203 F.3d 937 (6th Cir. 2000), 98-6324, Cooper v Parrish

Docket Nº:98-6324
Citation:203 F.3d 937
Party Name:Steven Craig Cooper et al., Plaintiffs-Appellants, v. Larry E. Parrish et al., Defendants-Appellees.
Case Date:February 09, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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203 F.3d 937 (6th Cir. 2000)

Steven Craig Cooper et al., Plaintiffs-Appellants,

v.

Larry E. Parrish et al., Defendants-Appellees.

No. 98-6324

United States Court of Appeals, Sixth Circuit

February 9, 2000

Argued: September 17, 1999

Appeal from the United States District Court for the Western District of Tennessee at Memphis; Nos. 97-02625; 97-02626--Bernice B. Donald, District Judge.

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John E. Herbison, Robert S. Catz, Nashville, Tennessee, for Appellants.

Larry E. Parrish, Law Offices of Larry Parrish, Memphis, Tennessee, for Larry E. Parrish

Mary M. Bers, Asst. Atty. Gen., Office of Atty. Gen., Civil Rights and Claims Division, Nashville, Tennessee, for Amy P. Weinrich, Jennifer S. Nichols, and William B. Gibbons

David E. Caywood, CAUSEY, CAYWOOD, TAYLOR, McMANUS & BAILEY, Memphis, Tennessee, for D.J. Alissandratos

David Wade, MARTIN, TATE, MORROW & MARSTON, Memphis, Tennessee, for Mark Glanker

Heather C. Ross, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for John Simmons

Frank J. Glanker, Jr., Robert L. Hutton, Glanker Brown, PLLC, Memphis, Tennessee, for John W. Pierotti.

David Martello, City of Memphis Police Dept., Memphis, Tennessee, for David Martello

Before: RYAN, MOORE, and GIBSON,[*] Circuit Judges.

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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. Plaintiffs allege that the prosecutors and the private attorney violated their constitutional rights when they engaged in ex parte communications with the chancellor, filed public nuisance and civil forfeiture complaints, sought temporary restraining orders, executed the restraining orders, and, in the case of one of the prosecutors, swore to the truth of the allegations in the complaints. Finally, plaintiffs allege that the two state investigators violated their constitutional rights when they executed the restraining orders.

For the reasons stated below, we AFFIRM the district court's dismissal of the claims against the chancellor, the three state prosecutors, and the two state investigators in this case. The district court, however, improperly dismissed the claims against Larry Parrish because he is not eligible to receive absolute or qualified immunity. Therefore, we REVERSE the district court's dismissal of the claims against Parrish and REMAND the claims against him to the district court for further proceedings consistent with this opinion. We also REVERSE the district court's dismissal of the state law claims against all the defendants and REMAND these claims to the district court for further proceedings consistent with this opinion. Finally, we VACATE the district court's dismissal of the plaintiffs' claims for injunctive relief on Younger abstention grounds and REMAND these claims to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

Plaintiffs set forth their claims against these defendants in two separate complaints, which were filed in cases that the district court consolidated on August 27, 1997. For present purposes, we must accept as true all well-pleaded, nonconclusory allegations contained in the two complaints. Buckley v. Fitzsimmons, 509 U.S. 259, 261 (1993).

Plaintiffs allege that as early as December of 1995, Larry Parrish, a private attorney practicing law in Tennessee, and John Pierotti, who at the time was the District Attorney General for the Thirtieth Judicial District of Tennessee, 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

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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 Tenn. Code 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 produce identification, which was photocopied or recorded. These individuals were then served subpoenas that required them to report to the district attorney general's office and provide sworn statements.

Law enforcement officers also seized the business offices of Southern Entertainment Management Company, a company that conducted various business functions related to three of the nightclubs. The eight nightclubs and the Southern Management Business offices remained closed and in the custody of the district attorney general's office for fourteen days; thus, the owners did not regain custody of their respective properties until the restraining orders had expired.

On December 10, 1996, the Shelby County district attorney general's office obtained criminal indictments from a grand jury that charged Steven Cooper, who owned three of the nightclubs, with presenting obscene live performances, promoting prostitution, public indecency, and importing and distributing obscene material. The civil public nuisance action against Cooper and other defendants was removed to federal court but ultimately remanded back to the Chancery Court of Shelby County. On March 14, 1997, William Gibbons, who had replaced Pierotti as the District Attorney General for the Thirtieth District of Tennessee, voluntarily nonsuited the civil public nuisance action, which was dismissed without prejudice. Gibbons simultaneously notified the Criminal Court of Shelby County that the claims raised in the civil nuisance actions would be included in the criminal case that at the time was pending against Cooper.

On July 11, 1997, the plaintiffs in the present case filed two separate complaints in federal district court. The district court consolidated the two cases - Cooper v. Parrish and Holland v. Parrish - on August 27, 1997. Plaintiff Steven Cooper and his businesses brought a 42 U.S.C. § 1983 action alleging that Defendants Alissandratos, Parrish, Pierotti, Weirich, Nichols, Glankler, and Simmons were liable in their individual capacities for the roles these defendants played in filing the public nuisance suit and seizing his property. Cooper alleged 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

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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...

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