Court of Appeals for the Eighth Circu 1 RECOMMENDED FOR FUL Pursuant to Sixth… v. Larry E. Parrish

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

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No. 98-6324 Cooper,
*The Honorable John R. Gibson,
Court of Appeals for the Eighth Circu
1
RECOMMENDED FOR FUL
Pursuant to Sixth C
ELECTRONIC CITATION: 2000
File Name: 00
UNITED STATES CO
FOR THE SIXT
__________
S TEVEN C RAIG C OOPER et al.,
Plaintiffs-Appellants,
v.
LARRY E. P ARRISH 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

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4 Cooper, et al. v. Parrish, et al. No. 98-6324
_________________
COUNSEL
ARGUED: John E. Herbison, Nashville, Tennessee, for
Appellants. David Wade, MARTIN, TATE, MORROW &
MARSTON, Memphis, Tennessee, for Appellees.
ON BRIEF: John E. Herbison, Nashville, Tennessee, Robert
S. Catz, Nashville, Tennessee, for Appellants. David Wade,
MARTIN, TATE, MORROW & MARSTON, Memphis,
Tennessee, David E. Caywood, CAUSEY, CAYWOOD,
TAYLOR, McMANUS & BAILEY, Memphis, Tennessee,
Mary M. Bers, Heather C. Ross, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, Larry E.
Parrish, LAW OFFICES OF LARRY PARRISH, Memphis,
Tennessee, Robert L. Hutton, GLANKLER BROWN, PLLC,
Memphis, Tennessee, for Appellees.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. This case
allegedly involves an attempt on the part of a state court
chancellor, three state prosecutors, two state investigators,
and a private attorney to shut down several nightclubs that
feature nude dancing in Memphis, Tennessee. Plaintiffs
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.
No. 98-6324 Cooper,
proceedings, then Cooper woul
opportunity to raise his const
nuisance statute. Therefore, we
on remand determine whether
Gibbons included the nuisance
proceedings, assuming that ther
pending when Cooper filed hi
district court determines on re
General Gibbons did not includ
state criminal proceedings, the
address the merits of Cooper’s r
III. CONC
For the reasons stated above
court’s dismissal of the federal c
Alissandratos, Pierotti, Weiric
Simmons. We REVERSE the
the claims against Parrish and R
him to the district court for fu
with this opinion. We also RE
dismissal of the state law claim
and REMAND these claims to
proceedings consistent with t
VACATE the district court’s
claims for injunctive relief on
and REMAND those claims to
proceedings consistent with this

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28 Cooper, et al. v. Parrish, et al. No. 98-6324
district court’s conclusion that these proceedings would likely
involve important state interests. As the district court in this
case pointed out, the state has an important interest in
“exposing and prohibiting promotions of prostitution, illegal
obscene live performances, acts that contribute to the
delinquency of minors, as well as distributions and
importations of obscene material.” Cooper, 20 F. Supp. 2d at
1211. Because Cooper was indicted pursuant to statutes that
are meant to protect public health and safety, see, e.g., DLS,
Inc. v. City of Chattanooga, 107 F.3d 403, 410-11 (6th Cir.
1997) (explaining that city ordinance prohibiting entertainers
in adult establishments from coming within six feet of
customers did not violate First Amendment because ordinance
furthered important state interests in prevention of crime and
disease), the second Younger requirement would be satisfied
by pending state prosecutions.
The third requirement for Younger abstention is that there
be “an adequate opportunity in the state proceedings to raise
constitutional challenges.” Fieger v. Thomas, 74 F.3d 740,
745 (6th Cir. 1996) (quoting Middlesex County Ethics Comm.
v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)). In the
present case, this requirement would be satisfied only if
District Attorney General Gibbons included the nuisance
charges against Cooper in the criminal proceedings that were
pending in state court, assuming that criminal proceedings
were in fact pending when Cooper filed his federal complaint.
Indeed, if state criminal proceedings involving the nuisance
charges were pending at the time Cooper filed his federal
complaint, then Cooper could have raised his constitutional
claims in these proceedings. See Tennessee v. Draper, 800
S.W.2d 489, 497 (Tenn.Crim.App. 1990) (“Our courts have
held that constitutional issues may be raised and considered
at any stage of the proceedings.”) (footnote omitted); Veach
v. Tennessee, 491 S.W.2d 81, 83 (Tenn. 1973) (explaining
that a constitutional question may be raised at any time in a
criminal proceeding even though appellate courts generally
only review questions presented for determination in the trial
court). However, if District Attorney General Gibbons did
not include the nuisance charges in the state criminal
No. 98-6324 Cooper,
Plaintiffs allege that the prosecu
violated their constitutional righ
parte communications with t
nuisance and civil forfeiture co
restraining orders, executed the
case of one of the prosecutors
allegations in the complaints.
the two state investigators viola
when they executed the restrain
For the reasons stated below
court’s dismissal of the claim
three state prosecutors, and the t
case. The district court, howev
claims against Larry Parrish b
receive absolute or qualified
REVERSE the district court’s d
Parrish and REMAND the claim
court for further proceedings con
also REVERSE the district cou
claims against all the defendants
to the district court for further
this opinion. Finally, we VA
dismissal of the plaintiffs’ cla
Younger abstention grounds and
the district court for further pro
opinion.
I. BACKG
Plaintiffs set forth their claim
two separate complaints, which
district court consolidated on A
purposes, we must accept
nonconclusory allegations conta
Buckley v. Fitzsimmons, 509 U.
Plaintiffs allege that as early
Parrish, a private attorney pract
John Pierotti, who at the time
General for the Thirtieth Judi

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6 Cooper, et al. v. Parrish, et al. No. 98-6324
agreed to investigate certain nightclubs in the Memphis area.
District Attorney General Pierotti subsequently directed Amy
Weirich and Jennifer Nichols, two of his assistant district
attorneys, to work on the case. On July 7, 1996, Larry Parrish
and the three prosecutors from the district attorney general’s
office met with D.J. Alissandratos, Chancellor for the
Thirtieth Judicial District of Tennessee. This was the first of
several meetings in which Chancellor Alissandratos allegedly
gave Parrish and the three prosecutors “ex parte legal advice
as to how the pleadings and/or supporting documentation in
such lawsuits [involving the nightclubs] should be drafted so
as to ensure issuance of ex parte orders to close the Plaintiffs’
nightclubs or showbars.” Joint Appendix (“J.A.”) at 495
(Cooper Am. Compl. ¶ 30).
On July 11, 1996, Assistant District Attorneys Weirich and
Nichols, along with Larry Parrish, who earlier that day had
been sworn in as a “Special” Assistant District Attorney, filed
several complaints in Shelby County Chancery Court in
which they alleged that nightclubs in the Memphis area
should be shut down because they were in violation of
Tennessee’s public nuisance statute. Although District
Attorney General Pierotti was not listed as counsel in the
complaints, as relator he did vouch for the truth of the factual
allegations contained in the complaints.
Once Parrish and the other prosecutors had filed the
complaints, they asked Chancellor Alissandratos to issue
several temporary restraining orders pursuant to T ENN . C ODE
ANN . § 29-3-105 (Michie 1999). The temporary restraining
orders purported to authorize Mark Glankler, an investigator
in the district attorney general’s office, and John Simmons, an
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
6:00 p.m., officers entered each of the eight nightclubs and
announced that the club was being seized. The employees
and customers inside the nightclubs were detained by law
enforcement officers for periods of time ranging from one to
five hours. The officers required the club occupants to
No. 98-6324 Cooper,
3There is no evidence that we can
indictments that a grand jury returned
1996 – that suggests that criminal p
Cooper when he filed his federal com
these indictments could have been d
federal complaint, we cannot
Younger requirement has been met.
(6th Cir. 1997). The Younger a
federal court to abstain from en
proceeding “when the state’s i
exercising federal jurisdiction
between federal and state courts
have noted that abstention i
satisfaction of three elements.
abstain when (1) state proceedin
proceedings involve an importa
state proceedings will afford
opportunity to raise his constitu
The first element for Younge
state court proceeding was pen
federal complaint. Zalman v. A
(6th Cir. 1986). Cooper a
proceedings were pending in
federal complaint on July 11, 1
District Attorney General Gibbo
nuisance action before Cooper
District Attorney General Gibb
criminal proceedings involving t
charges were still pending again
federal complaint. There is i
record, however, to determine
requirement has been met.3 Th
the case to the district court so t
criminal proceedings were actu
when he filed his federal compl
If there were state criminal
Cooper filed his federal compl

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26 Cooper, et al. v. Parrish, et al. No. 98-6324
principles if it had the opportunity to address the state law
claims in this case. However, there may be certain nuances in
the Tennessee common law immunity doctrine that Tennessee
courts have yet to address. Thus, we suggest that on remand
the district court consider whether it should decline to
exercise its supplemental jurisdiction over the state law
claims in this case pursuant to 28 U.S.C. § 1367(c)(1). If the
district court on remand chooses to exercise its supplemental
jurisdiction, it will need to determine what immunities (if
any) under Tennessee law pertain to the various state law
claims.
D. Younger Abstention
The Cooper plaintiffs also sued William Gibbons, the
current District Attorney General in Shelby County, in an
attempt to obtain a prospective injunction that would prevent
Gibbons, or any person acting in concert with him, from ever
pursuing an action that has the effect of inhibiting Cooper’s
businesses without giving him prior notice and an opportunity
to be heard. Cooper specifically seeks:
[P]reliminary and permanent injunctions prohibiting the
Defendants Gibbons, Parrish, Weirich and Nichols, their
agents, servants, employees and all person[s] acting in
concert with these Defendants, from proceeding in any
court to procure any form of process related to the
Plaintiffs’ businesses which would have the effect of
inhibiting the Plaintiffs’ exercise of constitutional rights
or interfering with operation of the Plaintiffs’
business(es) without giving the Plaintiffs and their
attorney(s) notice and an opportunity to be heard prior to
the issuance of such process.
J.A. at 508 (Cooper Am. Compl. ¶ 85). The district court
abstained pursuant to Younger v. Harris, 401 U.S. 37 (1971),
and dismissed without prejudice Cooper’s claim for
injunctive relief. Cooper, 20 F. Supp. 2d at 1211.
We review a district court’s decision to invoke Younger
abstention de novo. Hayse v. Wethington, 110 F.3d 18, 20
No. 98-6324 Cooper,
produce identification, which w
These individuals were then ser
them to report to the district a
provide sworn statements.
Law enforcement officers als
of Southern Entertainment
company that conducted various
three of the nightclubs. The eigh
Management Business offices
custody of the district attorney
days; thus, the owners did n
respective properties until the re
On December 10, 1996, the Sh
general’s office obtained crimin
jury that charged Steven Coop
nightclubs, with presenting o
promoting prostitution, public i
distributing obscene material.
action against Cooper and other
federal court but ultimately rem
Court of Shelby County. On
Gibbons, who had replaced Pie
General for the Thirtieth Distri
nonsuited the civil public nu
dismissed without prejudice.
notified the Criminal Court of S
raised in the civil nuisance actio
criminal case that at the time wa
On July 11, 1997, the plaintiff
separate complaints in federal di
consolidated the two cases – Co
v. Parrish – on August 27, 1997.
his businesses brought a 42 U.S.
Defendants Alissandratos, Parris
Glankler, and Simmons were
capacities for the roles these de
public nuisance suit and seizing

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8 Cooper, et al. v. Parrish, et al. No. 98-6324
that these defendants violated his First Amendment, Fourth
Amendment, and Fourteenth Amendment procedural and
substantive due process rights, and he alleged that these
defendants had engaged in a civil conspiracy under Tennessee
common law, had conspired to injure his business under
Tennessee common law, and had engaged in an abuse of
process. Finally, Cooper asked the district court permanently
to enjoin William Gibbons, the current district attorney
general in Shelby County, from interfering with his businesses
without giving him prior notice and an opportunity to be
heard. J.A. at 508 (Cooper Am. Compl. ¶ 85).
Plaintiff Amanda Holland, who was an employee at one of
the nightclubs, also brought a § 1983 suit against Parrish,
Pierotti, Glankler, Simmons, and various unnamed law
enforcement officers. Plaintiffs named in the Holland
complaint also included employees and a delivery person who
was detained by law enforcement officers on the night of the
raid. Holland alleged the same four constitutional violations
listed in Cooper’s amended complaint, and she asked the
district court to certify her case as a plaintiff class action
pursuant to Federal Rules of Civil Procedure 23(a) and
23(b)(1), (2), and/or (3).
Chancellor Alissandratos eventually filed a motion to
dismiss all of the claims against him in the Cooper complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) on
various grounds including that he was entitled to absolute
judicial immunity. Parrish, Pierotti, Weirich, Nichols,
Glankler, and Simmons also moved to dismiss the claims
against them pursuant to Rule 12(b)(6) on absolute and
qualified immunity grounds. On May 5, 1998, the district
court dismissed the claims against Chancellor Alissandratos,
J.A. at 627 (Dist. Ct. Order), and on August 26, 1998, the
district court dismissed the claims against the other
defendants. Cooper v. Parrish, 20 F. Supp. 2d 1204 (W.D.
Tenn. 1998). Plaintiffs now appeal the district court’s
dismissal of their claims.
No. 98-6324 Cooper,
Parrish was not performing any u
when he allegedly engaged in th
issue in this case; thus, no pub
impaired if he is forced to resol
merits. Because Parrish was no
state when he participated in th
legal action against the nig
circumstances in this case do
concerns that underlie the qualif
not eligible to assert a qualified i
C. Immunity for
The Cooper plaintiffs have als
engaged in a civil conspiracy un
conspired to injure Cooper’s
common law, and engaged in
district court dismissed the
explicitly on these state law cl
courts appear to incorporate t
doctrine used by federal courts
Shell v. Tennessee, 893 S.W.2d
Willett v. Ford, 603 S.W.2d
1979), we believe that the ex
common law immunity doctrin
issues of state law that Tenness
fully.
In Shell, the Tennessee Supr
precedent in § 1983 cases to dete
state law claims against an assist
dismissed on absolute immunity
at 422-23. The court cited Buck
259 (1993), and Burns v. Reed
explained that these cases “ar
claims] because § 1983 inco
immunities historically granted
Shell, 893 S.W.2d at 422 n.6. B
in Shell, we believe that the
generally would apply federa

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24 Cooper, et al. v. Parrish, et al. No. 98-6324
circumstances. Cullinan v. Abramson, 128 F.3d 301, 310 (6th
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
City of Louisville to serve as outside counsel was entitled to
qualified immunity against § 1983 claims. Id. The court
relied exclusively on a statement made by the Supreme Court
in Richardson v. McKnight, 521 U.S. 399, 407 (1997), which
noted in dictum that “the common law ‘did provide a kind of
immunity for certain private defendants, such as doctors or
lawyers who performed services at the behest of the
sovereign.’” Id. at 310 (second emphasis added). This
statement, along with the fact that the panel saw “no good
reason to hold the city’s in-house counsel eligible for
qualified immunity and not the city’s outside counsel,” led the
panel to conclude that the private attorneys in that case could
successfully assert a qualified immunity defense. Id.
Even if we assume that the Supreme Court in Richardson
intended to extend the qualified immunity doctrine to
“doctors or lawyers who performed services at the behest of
the sovereign,” Richardson, 521 U.S. at 407, Parrish still is
not entitled to qualified immunity because the circumstances
in this case are not analogous to those in Cullinan. For
instance, the court in Cullinan pointed out that there was no
doubt that the private attorneys in that case were acting at the
behest of the city. As the court explained, “[t]he city retained
outside legal counsel for the defense of the lawsuit, entering
into a professional service agreement with [the law firm].”
Cullinan, 128 F.3d at 305-06. In the present case, by contrast,
there is little – if any – evidence that shows that Parrish was
acting at the behest of the state when he helped the
prosecutors pursue legal action against the nightclubs. In fact,
Parrish acknowledges in his brief that he was not paid by the
district attorney general’s office for his legal services.
Parrish’s Br. at 16.
Furthermore, we believe that extending qualified immunity
to a private attorney who works alongside prosecutors in an
unofficial capacity would be inconsistent with the goals and
objectives that underlie the qualified immunity doctrine.
No. 98-6324 Cooper,
II. ANAL
We review de novo a dismissa
Civil Procedure 12(b)(6) for fa
which relief can be granted, con
light most favorable to the plain
well-pleaded factual allegati
Resources, Inc. v. Tatum, 58 F.3
cert. denied, 516 U.S. 1158
appropriate unless it appears bey
prove no set of facts in suppor
them to relief. Conley v. Gibso
A. Absolute Immunity
The district court dismissed th
the defendants who had been
capacities on grounds that these
absolute immunity. The Sup
“functional approach” to deter
entitled to absolute immunity. B
approach looks to “the nature of
the identity of the actor who
Forrester v. White, 484 U.S. 219
also explained that officials who
defense bear the burden of demo
to absolute immunity given t
performed. Burns v. Reed, 500
1. Absolute Judicial Immunit
Plaintiffs argue that Chancello
to absolute immunity because
conduct and acted as a de fa
prosecutors “ex parte legal adv
and/or supporting documentatio
the nightclubs] should be drafte
ex parte orders to close th
showbars.” J.A. at 495 (Cooper
officers generally are absolutely
monetary damages under § 198

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10 Cooper, et al. v. Parrish, et al. No. 98-6324
Mireles v. Waco, 502 U.S. 9, 9-10 (1991). The rationale for
granting judicial officers absolute immunity when they act in
their judicial capacities is that judicial officers should be free
to make controversial decisions and act upon their convictions
without fear of personal liability. Stump v. Sparkman, 435
U.S. 349, 355-56 (1978).
There are two situations, however, in which judicial
officers are not absolutely immune from potential liability.
“First, a judge is not immune from liability for nonjudicial
actions, i.e., actions not taken in the judge’s judicial capacity.
Second, a judge is not immune for actions, though judicial in
nature, taken in the complete absence of all jurisdiction.”
Mireles, 502 U.S. at 11-12 (emphasis in original) (citations
omitted); see also Ireland v. Tunis, 113 F.3d 1435, 1440 (6th
Cir.), cert. denied, --- U.S. ---, 118 S. Ct. 560 (1997). We
therefore must consider whether Chancellor Alissandratos’s
actions were taken in his judicial capacity and whether his
actions were taken in the complete absence of all jurisdiction.
The Supreme Court has explained that courts should focus
on the “nature” and “function” of an act, and not the act itself,
when deciding whether certain actions were taken in a judge’s
judicial capacity. Mireles, 502 U.S. at 13 (quoting Stump,
435 U.S. at 362). This functional approach typically turns on
two factors. First, a court must determine whether an act is
related to those general functions that are normally performed
by a judicial officer. Stump, 435 U.S. at 362. Second, a court
must assess whether the parties expected to deal with the
judicial officer in the officer’s judicial capacity. Id. Plaintiffs
in the present case argue that Chancellor Alissandratos’s ex
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
therefore are not related to those general functions that are
normally performed by a chancellor.
In Barnes v. Winchell, 105 F.3d 1111, 1115-22 (6th Cir.
1997), we had the opportunity to address what constitutes a
prosecutorial as opposed to a judicial act in the absolute
No. 98-6324 Cooper,
2If a private party has conspire
constitutional rights, then that party qu
held liable pursuant to § 1983 – eve
eligible to assert a qualified immunity
158, 168-69 (1992); see also Vector Re
who is not a public official may be lia
and yet not be entitled to qualified i
official, the reason for affording quali
Pierotti’s conduct without ex
violated their constitutional rig
these pleadings was sworn on
Pierotti, who vouched for the t
pleadings.” J.A. at 496 (Coop
plaintiffs have failed to show ho
to the truth of the allegations in t
nuisance complaints deprived th
Fourth Amendment, or Fourteen
the district court should have dis
against District Attorney Gen
immunity grounds.
2. Qualified Immunity for Pa
Plaintiffs argue that Larry Parr
a qualified immunity defense be
public official when he a
unconstitutional conduct at issu
have concluded that Parrish was
when he assisted the prosecutor
to absolute immunity, we still m
successfully assert a qualified im
Private litigants generally a
qualified immunity from suit u
504 U.S. 158, 168-69 (1992); s
F.3d at 698-99; Duncan v. Peck,
Cir. 1988). However, we hav
private attorneys who work pursu
are eligible to receive qualified

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22 Cooper, et al. v. Parrish, et al. No. 98-6324
at 1154. “If the answer is yes, then the second step is to
determine whether the right is so ‘clearly established’ that a
‘reasonable official’ would understand that what he is doing
violates that right.” Brennan, 78 F.3d at 1154 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
1. Qualified Immunity for Pierotti
Plaintiffs argue that District Attorney General Pierotti
violated their First Amendment and Fourth Amendment
rights, as well as their Fourteenth Amendment procedural and
substantive due process rights, when he vouched for the truth
of the allegations in the civil forfeiture and public nuisance
complaints. A civil rights plaintiff, however, cannot simply
assert a constitutional violation and rely on broadly stated
general rights if that plaintiff hopes to overcome a motion to
dismiss on qualified immunity grounds. Garvie v. Jackson,
845 F.2d 647, 650 (6th Cir. 1988). Instead, the plaintiff must
show some sort of connection between the defendant’s
conduct and the alleged constitutional violations. See
Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). Indeed,
we have explained that plaintiffs must allege sufficient facts
that demonstrate that their constitutional rights have been
violated in those instances where a defendant has asserted a
qualified immunity defense. Cameron v. Seitz, 38 F.3d 264,
273 n. 2 (6th Cir. 1994); Dominque v. Telb, 831 F.2d 673, 676
(6th Cir. 1987). Although a district court should give
plaintiffs an opportunity to amend a complaint once a
qualified immunity defense is raised, plaintiffs cannot
overcome a motion to dismiss on qualified immunity grounds
unless they allege facts necessary to show that a defendant has
violated their constitutional rights. Cameron, 38 F.3d at 273
n.2.
In this case, plaintiffs have failed to include factual
allegations in their amended complaints that show that
Pierotti violated their constitutional rights. Although the
district court gave the plaintiffs an opportunity to amend their
original complaints after the defendants asserted a qualified
immunity defense, the plaintiffs continued simply to describe
No. 98-6324 Cooper,
immunity context. We determ
judge had acted within his judi
allegedly had directed two indiv
criminal complaint and had help
of the complaints. Although th
been improper under state la
“absolute judicial immunity e
exercising his or her authority,
errors.’” Id. at 1120 (quoting
Because the parties independent
judge, and because the imprope
general judicial functions that a
presiding over a criminal case,
was acting in his judicial cap
criminal charges and helped t
criminal complaint. Id. at 1121
Like the municipal judg
Alissandratos was acting in hi
engaged in ex parte contact with
prosecutors legal advice regar
improve their case. As Chancel
out, Tennessee Rule of Civil Pro
judicial officer to issue a res
commencement of legal action
party. Moreover, Rule 65.03(2)
order may be granted only by a ju
action is pending or is to be
Alissandratos is a judge of the
nuisance action against the night
was acting within his judicial au
prosecutors from the district atto
purpose of deciding whethe
restraining orders.
Furthermore, even though
participation in ex parte commun
in which he allegedly discussed
lawsuits may have been improp
TENN . S UP . C T . R. 10, Cannon 3.

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12 Cooper, et al. v. Parrish, et al. No. 98-6324
a judge shall not engage in ex parte communications with one
of the parties unless “the judge reasonably believes that no
party will gain a procedural or tactical advantage as a result of
the ex parte communication”), these communications were
nonetheless related to his general judicial functions, which
include the authority to issue an ex parte restraining order
prior to the commencement of a lawsuit. TENN . R. C IV . P.
65.03. Indeed, even if we assume that Alissandratos
committed “grave procedural errors” when he gave the ex
parte legal advice, he still was acting within his judicial
capacity because his conduct is related to those general
judicial functions that a chancellor would normally perform.
See Barnes, 105 F.3d at 1120.
We also must consider whether Chancellor Alissandratos’s
actions were taken in the complete absence of all jurisdiction.
Stump, 435 U.S. at 362. The Supreme Court has instructed
that “[a] judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in
excess of his authority; rather, he will be subject to liability
only when he has acted in the ‘clear absence of all
jurisdiction.’” Id. at 356-57 (quoting Bradley v. Fisher, 80
U.S. (13 Wall.) 335, 351 (1871)) (footnote omitted). We
have interpreted this language to mean that there is sufficient
jurisdiction for immunity purposes where a court has some
subject matter jurisdiction over the underlying legal actions.
Barnes, 105 F.3d at 1122; see also Ireland, 113 F.3d at 1441
(“If the matter upon which the judge acts is clearly outside the
subject matter jurisdiction of the court over which the judge
presides, the act is done in the clear absence of all
jurisdiction.”).
In this case, Chancellor Alissandratos had subject matter
jurisdiction over the public nuisance action that the district
attorney general ultimately brought against the nightclubs.
TENN . C ODE ANN . § 29-3-102 (1998) (“[J]urisdiction is
hereby conferred upon the chancery, circuit, and criminal
courts to abate the public nuisances defined in [Tennessee
Code Annotated] § 29-3-101, upon petition in the name of the
state, upon relation of the attorney general, or any district
No. 98-6324 Cooper,
been properly appointed to act o
court explained:
We find no statutory authori
District Attorney General to i
to act on behalf of the state fro
took an oath of office in July
statutory authority authorizi
General to formally appoint
‘Special Assistant Distric
understanding that Parrish w
from private sources.
Id. at *4. Furthermore, the cour
never properly appointed by
counsel to the District Atto
Tennessee Code Annotated § 8
used to compensate Parrish – he
by a private non-profit orga
enforcement efforts in oppositio
appointment. Id.
We agree with the Tennesse
District Attorney General Piero
statutory authority when he app
“Special” Assistant District A
Because Parrish does not qualify
entitled to absolute prosecutoria
the district court erred when it di
against him on absolute immun
B. Qualified Immunity
Defendants Pierotti and Parr
entitled to qualified immunity.
test for determining whether pu
qualified immunity. Brennan v
F.3d 1152, 1154 (6th Cir. 1996
whether plaintiffs have alle
constitutionally protected right a
v. Lewis, 118 S. Ct. 1708, 1714 n

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20 Cooper, et al. v. Parrish, et al. No. 98-6324
1We cite Cullbreath simply as an authority on Tennessee law. Thus,
we need not and do not consider whether Parrish is precluded from
arguing that he was properly appointed to serve as a “Special” Assistant
District Attorney after the decision in the Cullbreath case.
to cover the detention of the customers at the nightclubs and
the seizure of the Southern Entertainment Management
Company. Glankler and Simmons therefore did not engage
in conduct that exceeded the scope of the temporary
restraining orders, and they are entitled to absolute immunity
for the role they played in the execution of the restraining
orders.
4. Absolute Immunity for Parrish
Plaintiffs also argue that the district court improperly
dismissed their claims against Larry Parrish, a private attorney
licensed to practice in Tennessee who was informally sworn
in as a “Special” Assistant District Attorney on July 11, 1996,
because Parrish was not acting as an official government
officer and therefore is not entitled to absolute immunity.
Private attorneys who allegedly engage in unconstitutional
conduct while acting under color of state law are not entitled
to immunity. See Vector Research, Inc. v. Howard & Howard
Attorneys P.C., 76 F.3d 692, 699 (6th Cir. 1996) (denying
private attorneys qualified immunity in § 1983 action). Thus,
Parrish is not entitled to absolute immunity unless he can
show that he was acting as a public official when he allegedly
engaged in the unconstitutional conduct. See id.
We conclude that Parrish was not acting as a public official
when he allegedly engaged in the conduct at issue in this case
because he was never properly appointed to serve as an
assistant district attorney. See Tennessee v. Culbreath, 1999
WL 134685, *1-2 (March 9, 1999 Tenn.Crim.App.), cert.
granted, Sept. 13, 1999 (Tenn.). In Culbreath, a case that
involves the prostitution and obscenity charges that have been
brought against several of the plaintiffs in the present case,1
the Tennessee Court of Criminal Appeals disqualified Parrish
from serving as a prosecutor on grounds that he had never
No. 98-6324 Cooper,
attorney general.”); see also TE
(stating that a chancellor has
temporary writ of injunction, e
further continuance of such nui
building or place wherein the s
even though Chancellor Alissa
excess of his authority when he m
the district attorney general’s o
legal advice, his actions for judi
not taken in clear absence of all
Because the factual allegati
situation where Chancellor Ali
judicial capacity and within the
jurisdiction, he is absolutely imm
violated the plaintiffs’ constituti
in meetings with the prosecuto
court properly dismissed these
plaintiffs have failed to state
Alissandratos upon which relief
2. Absolute Prosecutorial Imm
District Attorney General Pi
Attorneys Weirich and Nichols
properly granted their Rule 1
because they are entitled to abso
Absolute prosecutorial immun
immunity, is a common law prin
from § 1983 liability. Imbler
430-31 (1976). The Suprem
“functional” approach for determ
entitled to absolute prosecutoria
court should look to “the natur
not the identity of the actor wh
484 U.S. at 229; see also Irelan
This functional approach
prosecutor’s activities are “int
judicial phase of the criminal p
430. Those acts that occur in th

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14 Cooper, et al. v. Parrish, et al. No. 98-6324
role as an advocate for the state, e.g., acts taken to prepare for
the initiation of judicial proceedings or to prepare for trial, are
protected by absolute immunity. Buckley, 509 U.S. at 273;
see also Ireland, 113 F.3d at 1444-45. By contrast, a
prosecutor who “performs the investigative functions
normally performed by a detective or police officer” such as
“searching for the clues and corroboration that might give him
probable cause to recommend that a suspect be arrested” is
entitled only at most to qualified immunity. Buckley, 509
U.S. at 273.
Plaintiffs argue that the prosecutors in this case are not
entitled to absolute immunity because they were pursuing a
civil action when they prepared and filed the public nuisance
and civil forfeiture complaints. Although the Supreme Court
has yet to address directly whether prosecutors are entitled to
absolute immunity when they act as advocates in the course
of a civil rather than a criminal action, several other courts of
appeals have determined that prosecutors are protected by
absolute immunity “when their duties are functionally
analogous to those of a prosecutor’s, regardless of whether
those duties are performed in the course of a civil or criminal
action.” Schrob v. Catterson, 948 F.2d 1402, 1411 (3rd Cir.
1991); see also Mendenhall v. Goldsmith, 59 F.3d 685, 691
(7th Cir.) (explaining that the fact that “the alleged
misconduct here arose in the context of a civil proceeding
with a law enforcement purpose does not render absolute
immunity inappropriate. The essential inquiry is whether [the
prosecutor] was functioning in an enforcement role analogous
to that of a prosecutor.”) (citations and footnote omitted)),
cert. denied, 516 U.S. 1011 (1995). We agree that the
prosecutors in this case may still be absolutely immune even
though the alleged constitutional violations occurred when the
officials were pursuing a civil action. Indeed, as long as the
prosecutors were functioning in an enforcement role and
acting as advocates for the state in initiating and prosecuting
judicial proceedings, they are entitled to an absolute immunity
defense.
No. 98-6324 Cooper,
district attorney general swear
contained in a complaint. Pie
professional judgment as a pros
the truth of allegations in th
performed “an act that any com
performed.” Kalina, 118 S. Ct. a
Court has specifically held that “
function of the witness, not of
acting as an advocate when h
allegations in the public nu
complaints, and he therefore i
immunity for this conduct. Id. a
3. Absolute Immunity for Inv
Plaintiffs also argue that th
dismissed their claims against M
in the district attorney general’s o
agent of the Tennessee Bureau
immunity grounds. In their com
“Glankler and Simmons particip
occupation of the Plaintiffs’
supervised law enforcement
challenged seizures.” J.A. at 49
Law enforcement officers are
as long as they are able to show
quasi-judicial function. Bush, 38
immunity extends to those pe
integral or intertwined with th
persons are considered an arm o
immune.” Id. Law enforcem
absolute quasi-judicial immunit
valid court order. Id. at 847-48
Glankler and Simmons have
pursuant to the temporary res
detained those customers who
seized property that was not
temporary restraining orders.
language in the temporary restra

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18 Cooper, et al. v. Parrish, et al. No. 98-6324
temporary restraining orders authorize law enforcement
officials to restrain any person who could devalue, remove, or
diminish the property – a category that could reasonably
include those customers who were at the nightclubs on the
night of the raid – but they also authorize these officials to
seize property that is in any way connected to the operation of
the nightclubs – a category that certainly includes the
Southern Entertainment Management Company. Thus, the
prosecutors did not engage in conduct that exceeded the scope
of the temporary restraining orders, and they are entitled to
absolute quasi-judicial immunity for their participation in the
seizure of property and detention of persons at the nightclubs.
Finally, we must determine whether District Attorney
General Pierotti is absolutely immune for swearing to the
truth of the factual allegations in the public nuisance and civil
forfeiture complaints. Plaintiffs allege that “[e]ach of these
pleadings was sworn on the oath of the Defendant Pierotti,
who vouched for the truth of the averments of the pleadings.”
J.A. at 496 (Cooper Am. Compl. ¶ 34). The allegations in the
present case are directly analogous to allegations made in
Kalina v. Fletcher, --- U.S. ---, 118 S. Ct. 502, 509 (1997), a
case in which the Supreme Court held that a prosecutor who
vouched for the truth of the contents of a criminal complaint
in order to obtain an arrest warrant was only entitled to assert
qualified immunity. See also Ireland, 113 F.3d at 1447-48
(holding that a prosecutor or investigator who vouches for
truth of allegations in a complaint was not entitled to absolute
immunity).
Pierotti attempts to distinguish Kalina by pointing to the
Court’s statement that “neither federal nor state law made it
necessary for the prosecutor [in Kalina] to make that
certification [in which she swore to the truth of the allegations
in a complaint].” Kalina, 118 S. Ct. at 509. Pierotti argues
that he is entitled to absolute immunity because Tennessee
Code Annotated § 29-3-102 specifically authorizes a district
attorney general, as well as various other officials or ten or
more citizens, to bring a public nuisance suit on relation for
the state. Section 29-3-102 does not, however, require that a
No. 98-6324 Cooper,
Plaintiffs argue that the pros
they were functioning as advo
entitled to absolute immunity wh
parte communications with Ch
prepared and decided to file th
forfeiture complaints; (3) soug
orders; (4) participated in the
nightclubs; and (5) in the case
Pierotti, decided to vouch for the
complaints.
The challenge to the prosecut
communications with Chance
disposed of. In their complaint,
Weirich, and Nichols met with A
of privately (and unethicall
communications regarding law
later related to nightclubs or sho
nude expressive dancing.” J.A.
¶ 28) (second emphasis added).
the prosecutors were performing
that are normally performed by
when they engaged in the ex
Chancellor Alissandratos. Inst
when construed in the light mo
simply describe a situation w
advocates were meeting with
discuss the public nuisance laws
orders that they had decided to p
Several of the other allegatio
are similar to allegations made i
45, a case in which we held
entitled to absolute prosecutoria
deciding to file a criminal co
warrant, and presenting the char
Ireland, the plaintiff had failed
part of the prosecutors that
“investigative activities unde
[prosecutors’] decision to file cr

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16 Cooper, et al. v. Parrish, et al. No. 98-6324
We held that the prosecutors were entitled to absolute
immunity notwithstanding the political motives that allegedly
led the prosecutors to pursue the criminal charges because
“[a] prosecutor’s decision to file a criminal complaint and
seek an arrest warrant and the presentation of these materials
to a judicial officer fall squarely within the aegis of absolute
prosecutorial immunity.” Id. at 1446.
Like the prosecutors in Ireland, the prosecutors in the
present case are entitled to absolute immunity for their
decision to file the public nuisance and civil forfeiture
complaints and for their decision to seek the temporary
restraining orders. Plaintiffs allege that Parrish, Weirich, and
Nichols “filed on behalf of the State of Tennessee on relation
of the Defendant Pierotti a series of prolix pleadings against
various in rem and in personam Defendants, including the
instant Plaintiffs, alleging the existence of public nuisances.”
J.A. at 496 (Cooper Am. Compl. ¶ 34). Plaintiffs also alleged
that “[u]pon filing of the complaints referenced in ¶ 34 above,
the Defendants Pierotti, Parrish, Weirich and Nichols
importuned the Defendant Alissandratos to issue an ex parte
directive in each case, which was captioned ‘TEMPORARY
RESTRAINING ORDER’.” J.A. at 497 (Cooper Am. Compl.
¶ 36). Once again, the plaintiffs have failed to allege that
Pierotti, Weirich, and Nichols engaged in any investigative
activities. Because the prosecutors were functioning squarely
within their capacities as advocates for the state when they
filed the public nuisance and civil forfeiture complaints and
persuaded Chancellor Alissandratos to issue the temporary
restraining orders, they are entitled to absolute prosecutorial
immunity.
District Attorney General Pierotti and Assistant District
Attorneys Weirich and Nichols are also protected by absolute
immunity for the role that they allegedly played in the seizure
of property and detention of persons at the nightclubs.
Plaintiffs allege that Weirich and Nichols “participated in the
unlawful forcible occupation of the Plaintiffs’ properties or
directed or supervised law enforcement personnel in effecting
the challenged seizures.” J.A. at 498 (Cooper Am. Compl.
No. 98-6324 Cooper,
¶ 40). Plaintiffs also allege tha
each nightclub . . . resulted di
direction and control of the Defe
J.A. at 499 (Cooper Am. Compl
official is entitled to absolute q
that official acts pursuant to a v
act of “enforcing or executing
associated with a judicial proce
F.3d 842, 847 (6th Cir. 1994) (c
in this case therefore cannot su
the seizure of the nightclubs
prosecutors engaged in conduct
temporary restraining orders.
Plaintiffs allege that the prose
the temporary restraining order
customers who were at the nightc
was not explicitly identified i
orders. Even if we assume that t
challenge the treatment of their c
we express no opinion, we still
the temporary restraining orders
the temporary detention of the cu
the seizure of the business office
Management Company, a comp
business functions related to th
temporary restraining orders au
restrain all “parties, proprietors,
agents . . . [and] all other person
from devaluing, removing, dimi
destroying, deleting, amending
349 (Temporary Restraining O
The temporary restraining o
prosecutors to seize “all persona
. . . whether located on or with
location (including, but not limit
headquarters, off-premises
depositories) used in any wa
operation, conduct and/or mainta
at 349 (Temporary Restraining

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