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
