Lookout Mountain Suites, LLC v. Neal Pinkston

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 22, 2021
• Docket: 21-5324
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0440n.06

Case No. 21-5324

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Sep 22, 2021 LOOKOUT MOUNTAIN SUITES, LLC, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) TENNESSEE ) NEAL PINKSTON, District Attorney General ) for 11th Judicial District of Tennessee, in his ) individual capacity; SERGEANT KENDON ) MASSENGALE, #631, Chattanooga Police ) Department, in his individual capacity; ) OFFICER ARYIEL NOVAK, #881, ) Chattanooga Police Department, in her ) individual capacity; INVESTIGATOR ) JAMAAL NOBLE, #818, Chattanooga Police ) Department, in his individual capacity; CITY ) OF CHATTANOOGA, TENNESSEE, a ) Tennessee Municipality, ) ) Defendants-Appellees. )

BEFORE: SUTTON, Chief Judge; McKEAGUE and WHITE, Circuit Judges.

SUTTON, Chief Judge. A Tennessee district attorney sued a motel in state court, alleging

that it created a public nuisance. The court entered an ex parte temporary restraining order,

permitting the State to padlock the motel. Although the locks came off after a hearing five days

later, the company that owned the motel sued several government actors under § 1983, claiming Case No. 21-5324, Lookout Mountain v. Pinkston et al.

that they had deprived it of its property without due process of law by entering the initial ex parte

order. The district court granted summary judgment to the defendants, a ruling we now affirm.

Lookout Mountain Suites, LLC, owned a motel in Chattanooga, Tennessee. The motel

generated more than its fair share of unlawful activity. Over a three-year span, officers with the

Chattanooga Police Department responded to 850 9-1-1 calls in the area, a much larger number

than comparable motels. Visiting the motel “several times a week,” R.2-3 at 105, officers found

drugs, bugs, and crime, with offenses running the gamut from traffic violations to shootings.

Fed up, the Chattanooga Police Department compiled data about crime at the motel and

sent a report to District Attorney Neal Pinkston. After reviewing the evidence, Pinkston concluded

that the motel counted as a public nuisance under a Tennessee statute, Tenn. Code Ann. § 29-3-

101.

Acting on behalf of the State, Pinkston filed an ex parte petition to abate the nuisance in

state court. He attached to the complaint the sworn statements of three Chattanooga police

officers—Kendon Massengale, Jamaal Noble, and Aryiel Novak—detailing their experiences with

the motel. He also attached the police department’s data about the crime there.

Invoking a provision of the same Tennessee statute, he asked the court to issue a temporary

restraining order ex parte. Tenn. Code Ann. §§ 29-3-105, 106(c). The state court granted the

request, permitting the government to padlock the motel and displace its residents. The Hamilton

County Sheriff’s Office put the locks in place.

Consistent with Tennessee law, the state court invited Lookout Mountain to attend a

hearing five days later. Id. § 29-3-106(c). While the court found that the motel created a public

nuisance, it dissolved the temporary restraining order and, in its place, ordered Lookout Mountain

to implement additional security measures to abate the nuisance. Whether unable to comply or

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unwilling to comply, Lookout Mountain sold the motel, prompting the government to dismiss its

public nuisance lawsuit.

Lookout Mountain responded with a lawsuit of its own. It sued the district attorney, the

three officers, and the city, all under § 1983, alleging that they had violated the Fourteenth

Amendment’s Due Process Clause by padlocking the motel without giving Lookout Mountain

notice first. The district court granted summary judgment to each defendant. This appeal followed.

District Attorney Pinkston. Up first is whether the district court properly granted Pinkston

absolute immunity. Whether it applies turns on the role Pinkston played in obtaining permission

to padlock the motel. Absolute immunity covers functions “intimately associated with the judicial

phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). The “analytical

key to prosecutorial immunity . . . is advocacy—whether the actions in question are those of an

advocate.” Holloway v. Brush, 220 F.3d 767, 775 (6th Cir. 2000) (en banc). Acts of advocacy

include those “connected with the initiation and conduct of a prosecution,” Burns v. Reed, 500

U.S. 478, 492 (1991), but not those that “cast” the prosecutor “in the role of an administrator,”

“investigative officer,” or “complaining witness,” Kalina v. Fletcher, 522 U.S. 118, 125, 131

(1997) (quotation omitted).

Absolute immunity shields Pinkston. He evaluated the evidence, filed a complaint, and

sought a temporary restraining order under a state law designed for this purpose. Each act

represents one “connected with the initiation and conduct of a prosecution.” Burns, 500 U.S. at

492.

We have been down this road before. In Cooper v. Parrish, we held that absolute immunity

protected a Tennessee prosecutor’s decision to file a public nuisance complaint and to seek an ex

parte temporary restraining order. 203 F.3d 937, 948 (6th Cir. 2000). Such acts, we said, fall

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“squarely within” a prosecutor’s “role as an advocate,” as they relate to the “initiation of judicial

proceedings.” Id. at 947–48. As in that case, so here.

Rieves v. Town of Smyrna does not solve Lookout Mountain’s problem. 959 F.3d 678 (6th

Cir. 2020). Although that decision declined to extend absolute immunity to Tennessee prosecutors

pursuing a public nuisance, it did so because the prosecutors instructed officers to conduct raids

on the property, and they otherwise oversaw the investigation. Id. at 692–93. By stepping out of

the shoes of an advocate and into the boots of an investigator, the prosecutors made themselves

ineligible for absolute immunity. Id. at 694; see Kalina, 522 U.S. at 125. That is not what

happened here.

This also is not a case in which Pinkston supported the nuisance complaint with his own

sworn testimony, a move that would have swapped his advocate’s cap for that of a “complaining

witness,” able to assert only qualified immunity. Kalina, 522 U.S. at 131. Discovery proved that

the officers, not Pinkston, swore to the truth of the allegations contained in the complaint. After

reading the complaint, each officer verified before a notary public: “I have read the foregoing and

participated in the investigation referenced above. To the best of my information, knowledge and

belief, I do attest, upon penalty of perjury, that the foregoing is true and accurate.” R.2-3 at 5–7;

see also id. at 103–08. Pinkston did no such thing. Although he filed the officers’ verifications

along with the complaint, Pinkston did not “execute any verification” of his own and indeed “made

no oath in relation” to the nuisance complaint. R.218 at 4. Because Pinkston simply

“select[ed] . . . the particular facts to include” in the complaint, without “attesting” to their “truth,”

he acted as an “advocate,” not as a “complaining witness.” Kalina, 522 U.S. at 130–31.

Officers Massengale, Noble, and Novak. Up next is whether the district court properly

granted the officers qualified immunity. As in all qualified immunity cases, this case prompts two

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familiar questions. Did the officers violate Lookout Mountain’s constitutional rights? If so, were

those rights clearly established at the time? See Pearson v. Callahan, 555 U.S. 223, 232, 236

(2009).

The pertinent constitutional rights flow from the Fourteenth Amendment, which says that

no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S.

Const. amend. XIV. When it comes to deprivations of property, there is a rule and an exception

to the rule. The rule: Notice and a hearing are usually required before divesting someone of a

property interest. See, e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 12–13 (1978).

The exception: An ex parte order temporarily may divest a property interest if “quick action” is

needed. Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982) (quotation omitted).

While there is evidence that quick action was needed, we need not rely on that ground.

There are two other defects with this due process claim.

First, to prevail on this claim, Lookout Mountain had to show that these officers violated

its constitutional rights. That requires a “connection between the defendant’s conduct and the

alleged constitutional violation[],” here between these officers and the ex parte padlocking of the

motel. Cooper, 203 F.3d at 951. But Lookout Mountain has not made that showing. The

investigating officers, the record establishes, were “not involved in any way with making the

decision to seek an order padlocking the [motel] without prior notice . . . to the owner.” R.212 at

3–4. Pinkston “alone” decided to “proceed with an abatement and to do so ex parte.” R.218 at 2,

4. That is just what the district court concluded, and so do we. Lookout Mountain, notably, does

not challenge this aspect of the district court’s ruling. Nor has it explained how it can prevail

without doing so. The district court properly granted summary judgment to the officers.

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Second, Lookout Mountain has not identified any clearly established law to support its

claim. Although it cites seven cases in a bulleted list, none comes close to holding that a public

nuisance of this sort falls short of an exigent circumstance that justifies withholding pre-

deprivation process.

The City of Chattanooga. Up third is whether the district court properly dismissed Lookout

Mountain’s failure-to-train claim against the city. See Monell v. N.Y.C. Dep’t of Soc. Servs., 436

U.S. 658, 690–91 (1978). Our conclusion that Lookout Mountain has not identified any clearly

established law defeats this claim. Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 994–

95 (6th Cir. 2017). Lookout Mountain does not argue otherwise.

Other arguments. Lookout Mountain devotes most of its appellate briefing to arguments

it did not make in the district court: that Tennessee’s public nuisance statute does not permit

shuttering a property without prior notice, that Pinkston lacked probable cause to believe that the

motel amounted to a public nuisance, and that the officers gave false statements in their affidavits.

The company simply did not raise these arguments below. In the words of the district court:

“Plaintiff does not challenge the truth of these affidavits. In fact, Plaintiff does not argue its motel

was not a public nuisance. Instead, Plaintiff essentially claims Attorney General Pinkston was

incorrect in deciding an emergency situation existed such that proceeding ex parte was

constitutionally permissible.” R.238 at 15. By failing to raise these arguments below, Lookout

Mountain forfeited them on appeal. See 600 Marshall Ent. Concepts, LLC v. City of Memphis,

705 F.3d 576, 585 (6th Cir. 2013).

Motion for Sanctions. The city and the officers filed a motion for attorney’s fees and other

sanctions, arguing that Lookout Mountain filed a frivolous appeal. While this issue presents the

closest question in the case, we will not grant this motion today. But the company’s counsel would

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be well advised to consider more carefully in the future what amounts to a colorable ground for

appeal and what does not.

We affirm.