RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0031p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JEFFREY HUGHES,

Plaintiff-Appellant,

v.

ZANE DUNCAN; GARY M. FAULCON; TIM GOBBLE;

MAE BEAVERS; ROBERTA NEVIL KUSTOFF; BARRETT 

RICH,

Defendants-Appellees.

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No. 22-6004

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.

No. 3:22-cv-00238—Waverly D. Crenshaw, Jr., District Judge.

Argued: July 27, 2023

Decided and Filed: February 15, 2024

Before: GIBBONS, READLER, and DAVIS, Circuit Judges.

_________________

COUNSEL

ARGUED: Melissa K. Dix, HORWITZ LAW, PLLC, Nashville, Tennessee, for Appellant. 

Dean S. Atyia, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, 

for Appellees. ON BRIEF: Melissa K. Dix, Daniel A. Horwitz, Lindsay E. Smith, HORWITZ 

LAW, PLLC, Nashville, Tennessee, for Appellant. Dean S. Atyia, Cody N. Brandon, OFFICE 

OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.

_________________

OPINION

_________________

CHAD A. READLER, Circuit Judge. Jeffrey Hughes was incarcerated in Tennessee 

state prison. Believing that a recent change in state law entitled him to an earlier-than-scheduled 

>
No. 22-6004 Hughes v. Duncan, et al. Page 2

parole hearing, he asked the Tennessee Board of Parole to move up his hearing date. The Board 

refused. In the end, Hughes was paroled about three months after the date he believed he 

became eligible for release. That delay prompted Hughes to file a federal lawsuit against the 

members of the Board, alleging overincarceration. The district court dismissed the case on the 

ground that defendants were absolutely immune from suit for their acts. We agree and affirm. 

I.

Jeffrey Hughes was sentenced to a 27-year term of imprisonment in Tennessee. 

Tennessee law afforded him the opportunity to be released on parole before he served his entire 

sentence, beginning on a statutory “release eligibility date.” Tenn. Code Ann. § 40-35-501(a)(1) 

(West 2024). For Hughes, that day was September 30, 2021. More than a year before that date, 

the Tennessee Board of Parole held an initial parole hearing for Hughes. At the hearing’s close, 

the Board denied Hughes parole, and set a second hearing for July 2022.

After the parole denial, the Tennessee Legislature enacted the Reentry Success Act, 

which altered the Volunteer State’s parole law. 2021 Tenn. Pub. Acts ch. 410, § 12 (codified as 

amended at Tenn. Code Ann. § 40-35-503(i)(1) (West 2024)). Through the Act, Tennessee 

established (with certain exceptions) a “presumption that an eligible inmate must be released on 

parole” upon the release eligibility date “or any subsequent parole hearing.” Tenn. Code Ann. 

§ 40-35-503(i)(1) (West 2024). Hughes read the Act’s presumption of release to apply to him. 

So he wrote the Board to request that it either release him or move up the date of his second 

parole hearing. The Board rebuffed his request on two grounds. One, as a legal matter, the 

Board did not understand the Act to apply retroactively to prior parole denials. Second, as a 

practical matter, the Board believed it lacked the “ability or resources necessary” to reschedule 

hearings for Tennessee inmates who had already had unsuccessful parole hearings.

Undeterred, Hughes sought review of the Board’s decision through a writ of certiorari in 

state chancery court. His efforts were rewarded when the chancery court sided with Hughes. It 

held that Tennessee law entitled Hughes to a second parole hearing “within a reasonable time of 

[his] release eligibility date.” To effectuate that right, the court ordered the Board to set a parole 

hearing within 60 days of his eligibility date. The Board complied, holding a hearing in 
No. 22-6004 Hughes v. Duncan, et al. Page 3

November 2021. Finding Hughes eligible for parole, the Board ordered his release. A month 

later, Hughes exited prison.

A free man, Hughes filed this suit against six defendants, all members of the Board when 

Hughes unsuccessfully petitioned for release. Invoking 42 U.S.C. § 1983, Hughes’s complaint 

alleged that defendants violated his procedural due process rights by depriving him of a protected 

liberty interest in parole without a timely hearing. The district court concluded that defendants 

were entitled to absolute immunity, and thus dismissed the complaint. Hughes filed a timely 

appeal. 

II.

The district court dismissed Hughes’s case on absolute immunity grounds, an issue we 

review de novo. Rieves v. Town of Smyrna, Tenn., 95 F.3d 678, 690 (6th Cir. 2020). In turning 

to that issue, we highlight an underlying legal principle: judicial immunity. Federal common 

law has long afforded judges absolute immunity from suits for money damages arising out of 

actions taken in a judge’s official judicial capacity. Morgan v. Bd. of Prof. Resp. of the Sup. Ct. 

of Tenn., 63 F.4th 510, 518 (6th Cir. 2023). Originating in the Middle Ages, this body of law 

developed as a means to discourage collateral attacks on judicial decisions and to protect judges 

from vexatious litigation. Forrester v. White, 484 U.S. 219, 225 (1988). 

From this settled body of law, today’s case presents a wrinkle, as Hughes does not 

challenge a decision made by judges. Rather, he challenges actions by state parole board 

members. But the judicial immunity principle remains salient, as this manner of immunity has 

been extended to executive officials whose adjudicatory duties resemble those of a judge. See

Butz v. Economou, 438 U.S. 478, 513–14 (1978). The common law adapted in this way out of a 

recognition that those performing judicial functions, regardless of their specific titles, require 

special protection from “harassment [and] intimidation.” Id. at 512. For these reasons, courts 

grant absolute immunity to officials whose duties are functionally comparable to those of a 

judge. See Imbler v. Pachtman, 424 U.S. 409, 423 n.20 (1976) (“It is the functional 

comparability of their judgments to those of the judge that has resulted in both grand jurors and 

prosecutors being referred to as ‘quasi-judicial’ officers, and their immunities being termed 
No. 22-6004 Hughes v. Duncan, et al. Page 4

‘quasi-judicial’ as well.”). Examples are plentiful. See, e.g., Yaselli v. Goff, 275 U.S. 503 

(1927), aff’g 12 F.2d 396 (2d Cir. 1926) (applying absolute immunity to public prosecutors 

under the common law); Butz, 438 U.S. at 514 (extending absolute immunity to executive 

administrative law judges); Foster v. Walsh, 864 F.2d 416, 418 (6th Cir. 1988) (concluding that a 

clerk issuing an arrest warrant was performing a judicial act to which absolute immunity 

attached); Watts v. Burkhart, 978 F.2d 269, 278 (6th Cir. 1992) (en banc) (granting absolute 

immunity to members of a state board of medical examiners); Bush v. Rauch, 38 F.3d 842, 847 

(6th Cir. 1994) (extending absolute immunity to an official performing an “integral part[] of the 

judicial function” by carrying out a court order); Bon-Ing, Inc. v. Hodges, 700 F. App’x 461, 

464–65 (6th Cir. 2017) (granting immunity to Ohio Department of Health employees in an 

“adjudicatory” role).

Butz articulates two considerations that inform whether an executive employee performs 

an adjudicatory function deserving of absolute immunity. 438 U.S. at 513–14. One, are the 

employee’s powers “comparable” to those of a judge? Id. at 513. Two, are there safeguards that 

“tend to reduce the need for private damages actions as a means of controlling unconstitutional 

conduct?” Id. at 512. Examples include “[t]he insulation of the [individual] from political 

influence, the importance of precedent in resolving controversies, the adversary nature of the 

process, and the correctability of error on appeal.” Id.; see also Cleavinger v. Saxner, 474 U.S. 

193, 202 (1985) (summarizing the Butz factors and describing them as non-exhaustive). We 

examine those same issues here, in the context of decisionmaking by the Parole Board. 

A. Reflecting on the Board’s responsibilities and procedures, myriad factors support the 

conclusion that its members are absolutely immune from damages suits challenging its decision 

on when to hold a parole hearing. Initially, we note that the Board, in deciding parole eligibility, 

functions “in a quasi-judicial capacity.” Sellars v. Procunier, 641 F.2d 1295, 1301 n.15 (9th Cir. 

1981) (quoting Bricker v. Mich. Parole Bd., 405 F. Supp. 1340, 1345 (E.D. Mich. 1975)); see 

also Hilliard v. Williams, 465 F.2d 1212, 1217 (6th Cir. 1972) (“The immunity of quasi-judicial 

officers such as prosecuting attorneys and parole board members derives, not from their formal 

association with the judicial process, but from the fact that they exercise a discretion similar to 

that exercised by judges.” (quoting McCray v. State of Maryland, 456 F.2d 1, 3 (4th Cir. 1972))). 
No. 22-6004 Hughes v. Duncan, et al. Page 5

In making decisions to grant, deny, or revoke parole, the Board in effect acts as “an arm of the 

sentencing judge.” Sellars, 641 F.2d at 1301 n.15; Peoples v. Leon, 63 F.4th 132, 138–39 (2d 

Cir. 2023); Tobey v. Chibucos, 890 F.3d 634, 650 (7th Cir. 2018); Cheatham v. Muse, 617 F. 

App’x 252, 254 (4th Cir. 2015) (per curiam); Figg v. Russell, 433 F.3d 593, 598 (8th Cir. 2006); 

Johnson v. R.I. Parole Bd. Members, 815 F.2d 5, 8 (1st Cir. 1987) (per curiam). Like judges, 

board members make parole determinations with an eye towards both prisoner rehabilitation and 

protecting society at large. Sellars, 641 F.2d at 1301 n.15 (quoting Bricker, 405 F. Supp. at 

1345)). 

Hughes’s case presents a variation on this theme. He, by and large, does not challenge an 

ultimate parole determination, as that manner of decision is plainly subject to judicial immunity. 

Rather Hughes’s focus is on defendants’ decision not to reschedule his hearing date to occur in 

advance of his release eligibility date. Whether absolute immunity applies in that setting is 

assessed on a “functional” basis—individuals are entitled to immunity for actions taken in the 

course of judicial proceedings, but not for those that are merely administrative in nature. Bush, 

38 F.3d at 847. That begs the question: are the Board’s scheduling decisions adjudicatory? We 

think so. Borrowing from the judicial immunity test, to determine whether a specific act by an 

adjudicator is covered, we make two inquiries. One, is the function “normally performed by a 

judge?” Dixon v. Clem, 492 F.3d 665, 674 (6th Cir. 2007) (quoting DePiero v. City of 

Macedonia, 180 F.3d 770, 784 (6th Cir. 1999)). That is the case here—trial judges schedule 

hearings nearly every day. See Mann v. Conlin, 22 F.3d 100, 104 (6th Cir. 1994) (scheduling 

decisions are “paradigmatic judicial acts”). Two, did the party deal with the adjudicator(s) in 

their “judicial capacity”? Dixon, 492 F.3d at 674 (citation omitted). Here again, the answer is 

yes. See Tillman v. Price, 113 F.3d 1236 (6th Cir. 1997) (order) (unpublished table decision) 

(affirming grant of immunity for a parole board member’s scheduling decision). As any litigant 

might, Hughes requested a particular hearing date and was refused. 

Equally true, sufficient safeguards exist to protect prisoners’ constitutional rights with 

respect to parole determinations. See Butz, 438 U.S. at 512. The Board is comprised of seven 

members serving six-year terms. Tenn. Code Ann. § 40-28-103(a)–(b) (West 2024). Although 

the members are appointed by the governor, the Board is “autonomous in structure,” and is a 
No. 22-6004 Hughes v. Duncan, et al. Page 6

separate entity from the prison system and the governor’s office. § 40-28-103(a) (“In all respects 

the board shall be separate functionally and administratively from any other agency.”). In this 

regard, it is notably different from the prison discipline committee in Cleavinger, whose 

members were “direct subordinates of the warden who reviews their decision” and, therefore, did 

not serve a traditional adjudicatory function. 474 U.S. at 203–04; see also Quatkemeyer v. Ky. 

Bd. of Med. Licensure, 506 F. App’x 342, 347 (6th Cir. 2012) (noting favorably a medical 

board’s composition “of independent professionals who[] were not direct subordinates of the 

person or entity that appoints them”). The Board also has the authority to take testimony, to 

compel the presence of witnesses and the production of documents, and to appoint legal counsel 

for the indigent. § 40-28-106(a)(1)–(2), (b)(1). Because these adversarial features of the 

Board’s hearing process “tend to enhance the reliability of information and the impartiality of the 

decisionmaking process, there is a less pressing need for individual suits to correct constitutional 

error.” Butz, 438 U.S. at 512. Reinforcing the chance that errors of constitutional magnitude 

will be remedied is the fact that state law requires an internal appeal be made available to 

inmates whose requests for parole are denied. § 40-28-105(d)(11). On top of that, state courts 

are available to provide limited review of the Board’s decisions through writs of certiorari, much 

as the chancery court did in this case. See Phifer v. Tenn. Bd. of Parole, No. M2000-01509-

COA-R3-CV, 2002 WL 31443204, at *3 (Tenn. Ct. App. Nov. 1, 2002); see also Bon-Ing, 700 

F. App’x at 465–66 (holding that sufficient safeguards exist in the form of “procedural 

protections,” “judicial review” in state court, and “administrative appeal”). Each of these review 

mechanisms puts in place a considerable check on the possibility for unconstitutional behavior 

by the Board. And these safeguards are equivalent to those we have recognized as sufficient to 

justify absolute immunity in prior cases. Bon-Ing, 700 F. App’x at 465–66; Quatkemeyer, 506 F. 

App’x at 347–48. 

That immunity should extend in this circumstance is further confirmed by the fact that a 

parole board member’s functions give rise to the potential for vexatious lawsuits, another 

characteristic shared with judges. Butz, 438 U.S. at 512–13. During the most recent year for 

which an annual report is available, the Board held 700 hearings. Bd. of Parole, State of 

Tennessee, 2022–23 Annual Report 8 (Oct. 2023) (available at https://perma.cc/AJ59-NCMX). 

The report does not indicate how many of those resulted in parole denials. But one can safely 
No. 22-6004 Hughes v. Duncan, et al. Page 7

assume that the volume of lawsuits related to the timing of those hearings would be a 

considerable distraction from the Board’s work, were those decisions subject to a damages 

action. Look no further than Hughes’s complaint, which seeks “not less than $1 million.” It 

would not take many filings of that ilk to cross into “vexatious” territory, forcing Board members 

to weigh those consequences in reaching parole decisions.

All in all, the Butz factors, and more, weigh in favor of affording judicial immunity to 

defendants. That conclusion is consistent with a string of unpublished dispositions in which we 

have conferred immunity on parole board members in making decisions on parole eligibility. 

E.g., Wortman v. Bd. of Parole, No. 20-5718, 2021 WL 9528123, at *3 (6th Cir. 2021) (order); 

Horton v. Martin, 137 F. App’x 773, 775 (6th Cir. 2005) (order) (“Parole board members are 

absolutely immune from liability for their conduct in individual parole decisions when they are 

exercising their decision making powers.”) (quotation omitted); Hawkins v. Morse, 194 F.3d 

1312 (6th Cir. 1999) (order) (unpublished table decision); Ward v. Moss, 42 F.3d 1390 (6th Cir. 

1994) (order) (unpublished table decision). Today, we join two of our sister circuits in extending 

that immunity to scheduling decisions specifically. Fort v. Washington, 41 F.4th 1141, 1145–47 

(9th Cir. 2022) (scheduling a parole board hearing is “part and parcel of the decision process” 

and “inexorably connected with a judicial function” (cleaned up)); Thompson v. Duke, 882 F.2d 

1180, 1184 (7th Cir. 1989) (“[T]he state defendants clearly had a duty to schedule and conduct a 

parole violation hearing. Such activity, while perhaps routine in many cases, is obviously an 

integral judicial (or quasi-judicial) function subject to absolute immunity.”).

B.1. Hughes casts defendants’ action in a different light. To his mind, the Board’s error 

in effect was a failure to honor his right to be granted parole. This reframing, however, does not 

change our conclusion. All parties seem to agree that even with the Act’s presumption of parole, 

the Board still must analyze each of the statutory factors bearing on parole before granting it—

sometimes after an in-person hearing, sometimes not. In essence, then, Hughes challenges the 

Board’s timing in performing that analysis. That is not enough to overcome immunity. Consider 

the analogous judicial setting, where a judge enjoys immunity for the “paradigmatic” judicial act 

of scheduling a hearing. Mann, 22 F.3d at 104. The same judge would likewise be immune 

from a suit for the time it takes to decide a pending motion. So too, we conclude, for defendants. 
No. 22-6004 Hughes v. Duncan, et al. Page 8

Resisting this conclusion, Hughes paints the failure to schedule a hearing as a purported 

“non-judicial function[],” to which immunity would not attach. Unlike judicial functions such as 

“hearing evidence, weighing conflicting testimony, and exercising judgment and discretion based 

on the evidence received,” Hughes says, the Board’s scheduling decision was an “administrative 

function” that required neither “adjudication” nor “discretion.” 

We remain unconvinced. To start, the dividing lines here are not as bright as Hughes 

suggests. Acts may be judicial even if they require little to no discretion. With respect to 

scheduling a hearing in particular matters, other circuits agree that even if that task “may be 

characterized by some as ‘mechanical or routine,’ the fact that scheduling a hearing is an 

‘integral judicial . . . function’ places it within the realm of activities protected by quasi-judicial 

immunity.” Fort, 41 F.4th at 1146 (cleaned up); Thompson, 882 F.2d at 1184 (“In the judicial 

context, scheduling a case for hearing is part of the routine procedure in any litigated matter. 

However, the fact that the activity is routine or requires no adjudicatory skill renders that activity 

no less a judicial function.”). We are of the same mind. Setting case schedules and the like are 

part and parcel of a judge’s duty in guiding a dispute to resolution. And even if some amount of 

discretion were required to qualify an act as a judicial function, today’s case is one in which the 

Board clearly exercised discretionary judgment. In the chancellor’s words, the Reentry Success 

Act worked a “sea change in how parole matters are to be handled in Tennessee.” Faced with 

analyzing and applying a novel statute, the Board exercised its interpretive discretion, ultimately 

concluding that the Act did not apply retroactively. That act of legal interpretation is as judicial 

of an activity as they come.

2. Switching gears, Hughes contends that defendants should be precluded from arguing 

for absolute immunity. Pointing back to the chancery court litigation, Hughes contends that both 

judicial estoppel and res judicata stand in the way of us considering whether to afford immunity 

to defendants. The district court disagreed in both respects. We see no error in those 

conclusions.

Take judicial estoppel first, an issue we review de novo. See Stanley v. FCA US, LLC, 51 

F.4th 215, 218 (6th Cir. 2022). That doctrine precludes defendants’ arguments here if they took 

“two ‘clearly inconsistent’ positions at different times,” to Hughes’s “unfair detriment.” Tarrify 
No. 22-6004 Hughes v. Duncan, et al. Page 9

Props., LLC v. Cuyahoga Cnty., 37 F.4th 1101, 1110 (6th Cir. 2022) (quoting New Hampshire v. 

Maine, 532 U.S. 742, 750–51 (2001)). Hughes fails from the start, as he cannot show that the 

Board’s positions in chancery court were inconsistent with those its members take now. 

Consider, for example, the Board’s representation in the state proceeding that it had made “no 

adjudicatory” parole decision reviewable under a writ of certiorari, the procedural vehicle 

through which Hughes brought his state suit. See Phifer, 2002 WL 31443204, at *3 (“Persons 

dissatisfied with the Board’s decisions may obtain judicial review using a petition for common 

law writ of certiorari.”). Hughes believes that claim is inconsistent with defendants’ assertions 

today that their scheduling decision was judicial in nature. But an act falling short of a “parole 

decision” may still be “judicial” for immunity purposes under federal law. At bottom, the 

Board’s prior argument was about ripeness; in stating that “no adjudicatory hearing was held,” 

the Board meant that the chancellor lacked jurisdiction over Hughes’s petition because the Board 

had not issued a parole decision. In contrast, defendants’ claim of “judicial” action here 

concerns not its reviewability under a common law writ of certiorari, but the similarity between 

their acts and a judge’s functions.

The same can be said of the Board’s statement that it took the challenged scheduling 

action at an “administrative meeting.” Hughes characterizes this representation as inconsistent 

with defendants’ present characterization of the scheduling decision as judicial. True, in the 

judicial immunity context, we have sometimes made a distinction between judicial acts, which 

are immunity-eligible, and administrative acts, which are not. See Morgan, 63 F.4th at 519. But 

that dichotomy has no relevance here because immunity was not at issue in the chancery court. 

Taking the record as a whole, the Board and its members were not even speaking the same 

language in the first suit and this one, much less saying clearly inconsistent things. 

Next, consider res judicata. As before, we review the district court’s refusal to apply this 

state law doctrine de novo. Prods. Sols. Int’l, Inc. v. Aldez Containers, LLC, 46 F.4th 454, 457 

(6th Cir. 2022) (citation omitted) (standard of review); West v. Parker, 783 F. App’x 506, 511 

(6th Cir. 2019) (state law issue). According to Hughes, the chancery suit and the present suit 

each implicate the same legal claim, one that stems from the same facts. As a result, he says, 

defendants should not be permitted here to relitigate “the administrative nature of their actions.” 
No. 22-6004 Hughes v. Duncan, et al. Page 10

In district court, Hughes argued for (and the district court applied) the test for claim 

preclusion, which “prevents litigation of all grounds for, or defenses to, recovery that were 

previously available to the parties, regardless of whether they were asserted or determined in the 

prior proceeding.” Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S. Ct. 1589, 

1594 (2020) (quotation omitted); see also Gerber v. Holcomb, 219 S.W.3d 914, 918–19 (Tenn. 

Ct. App. 2006) (applying claim preclusion to an affirmative defense). Hughes maintains that 

framing on appeal. 

Claim preclusion will not bar a party from asserting a defense in a second suit that 

“involves a new claim or cause of action.” Lucky Brand, 140 S. Ct. at 1595 (quotation omitted); 

see also Creech v. Addington, 281 S.W.3d 363, 380–81 (Tenn. 2009) (applying an identical 

principle under Tennessee law). Whether the second suit so qualifies turns on the question 

whether the two claims share a “common nucleus of operative facts.” Lucky Brand, 140 S. Ct. at 

1595 (quotation omitted). Hughes believes that is true here, as both suits stem from the Board’s 

scheduling decision. Yet that approach overlooks the antecedent requirement that the relevant 

defense, in this case, immunity, must have been available to defendants. Id. at 1594. And as 

defendants could not have raised their immunity defense in a state suit offering limited review of 

the Board’s decision, it is not barred here. See Hall v. McLesky, 83 S.W.3d 752, 757 (Tenn. Ct. 

App. 2001) (“[T]he scope of review under the common law writ of certiorari is very narrow. It 

does not involve an inquiry into the intrinsic correctness of the decision of the tribunal below, 

but only into the manner in which the decision was reached.”). 

At day’s end, defendants are not precluded from raising their absolute immunity defense, 

and they do so successfully here.

* * * * *

The district court’s judgment is affirmed.