs that and REMAND those claims to

feature nude dancing in Memphis, Tennessee. Plaintiffs proceedings consistent with this

appeal the district court’s decision to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6) their 42 U.S.C.

§ 1983 and related state law claims against all defendants on

absolute immunity grounds. Plaintiffs also appeal the district

court’s decision to invoke Younger abstention and dismiss

without prejudice their request for prospective injunctive

relief.

Plaintiffs allege that the defendants violated their First

Amendment, Fourth Amendment, and Fourteenth

Amendment procedural and substantive due process rights.

They allege that the chancellor violated their constitutional

rights when he gave the prosecutors ex parte legal advice.

28 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

district court’s conclusion that these proceedings would likely Plaintiffs allege that the prosecu

involve important state interests. As the district court in this violated their constitutional righ

case pointed out, the state has an important interest in parte communications with t

“exposing and prohibiting promotions of prostitution, illegal nuisance and civil forfeiture co

obscene live performances, acts that contribute to the restraining orders, executed the

delinquency of minors, as well as distributions and case of one of the prosecutors

importations of obscene material.” Cooper, 20 F. Supp. 2d at allegations in the complaints.

1211. Because Cooper was indicted pursuant to statutes that the two state investigators viola

are meant to protect public health and safety, see, e.g., DLS, when they executed the restrain

Inc. v. City of Chattanooga, 107 F.3d 403, 410-11 (6th Cir.

1997) (explaining that city ordinance prohibiting entertainers For the reasons stated below

in adult establishments from coming within six feet of court’s dismissal of the claim

customers did not violate First Amendment because ordinance three state prosecutors, and the t

furthered important state interests in prevention of crime and case. The district court, howev

disease), the second Younger requirement would be satisfied claims against Larry Parrish b

by pending state prosecutions. receive absolute or qualified

REVERSE the district court’s d

The third requirement for Younger abstention is that there Parrish and REMAND the claim

be “an adequate opportunity in the state proceedings to raise court for further proceedings con

constitutional challenges.” Fieger v. Thomas, 74 F.3d 740, also REVERSE the district cou

745 (6th Cir. 1996) (quoting Middlesex County Ethics Comm. claims against all the defendants

v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)). In the to the district court for further

present case, this requirement would be satisfied only if this opinion. Finally, we VA

District Attorney General Gibbons included the nuisance dismissal of the plaintiffs’ cla

charges against Cooper in the criminal proceedings that were Younger abstention grounds and

pending in state court, assuming that criminal proceedings the district court for further pro

were in fact pending when Cooper filed his federal complaint. opinion.

Indeed, if state criminal proceedings involving the nuisance

charges were pending at the time Cooper filed his federal I. BACKG

complaint, then Cooper could have raised his constitutional

claims in these proceedings. See Tennessee v. Draper, 800 Plaintiffs set forth their claim

S.W.2d 489, 497 (Tenn.Crim.App. 1990) (“Our courts have two separate complaints, which

held that constitutional issues may be raised and considered district court consolidated on A

at any stage of the proceedings.”) (footnote omitted); Veach purposes, we must accept

v. Tennessee, 491 S.W.2d 81, 83 (Tenn. 1973) (explaining nonconclusory allegations conta

that a constitutional question may be raised at any time in a Buckley v. Fitzsimmons, 509 U.

criminal proceeding even though appellate courts generally

only review questions presented for determination in the trial Plaintiffs allege that as early

court). However, if District Attorney General Gibbons did Parrish, a private attorney pract

not include the nuisance charges in the state criminal John Pierotti, who at the time

General for the Thirtieth Judi

6 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

agreed to investigate certain nightclubs in the Memphis area. (6th Cir. 1997). The Younger a

District Attorney General Pierotti subsequently directed Amy federal court to abstain from en

Weirich and Jennifer Nichols, two of his assistant district proceeding “when the state’s i

attorneys, to work on the case. On July 7, 1996, Larry Parrish exercising federal jurisdiction

and the three prosecutors from the district attorney general’s between federal and state courts

office met with D.J. Alissandratos, Chancellor for the have noted that abstention i

Thirtieth Judicial District of Tennessee. This was the first of satisfaction of three elements.

several meetings in which Chancellor Alissandratos allegedly abstain when (1) state proceedin

gave Parrish and the three prosecutors “ex parte legal advice proceedings involve an importa

as to how the pleadings and/or supporting documentation in state proceedings will afford

such lawsuits [involving the nightclubs] should be drafted so opportunity to raise his constitu

as to ensure issuance of ex parte orders to close the Plaintiffs’

nightclubs or showbars.” Joint Appendix (“J.A.”) at 495 The first element for Younge

(Cooper Am. Compl. ¶ 30). state court proceeding was pen

federal complaint. Zalman v. A

On July 11, 1996, Assistant District Attorneys Weirich and (6th Cir. 1986). Cooper a

Nichols, along with Larry Parrish, who earlier that day had proceedings were pending in

been sworn in as a “Special” Assistant District Attorney, filed federal complaint on July 11, 1

several complaints in Shelby County Chancery Court in District Attorney General Gibbo

which they alleged that nightclubs in the Memphis area nuisance action before Cooper

should be shut down because they were in violation of District Attorney General Gibb

Tennessee’s public nuisance statute. Although District criminal proceedings involving t

Attorney General Pierotti was not listed as counsel in the charges were still pending again

complaints, as relator he did vouch for the truth of the factual federal complaint. There is i

allegations contained in the complaints. record, however, to determine

requirement has been met.3 Th

Once Parrish and the other prosecutors had filed the the case to the district court so t

complaints, they asked Chancellor Alissandratos to issue criminal proceedings were actu

several temporary restraining orders pursuant to TENN. CODE when he filed his federal compl

ANN. § 29-3-105 (Michie 1999). The temporary restraining

orders purported to authorize Mark Glankler, an investigator If there were state criminal

in the district attorney general’s office, and John Simmons, an Cooper filed his federal compl

agent of the Tennessee Bureau of Investigation, to enter and

seize eight of the nightclubs that featured nude dancing in

Memphis. On the night of July 11, 1996, at approximately 3

6:00 p.m., officers entered each of the eight nightclubs and There is no evidence that we can

announced that the club was being seized. The employees indictments that a grand jury returned

1996 – that suggests that criminal p

and customers inside the nightclubs were detained by law Cooper when he filed his federal com

enforcement officers for periods of time ranging from one to these indictments could have been d

five hours. The officers required the club occupants to federal complaint, we cannot

Younger requirement has been met.

26 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

principles if it had the opportunity to address the state law produce identification, which w

claims in this case. However, there may be certain nuances in These individuals were then ser

the Tennessee common law immunity doctrine that Tennessee them to report to the district a

courts have yet to address. Thus, we suggest that on remand provide sworn statements.

the district court consider whether it should decline to

exercise its supplemental jurisdiction over the state law Law enforcement officers als

claims in this case pursuant to 28 U.S.C. § 1367(c)(1). If the of Southern Entertainment

district court on remand chooses to exercise its supplemental company that conducted various

jurisdiction, it will need to determine what immunities (if three of the nightclubs. The eigh

any) under Tennessee law pertain to the various state law Management Business offices

claims. custody of the district attorney

days; thus, the owners did n

D. Younger Abstention respective properties until the re

The Cooper plaintiffs also sued William Gibbons, the On December 10, 1996, the Sh

current District Attorney General in Shelby County, in an general’s office obtained crimin

attempt to obtain a prospective injunction that would prevent jury that charged Steven Coop

Gibbons, or any person acting in concert with him, from ever nightclubs, with presenting o

pursuing an action that has the effect of inhibiting Cooper’s promoting prostitution, public i

businesses without giving him prior notice and an opportunity distributing obscene material.

to be heard. Cooper specifically seeks: action against Cooper and other

federal court but ultimately rem

[P]reliminary and permanent injunctions prohibiting the Court of Shelby County. On

Defendants Gibbons, Parrish, Weirich and Nichols, their Gibbons, who had replaced Pie

agents, servants, employees and all person[s] acting in General for the Thirtieth Distri

concert with these Defendants, from proceeding in any nonsuited the civil public nu

court to procure any form of process related to the dismissed without prejudice.

Plaintiffs’ businesses which would have the effect of notified the Criminal Court of S

inhibiting the Plaintiffs’ exercise of constitutional rights raised in the civil nuisance actio

or interfering with operation of the Plaintiffs’ criminal case that at the time wa

business(es) without giving the Plaintiffs and their

attorney(s) notice and an opportunity to be heard prior to On July 11, 1997, the plaintiff

the issuance of such process. separate complaints in federal di

consolidated the two cases – Co

J.A. at 508 (Cooper Am. Compl. ¶ 85). The district court v. Parrish – on August 27, 1997.

abstained pursuant to Younger v. Harris, 401 U.S. 37 (1971), his businesses brought a 42 U.S.

and dismissed without prejudice Cooper’s claim for Defendants Alissandratos, Parris

injunctive relief. Cooper, 20 F. Supp. 2d at 1211. Glankler, and Simmons were

capacities for the roles these de

We review a district court’s decision to invoke Younger public nuisance suit and seizing

abstention de novo. Hayse v. Wethington, 110 F.3d 18, 20

8 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

that these defendants violated his First Amendment, Fourth Parrish was not performing any u

Amendment, and Fourteenth Amendment procedural and when he allegedly engaged in th

substantive due process rights, and he alleged that these issue in this case; thus, no pub

defendants had engaged in a civil conspiracy under Tennessee impaired if he is forced to resol

common law, had conspired to injure his business under merits. Because Parrish was no

Tennessee common law, and had engaged in an abuse of state when he participated in th

process. Finally, Cooper asked the district court permanently legal action against the nig

to enjoin William Gibbons, the current district attorney circumstances in this case do

general in Shelby County, from interfering with his businesses concerns that underlie the qualif

without giving him prior notice and an opportunity to be not eligible to assert a qualified i

heard. J.A. at 508 (Cooper Am. Compl. ¶ 85).

C. Immunity for

Plaintiff Amanda Holland, who was an employee at one of

the nightclubs, also brought a § 1983 suit against Parrish, The Cooper plaintiffs have als

Pierotti, Glankler, Simmons, and various unnamed law engaged in a civil conspiracy un

enforcement officers. Plaintiffs named in the Holland conspired to injure Cooper’s

complaint also included employees and a delivery person who common law, and engaged in

was detained by law enforcement officers on the night of the district court dismissed the

raid. Holland alleged the same four constitutional violations explicitly on these state law cl

listed in Cooper’s amended complaint, and she asked the courts appear to incorporate t

district court to certify her case as a plaintiff class action doctrine used by federal courts

pursuant to Federal Rules of Civil Procedure 23(a) and Shell v. Tennessee, 893 S.W.2d

23(b)(1), (2), and/or (3). Willett v. Ford, 603 S.W.2d

1979), we believe that the ex

Chancellor Alissandratos eventually filed a motion to common law immunity doctrin

dismiss all of the claims against him in the Cooper complaint issues of state law that Tenness

pursuant to Federal Rule of Civil Procedure 12(b)(6) on fully.

various grounds including that he was entitled to absolute

judicial immunity. Parrish, Pierotti, Weirich, Nichols, In Shell, the Tennessee Supr

Glankler, and Simmons also moved to dismiss the claims precedent in § 1983 cases to dete

against them pursuant to Rule 12(b)(6) on absolute and state law claims against an assist

qualified immunity grounds. On May 5, 1998, the district dismissed on absolute immunity

court dismissed the claims against Chancellor Alissandratos, at 422-23. The court cited Buck

J.A. at 627 (Dist. Ct. Order), and on August 26, 1998, the 259 (1993), and Burns v. Reed

district court dismissed the claims against the other explained that these cases “ar

defendants. Cooper v. Parrish, 20 F. Supp. 2d 1204 (W.D. claims] because § 1983 inco

Tenn. 1998). Plaintiffs now appeal the district court’s immunities historically granted

dismissal of their claims. Shell, 893 S.W.2d at 422 n.6. B

in Shell, we believe that the

generally would apply federa

24 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

circumstances. Cullinan v. Abramson, 128 F.3d 301, 310 (6th II. ANAL

Cir. 1997), cert. denied, --- U.S. ---, 118 S. Ct. 1560 (1998).

In Cullinan, we held that a law firm that had been hired by the We review de novo a dismissa

City of Louisville to serve as outside counsel was entitled to Civil Procedure 12(b)(6) for fa

qualified immunity against § 1983 claims. Id. The court which relief can be granted, con

relied exclusively on a statement made by the Supreme Court light most favorable to the plain

in Richardson v. McKnight, 521 U.S. 399, 407 (1997), which well-pleaded factual allegati

noted in dictum that “the common law ‘did provide a kind of Resources, Inc. v. Tatum, 58 F.3

immunity for certain private defendants, such as doctors or cert. denied, 516 U.S. 1158

lawyers who performed services at the behest of the appropriate unless it appears bey

sovereign.’” Id. at 310 (second emphasis added). This prove no set of facts in suppor

statement, along with the fact that the panel saw “no good them to relief. Conley v. Gibso

reason to hold the city’s in-house counsel eligible for

qualified immunity and not the city’s outside counsel,” led the A. Absolute Immunity

panel to conclude that the private attorneys in that case could

successfully assert a qualified immunity defense. Id. The district court dismissed th

the defendants who had been

Even if we assume that the Supreme Court in Richardson capacities on grounds that these

intended to extend the qualified immunity doctrine to absolute immunity. The Sup

“doctors or lawyers who performed services at the behest of “functional approach” to deter

the sovereign,” Richardson, 521 U.S. at 407, Parrish still is entitled to absolute immunity. B

not entitled to qualified immunity because the circumstances approach looks to “the nature of

in this case are not analogous to those in Cullinan. For the identity of the actor who

instance, the court in Cullinan pointed out that there was no Forrester v. White, 484 U.S. 219

doubt that the private attorneys in that case were acting at the also explained that officials who

behest of the city. As the court explained, “[t]he city retained defense bear the burden of demo

outside legal counsel for the defense of the lawsuit, entering to absolute immunity given t

into a professional service agreement with [the law firm].” performed. Burns v. Reed, 500

Cullinan, 128 F.3d at 305-06. In the present case, by contrast,

there is little – if any – evidence that shows that Parrish was 1. Absolute Judicial Immunit

acting at the behest of the state when he helped the

prosecutors pursue legal action against the nightclubs. In fact, Plaintiffs argue that Chancello

Parrish acknowledges in his brief that he was not paid by the to absolute immunity because

district attorney general’s office for his legal services. conduct and acted as a de fa

Parrish’s Br. at 16. prosecutors “ex parte legal adv

and/or supporting documentatio

Furthermore, we believe that extending qualified immunity the nightclubs] should be drafte

to a private attorney who works alongside prosecutors in an ex parte orders to close th

unofficial capacity would be inconsistent with the goals and showbars.” J.A. at 495 (Cooper

objectives that underlie the qualified immunity doctrine. officers generally are absolutely

monetary damages under § 198

10 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

Mireles v. Waco, 502 U.S. 9, 9-10 (1991). The rationale for Pierotti’s conduct without ex

granting judicial officers absolute immunity when they act in violated their constitutional rig

their judicial capacities is that judicial officers should be free these pleadings was sworn on

to make controversial decisions and act upon their convictions Pierotti, who vouched for the t

without fear of personal liability. Stump v. Sparkman, 435 pleadings.” J.A. at 496 (Coop

U.S. 349, 355-56 (1978). plaintiffs have failed to show ho

to the truth of the allegations in t

There are two situations, however, in which judicial nuisance complaints deprived th

officers are not absolutely immune from potential liability. Fourth Amendment, or Fourteen

“First, a judge is not immune from liability for nonjudicial the district court should have dis

actions, i.e., actions not taken in the judge’s judicial capacity. against District Attorney Gen

Second, a judge is not immune for actions, though judicial in immunity grounds.

nature, taken in the complete absence of all jurisdiction.”

Mireles, 502 U.S. at 11-12 (emphasis in original) (citations 2. Qualified Immunity for Pa

omitted); see also Ireland v. Tunis, 113 F.3d 1435, 1440 (6th

Cir.), cert. denied, --- U.S. ---, 118 S. Ct. 560 (1997). We Plaintiffs argue that Larry Parr

therefore must consider whether Chancellor Alissandratos’s a qualified immunity defense be

actions were taken in his judicial capacity and whether his public official when he a

actions were taken in the complete absence of all jurisdiction. unconstitutional conduct at issu

have concluded that Parrish was

The Supreme Court has explained that courts should focus when he assisted the prosecutor

on the “nature” and “function” of an act, and not the act itself, to absolute immunity, we still m

when deciding whether certain actions were taken in a judge’s successfully assert a qualified im

judicial capacity. Mireles, 502 U.S. at 13 (quoting Stump,

435 U.S. at 362). This functional approach typically turns on Private litigants generally a

two factors. First, a court must determine whether an act is qualified immunity from suit u

related to those general functions that are normally performed 504 U.S. 158, 168-69 (1992); s

by a judicial officer. Stump, 435 U.S. at 362. Second, a court F.3d at 698-99; Duncan v. Peck,

must assess whether the parties expected to deal with the Cir. 1988). However, we hav

judicial officer in the officer’s judicial capacity. Id. Plaintiffs private attorneys who work pursu

in the present case argue that Chancellor Alissandratos’s ex are eligible to receive qualified

parte contact with the district attorney general’s office and his

legal advice regarding ways that the prosecutors could

improve their complaints are prosecutorial in nature and 2

If a private party has conspire

therefore are not related to those general functions that are constitutional rights, then that party qu

normally performed by a chancellor. held liable pursuant to § 1983 – eve

eligible to assert a qualified immunity

In Barnes v. Winchell, 105 F.3d 1111, 1115-22 (6th Cir. 158, 168-69 (1992); see also Vector Re

who is not a public official may be lia

1997), we had the opportunity to address what constitutes a and yet not be entitled to qualified i

prosecutorial as opposed to a judicial act in the absolute official, the reason for affording quali

22 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

at 1154. “If the answer is yes, then the second step is to immunity context. We determ

determine whether the right is so ‘clearly established’ that a judge had acted within his judi

‘reasonable official’ would understand that what he is doing allegedly had directed two indiv

violates that right.” Brennan, 78 F.3d at 1154 (quoting criminal complaint and had help

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). of the complaints. Although th

been improper under state la

1. Qualified Immunity for Pierotti “absolute judicial immunity e

exercising his or her authority,

Plaintiffs argue that District Attorney General Pierotti errors.’” Id. at 1120 (quoting

violated their First Amendment and Fourth Amendment Because the parties independent

rights, as well as their Fourteenth Amendment procedural and judge, and because the imprope

substantive due process rights, when he vouched for the truth general judicial functions that a

of the allegations in the civil forfeiture and public nuisance presiding over a criminal case,

complaints. A civil rights plaintiff, however, cannot simply was acting in his judicial cap

assert a constitutional violation and rely on broadly stated criminal charges and helped t

general rights if that plaintiff hopes to overcome a motion to criminal complaint. Id. at 1121

dismiss on qualified immunity grounds. Garvie v. Jackson,

845 F.2d 647, 650 (6th Cir. 1988). Instead, the plaintiff must Like the municipal judg

show some sort of connection between the defendant’s Alissandratos was acting in hi

conduct and the alleged constitutional violations. See engaged in ex parte contact with

Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). Indeed, prosecutors legal advice regar

we have explained that plaintiffs must allege sufficient facts improve their case. As Chancel

that demonstrate that their constitutional rights have been out, Tennessee Rule of Civil Pro

violated in those instances where a defendant has asserted a judicial officer to issue a res

qualified immunity defense. Cameron v. Seitz, 38 F.3d 264, commencement of legal action

273 n. 2 (6th Cir. 1994); Dominque v. Telb, 831 F.2d 673, 676 party. Moreover, Rule 65.03(2)

(6th Cir. 1987). Although a district court should give order may be granted only by a ju

plaintiffs an opportunity to amend a complaint once a action is pending or is to be

qualified immunity defense is raised, plaintiffs cannot Alissandratos is a judge of the

overcome a motion to dismiss on qualified immunity grounds nuisance action against the night

unless they allege facts necessary to show that a defendant has was acting within his judicial au

violated their constitutional rights. Cameron, 38 F.3d at 273 prosecutors from the district atto

n.2. purpose of deciding whethe

restraining orders.

In this case, plaintiffs have failed to include factual

allegations in their amended complaints that show that Furthermore, even though

Pierotti violated their constitutional rights. Although the participation in ex parte commun

district court gave the plaintiffs an opportunity to amend their in which he allegedly discussed

original complaints after the defendants asserted a qualified lawsuits may have been improp

immunity defense, the plaintiffs continued simply to describe TENN. SUP. CT. R. 10, Cannon 3.

12 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

a judge shall not engage in ex parte communications with one been properly appointed to act o

of the parties unless “the judge reasonably believes that no court explained:

party will gain a procedural or tactical advantage as a result of

the ex parte communication”), these communications were We find no statutory authori

nonetheless related to his general judicial functions, which District Attorney General to i

include the authority to issue an ex parte restraining order to act on behalf of the state fro

prior to the commencement of a lawsuit. TENN. R. CIV. P. took an oath of office in July

65.03. Indeed, even if we assume that Alissandratos statutory authority authorizi

committed “grave procedural errors” when he gave the ex General to formally appoint

parte legal advice, he still was acting within his judicial ‘Special Assistant Distric

capacity because his conduct is related to those general understanding that Parrish w

judicial functions that a chancellor would normally perform. from private sources.

See Barnes, 105 F.3d at 1120.

Id. at *4. Furthermore, the cour

We also must consider whether Chancellor Alissandratos’s never properly appointed by

actions were taken in the complete absence of all jurisdiction. counsel to the District Atto

Stump, 435 U.S. at 362. The Supreme Court has instructed Tennessee Code Annotated § 8

that “[a] judge will not be deprived of immunity because the used to compensate Parrish – he

action he took was in error, was done maliciously, or was in by a private non-profit orga

excess of his authority; rather, he will be subject to liability enforcement efforts in oppositio

only when he has acted in the ‘clear absence of all appointment. Id.

jurisdiction.’” Id. at 356-57 (quoting Bradley v. Fisher, 80

U.S. (13 Wall.) 335, 351 (1871)) (footnote omitted). We We agree with the Tennesse

have interpreted this language to mean that there is sufficient District Attorney General Piero

jurisdiction for immunity purposes where a court has some statutory authority when he app

subject matter jurisdiction over the underlying legal actions. “Special” Assistant District A

Barnes, 105 F.3d at 1122; see also Ireland, 113 F.3d at 1441 Because Parrish does not qualify

(“If the matter upon which the judge acts is clearly outside the entitled to absolute prosecutoria

subject matter jurisdiction of the court over which the judge the district court erred when it di

presides, the act is done in the clear absence of all against him on absolute immun

jurisdiction.”).

B. Qualified Immunity

In this case, Chancellor Alissandratos had subject matter

jurisdiction over the public nuisance action that the district Defendants Pierotti and Parr

attorney general ultimately brought against the nightclubs. entitled to qualified immunity.

TENN. CODE ANN. § 29-3-102 (1998) (“[J]urisdiction is test for determining whether pu

hereby conferred upon the chancery, circuit, and criminal qualified immunity. Brennan v

courts to abate the public nuisances defined in [Tennessee F.3d 1152, 1154 (6th Cir. 1996

Code Annotated] § 29-3-101, upon petition in the name of the whether plaintiffs have alle

state, upon relation of the attorney general, or any district constitutionally protected right a

v. Lewis, 118 S. Ct. 1708, 1714 n

20 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

to cover the detention of the customers at the nightclubs and attorney general.”); see also TE

the seizure of the Southern Entertainment Management (stating that a chancellor has

Company. Glankler and Simmons therefore did not engage temporary writ of injunction, e

in conduct that exceeded the scope of the temporary further continuance of such nui

restraining orders, and they are entitled to absolute immunity building or place wherein the s

for the role they played in the execution of the restraining even though Chancellor Alissa

orders. excess of his authority when he m

the district attorney general’s o

4. Absolute Immunity for Parrish legal advice, his actions for judi

not taken in clear absence of all

Plaintiffs also argue that the district court improperly

dismissed their claims against Larry Parrish, a private attorney Because the factual allegati

licensed to practice in Tennessee who was informally sworn situation where Chancellor Ali

in as a “Special” Assistant District Attorney on July 11, 1996, judicial capacity and within the

because Parrish was not acting as an official government jurisdiction, he is absolutely imm

officer and therefore is not entitled to absolute immunity. violated the plaintiffs’ constituti

Private attorneys who allegedly engage in unconstitutional in meetings with the prosecuto

conduct while acting under color of state law are not entitled court properly dismissed these

to immunity. See Vector Research, Inc. v. Howard & Howard plaintiffs have failed to state

Attorneys P.C., 76 F.3d 692, 699 (6th Cir. 1996) (denying Alissandratos upon which relief

private attorneys qualified immunity in § 1983 action). Thus,

Parrish is not entitled to absolute immunity unless he can 2. Absolute Prosecutorial Imm

show that he was acting as a public official when he allegedly

engaged in the unconstitutional conduct. See id. District Attorney General Pi

Attorneys Weirich and Nichols

We conclude that Parrish was not acting as a public official properly granted their Rule 1

when he allegedly engaged in the conduct at issue in this case because they are entitled to abso

because he was never properly appointed to serve as an Absolute prosecutorial immun

assistant district attorney. See Tennessee v. Culbreath, 1999 immunity, is a common law prin

WL 134685, *1-2 (March 9, 1999 Tenn.Crim.App.), cert. from § 1983 liability. Imbler

granted, Sept. 13, 1999 (Tenn.). In Culbreath, a case that 430-31 (1976). The Suprem

involves the prostitution and obscenity charges that have been1 “functional” approach for determ

brought against several of the plaintiffs in the present case, entitled to absolute prosecutoria

the Tennessee Court of Criminal Appeals disqualified Parrish court should look to “the natur

from serving as a prosecutor on grounds that he had never not the identity of the actor wh

484 U.S. at 229; see also Irelan

1 This functional approach

We cite Cullbreath simply as an authority on Tennessee law. Thus, prosecutor’s activities are “int

we need not and do not consider whether Parrish is precluded from

arguing that he was properly appointed to serve as a “Special” Assistant judicial phase of the criminal p

District Attorney after the decision in the Cullbreath case. 430. Those acts that occur in th

14 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

role as an advocate for the state, e.g., acts taken to prepare for district attorney general swear

the initiation of judicial proceedings or to prepare for trial, are contained in a complaint. Pie

protected by absolute immunity. Buckley, 509 U.S. at 273; professional judgment as a pros

see also Ireland, 113 F.3d at 1444-45. By contrast, a the truth of allegations in th

prosecutor who “performs the investigative functions performed “an act that any com

normally performed by a detective or police officer” such as performed.” Kalina, 118 S. Ct. a

“searching for the clues and corroboration that might give him Court has specifically held that “

probable cause to recommend that a suspect be arrested” is function of the witness, not of

entitled only at most to qualified immunity. Buckley, 509 acting as an advocate when h

U.S. at 273. allegations in the public nu

complaints, and he therefore i

Plaintiffs argue that the prosecutors in this case are not immunity for this conduct. Id. a

entitled to absolute immunity because they were pursuing a

civil action when they prepared and filed the public nuisance 3. Absolute Immunity for Inv

and civil forfeiture complaints. Although the Supreme Court

has yet to address directly whether prosecutors are entitled to Plaintiffs also argue that th

absolute immunity when they act as advocates in the course dismissed their claims against M

of a civil rather than a criminal action, several other courts of in the district attorney general’s o

appeals have determined that prosecutors are protected by agent of the Tennessee Bureau

absolute immunity “when their duties are functionally immunity grounds. In their com

analogous to those of a prosecutor’s, regardless of whether “Glankler and Simmons particip

those duties are performed in the course of a civil or criminal occupation of the Plaintiffs’

action.” Schrob v. Catterson, 948 F.2d 1402, 1411 (3rd Cir. supervised law enforcement

1991); see also Mendenhall v. Goldsmith, 59 F.3d 685, 691 challenged seizures.” J.A. at 49

(7th Cir.) (explaining that the fact that “the alleged

misconduct here arose in the context of a civil proceeding Law enforcement officers are

with a law enforcement purpose does not render absolute as long as they are able to show

immunity inappropriate. The essential inquiry is whether [the quasi-judicial function. Bush, 38

prosecutor] was functioning in an enforcement role analogous immunity extends to those pe

to that of a prosecutor.”) (citations and footnote omitted)), integral or intertwined with th

cert. denied, 516 U.S. 1011 (1995). We agree that the persons are considered an arm o

prosecutors in this case may still be absolutely immune even immune.” Id. Law enforcem

though the alleged constitutional violations occurred when the absolute quasi-judicial immunit

officials were pursuing a civil action. Indeed, as long as the valid court order. Id. at 847-48

prosecutors were functioning in an enforcement role and

acting as advocates for the state in initiating and prosecuting Glankler and Simmons have

judicial proceedings, they are entitled to an absolute immunity pursuant to the temporary res

defense. detained those customers who

seized property that was not

temporary restraining orders.

language in the temporary restra

18 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

temporary restraining orders authorize law enforcement Plaintiffs argue that the pros

officials to restrain any person who could devalue, remove, or they were functioning as advo

diminish the property – a category that could reasonably entitled to absolute immunity wh

include those customers who were at the nightclubs on the parte communications with Ch

night of the raid – but they also authorize these officials to prepared and decided to file th

seize property that is in any way connected to the operation of forfeiture complaints; (3) soug

the nightclubs – a category that certainly includes the orders; (4) participated in the

Southern Entertainment Management Company. Thus, the nightclubs; and (5) in the case

prosecutors did not engage in conduct that exceeded the scope Pierotti, decided to vouch for the

of the temporary restraining orders, and they are entitled to complaints.

absolute quasi-judicial immunity for their participation in the

seizure of property and detention of persons at the nightclubs. The challenge to the prosecut

communications with Chance

Finally, we must determine whether District Attorney disposed of. In their complaint,

General Pierotti is absolutely immune for swearing to the Weirich, and Nichols met with A

truth of the factual allegations in the public nuisance and civil of privately (and unethicall

forfeiture complaints. Plaintiffs allege that “[e]ach of these communications regarding law

pleadings was sworn on the oath of the Defendant Pierotti, later related to nightclubs or sho

who vouched for the truth of the averments of the pleadings.” nude expressive dancing.” J.A.

J.A. at 496 (Cooper Am. Compl. ¶ 34). The allegations in the ¶ 28) (second emphasis added).

present case are directly analogous to allegations made in the prosecutors were performing

Kalina v. Fletcher, --- U.S. ---, 118 S. Ct. 502, 509 (1997), a that are normally performed by

case in which the Supreme Court held that a prosecutor who when they engaged in the ex

vouched for the truth of the contents of a criminal complaint Chancellor Alissandratos. Inst

in order to obtain an arrest warrant was only entitled to assert when construed in the light mo

qualified immunity. See also Ireland, 113 F.3d at 1447-48 simply describe a situation w

(holding that a prosecutor or investigator who vouches for advocates were meeting with

truth of allegations in a complaint was not entitled to absolute discuss the public nuisance laws

immunity). orders that they had decided to p

Pierotti attempts to distinguish Kalina by pointing to the Several of the other allegatio

Court’s statement that “neither federal nor state law made it are similar to allegations made i

necessary for the prosecutor [in Kalina] to make that 45, a case in which we held

certification [in which she swore to the truth of the allegations entitled to absolute prosecutoria

in a complaint].” Kalina, 118 S. Ct. at 509. Pierotti argues deciding to file a criminal co

that he is entitled to absolute immunity because Tennessee warrant, and presenting the char

Code Annotated § 29-3-102 specifically authorizes a district Ireland, the plaintiff had failed

attorney general, as well as various other officials or ten or part of the prosecutors that

more citizens, to bring a public nuisance suit on relation for “investigative activities unde

the state. Section 29-3-102 does not, however, require that a [prosecutors’] decision to file cr

16 Cooper, et al. v. Parrish, et al. No. 98-6324 No. 98-6324 Cooper,

We held that the prosecutors were entitled to absolute ¶ 40). Plaintiffs also allege tha

immunity notwithstanding the political motives that allegedly each nightclub . . . resulted di

led the prosecutors to pursue the criminal charges because direction and control of the Defe

“[a] prosecutor’s decision to file a criminal complaint and J.A. at 499 (Cooper Am. Compl

seek an arrest warrant and the presentation of these materials official is entitled to absolute q

to a judicial officer fall squarely within the aegis of absolute that official acts pursuant to a v

prosecutorial immunity.” Id. at 1446. act of “enforcing or executing

associated with a judicial proce

Like the prosecutors in Ireland, the prosecutors in the F.3d 842, 847 (6th Cir. 1994) (c

present case are entitled to absolute immunity for their in this case therefore cannot su

decision to file the public nuisance and civil forfeiture the seizure of the nightclubs

complaints and for their decision to seek the temporary prosecutors engaged in conduct

restraining orders. Plaintiffs allege that Parrish, Weirich, and temporary restraining orders.

Nichols “filed on behalf of the State of Tennessee on relation

of the Defendant Pierotti a series of prolix pleadings against Plaintiffs allege that the prose

various in rem and in personam Defendants, including the the temporary restraining order

instant Plaintiffs, alleging the existence of public nuisances.” customers who were at the nightc

J.A. at 496 (Cooper Am. Compl. ¶ 34). Plaintiffs also alleged was not explicitly identified i

that “[u]pon filing of the complaints referenced in ¶ 34 above, orders. Even if we assume that t

the Defendants Pierotti, Parrish, Weirich and Nichols challenge the treatment of their c

importuned the Defendant Alissandratos to issue an ex parte we express no opinion, we still

directive in each case, which was captioned ‘TEMPORARY the temporary restraining orders

RESTRAINING ORDER’.” J.A. at 497 (Cooper Am. Compl. the temporary detention of the cu

¶ 36). Once again, the plaintiffs have failed to allege that the seizure of the business office

Pierotti, Weirich, and Nichols engaged in any investigative Management Company, a comp

activities. Because the prosecutors were functioning squarely business functions related to th

within their capacities as advocates for the state when they temporary restraining orders au

filed the public nuisance and civil forfeiture complaints and restrain all “parties, proprietors,

persuaded Chancellor Alissandratos to issue the temporary agents . . . [and] all other person

restraining orders, they are entitled to absolute prosecutorial from devaluing, removing, dimi

immunity. destroying, deleting, amending

349 (Temporary Restraining O

District Attorney General Pierotti and Assistant District The temporary restraining o

Attorneys Weirich and Nichols are also protected by absolute prosecutors to seize “all persona

immunity for the role that they allegedly played in the seizure . . . whether located on or with

of property and detention of persons at the nightclubs. location (including, but not limit

Plaintiffs allege that Weirich and Nichols “participated in the headquarters, off-premises

unlawful forcible occupation of the Plaintiffs’ properties or depositories) used in any wa

directed or supervised law enforcement personnel in effecting operation, conduct and/or mainta

the challenged seizures.” J.A. at 498 (Cooper Am. Compl. at 349 (Temporary Restraining