“[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus”
How later courts described this case
- “[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
HERBERT BUTLER (#124959) CIVIL ACTION
VERSUS
25-232-SDD-SDJ
CHUCK TILLIS, ET AL.
NOTICE
Please take notice that the attached Magistrate Judge’s Report has been filed with the Clerk
of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the
attached Report to file written objections to the proposed findings of fact, conclusions of law, and
recommendations therein. Failure to file written objections to the proposed findings, conclusions,
and recommendations within 14 days after being served will bar you, except upon grounds of plain
error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions
of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE
WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT.
Signed in Baton Rouge, Louisiana, on April 20, 2026.
S
SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
HERBERT BUTLER (#124959) CIVIL ACTION
VERSUS
25-232-SDD-SDJ
CHUCK TILLIS, ET AL.
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court on Defendants’ Motion to Dismiss (R. Doc. 16). The
Motion is opposed. See R. Doc. 18.
The pro se Plaintiff, an inmate incarcerated at Louisiana State Penitentiary, filed this
proceeding pursuant to 42 U.S.C. § 1983, complaining that his constitutional rights were violated
in connection with a parole proceeding. He seeks monetary, declaratory, and injunctive relief.
Official Capacity Claims
Defendants first seek dismissal on jurisdictional grounds, pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure, of Plaintiff’s § 1983 claims against them in their official
capacities. To the extent Plaintiff may be asserting a § 1983 claim for monetary damages against
the individual Defendants in their official capacities, § 1983 does not provide a federal forum for
a litigant who seeks monetary damages against either a state or its officials acting in their official
capacities, specifically because these officials are not seen to be “persons” within the meaning of
§ 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989). In addition, in Hafer
v. Melo, 502 U.S. 21 (1991), the United States Supreme Court addressed the distinction between
official capacity and individual capacity lawsuits and made clear that a suit against a state official
in an official capacity for monetary damages is treated as a suit against the state and is therefore
barred by the Eleventh Amendment. Id. at 25. The same applies to the state and state agencies. Will
v. Michigan Dep't of State Police, 491 U.S. 58, 64, 71 (1989); Lumpkins v. Office of Cmty. Dev.,
621 F. App’x. 264, 268 (5th Cir. 2015); Bishop v. State Bar of Texas, 791 F.2d 435, 438 (5th Cir.
1986). Accordingly, to the extent Plaintiff may be asserting a § 1983 claim for monetary damages
against the individual Defendants in their official capacities, the State, and the Board of Pardons
and Parole, any such claims are subject to dismissal.
Failure to State a Claim
Defendants next assert that Plaintiff has failed to state a claim upon which relief may be
granted. On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court “must
accept as true all of the factual allegations contained in the Complaint.” Erickson v. Pardus, 551
U.S. 89, 94 (2007). Further, “[a] document filed pro se is ‘to be liberally construed’ ... and ‘a pro
se Complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.’ ” Id. (citation omitted). Notwithstanding this less stringent standard,
the court need not accept “a legal conclusion couched as a factual allegation,” Papasan v. Allain,
478 U.S. 265, 286 (1986), or “naked assertions [of unlawful conduct] devoid of further factual
enhancement.” Ashcroft v. Iqbal, supra, 556 U.S. at 678 (internal quotation marks omitted).
Plaintiff’s Allegations
In his Complaint, as amended, Plaintiff alleges the following: Plaintiff was convicted of
second-degree murder and began serving a life sentence in 1988. On November 16, 2023,
Plaintiff’s sentence was commuted to 99 years with the possibility of parole, retroactive to August
1, 2021. When Plaintiff went before the Parole Board on February 5, 2025, instead of applying the
law in place when Plaintiff first became eligible for parole, the Board applied the version of
Louisiana Revised Statute 15:574.2(C)(2) that became effective on April 29, 2024. The new law
requires a unanimous vote. The old law required a majority vote. On February 5, 2025, Plaintiff
received a majority vote in favor of parole. Had the new law not been applied, Plaintiff would have
been released on parole.
Violation of the Ex Post Facto Clause
On August 1, 2021, the date Plaintiff alleges he became eligible for parole, Louisiana
Revised Statute 15:574(C)(2) read, in part, as follows, “Except in cases where the offender is
released pursuant to Paragraph (4) of this Subsection, the committee may grant parole with two
votes of a three-member panel, or, if the number exceeds a three-member panel, a majority vote of
those present…” On February 5, 2025, the date Plaintiff went before the Parole Board, the statute
provided, in part, as follows: “Except as provided in Paragraph (3) of this Subsection, three votes
of a three-member panel shall be required to grant parole or, if the number of members of the panel
exceeds three, a unanimous vote of those present shall be required to grant parole…” As such, the
required vote changed from a majority to unanimous.
Under the Ex Post Facto Clause, “[l]egislatures may not retroactively alter the definition
of crimes or increase the punishment for criminal acts.” Collins v. Youngblood, 497 U.S. 37, 43
(1990) (citing Beazell v. Ohio, 269 U.S. 167, 169–70 (1925)). A statute violates the Ex Post Facto
Clause only if it retroactively “effects [a] change in the definition of respondent's crime” or
“increases the ‘punishment’ attached to respondent's crime.” Cal. Dep't of Corr. v. Morales, 514
U.S. 499, 505 (1995).
In general, rule changes on the suitability of parole do not violate the Ex Post Facto Clause,
while rules affecting eligibility for parole may violate the clause. Parole boards vote on suitability
for parole, not eligibility, thus a change in the number of votes required pertains to suitability for
parole and does not implicate a violation of the Ex Post Facto Clause unless it presents a significant
risk of increased confinement. Wallace v. Quarterman, 516 F.3d 351 (5th Cir. 2008).
In Wallace, the Court held that, while a supermajority requirement “does not alone show a
significant risk of increased confinement, a court must look to the specific facts of the case, if a
claimant has presented such facts, to determine whether a new law produces a ‘sufficient risk’ of
increased confinement.” Wallace, 516 F.3d at 356. Quoting the Supreme Court’s holding in
Garner, the Court held:
When the rule does not by its own terms show a significant risk, the respondent must
demonstrate, by evidence drawn from the rule’s practical implementation by the agency
charged with exercising discretion, that its retroactive application will result in a longer
period of incarceration than under the earlier rule.
In Kyles v. Davis, 734 F. App’x. 912 (5th Cir. 2018), Kyles pointed to the two members of
the seven-member Parole Board who favored his parole. He argued that if those two members had
been on a three-member panel selected under the old procedure, then he would have had enough
votes for parole. Finding Kyles’ argument to be speculative, the Court noted, “The problem is the
“if.” Kyles cannot show that a randomly selected three-member panel would have included the
two members who voted in his favor.” Id. at 913.
The instant case differs from Kyles in that Plaintiff here had a three-member panel, and two
of those members voted in favor of parole. As such, there is no speculation as there was in Kyles.
It is not the case where any seven of the Parole Board members could have been chosen. Three out
of seven members were chosen to form a panel. Two of the members of that three-member panel
voted in favor of parole. As such, under the old law Plaintiff would have been released on parole.
As such, Plaintiff can show that the retroactive application of La. R.S. 15:574(C)(2) resulted in a
longer period of incarceration than under the earlier rule.
Failure to Exhaust
Defendants next assert that Plaintiff’s claim should be dismissed due to his failure to
exhaust state court remedies. In this regard, Defendants are correct. Plaintiff herein is seeking “to
be immediately released from prison.” Plaintiff’s claims call into question the validity of his
confinement; therefore, this claim is subject to dismissal because it may only be pursued in a
habeas corpus proceeding. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a state
prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he
seeks is a determination that he is entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas corpus”).
Although this Court may construe a plaintiff’s §1983 action as a habeas petition, it cannot
be done when the plaintiff has failed to exhaust his state remedies. Walker v. Miss. Parole Bd., 333
F. App’x. 843, 844 (5th Cir. 2009) (“The district court properly declined to construe Walker's
complaint as a habeas petition because Walker failed to exhaust his state remedies.”). Research did
not reveal any recent Louisiana Supreme Court decisions involving Plaintiff. As such, it appears
that Plaintiff never exhausted his claim through the state's highest court, as would be required to
exhaust remedies.
Supplemental Jurisdiction
To the extent that Plaintiff's allegations may be interpreted as seeking to invoke the
supplemental jurisdiction of this Court over potential state law claims, a district court may decline
the exercise of supplemental jurisdiction if a plaintiff's state law claims raise novel or complex
issues of state law, if the claims substantially predominate over the claims over which the district
court has original jurisdiction, if the district court has dismissed all claims over which it had
original jurisdiction, or for other compelling reasons. 28 U.S.C. § 1367. In the instant case, having
recommended that Plaintiff's federal claims be dismissed, the Court further recommends that the
exercise of supplemental jurisdiction be declined.
RECOMMENDATION
It is the recommendation of the Magistrate Judge that the exercise of supplemental
jurisdiction be declined. It is further recommended that Defendants’ Motion to Dismiss (R. Doc.
16) be granted, dismissing Plaintiff’s claims without prejudice for failure to exhaust state court
remedies.
Signed in Baton Rouge, Louisiana, on April 20, 2026.
S
SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE