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Higdon v. Tusan

United States District Court, N.D. Georgia, Atlanta Division

February 10, 2017

ALEX HIGDON, Plaintiff,
v.
JUDGE GAIL S. TUSAN, et al., Defendants. ALEX HIGDON, Plaintiff,
v.
FULTON COUNTY, et al., Defendants.

          OPINION AND ORDER

          THOMAS W. THRASH, JR. United States District Judge.

         I. Background

         Proceeding pro se, the Plaintiff has filed several actions in this Court, all of which generally relate to his divorce/child custody dispute in Fulton County Superior Court. This Order concerns two of those cases, both of which assert claims under 42 U.S.C. § 1983. In Civil Action Number 1:15-CV-0287-TWT (the first case), the Plaintiff sued Fulton County Superior Court Judge Gail S. Tusan, Krystal M. Moore (who served as Judge Tusan's law clerk), Fulton County Superior Court Judge Bensonetta Tipton Lane, Fulton County Superior Court Judge Cynthia Wright, Fulton County Superior Court Judge Todd Markle, Jennifer Ventry (who was Judge Markle's law clerk), Fulton County Superior Court Judge Kelly Lee Ellerbe, Beth Baer, (who was Judge Ellerbe's law clerk), Debra Beacham (who, according to the Plaintiff, is a marketing professional), Fulton County, and Fulton County Board Chairman John H. Eaves. In Civil Action Number 1:15-CV-3001-TWT (the second case), the Plaintiff again sued Judges Tusan and Wright along with Chairman Eaves. Also in the second suit, the Plaintiff appears to make various allegations against Fulton County, indicating that the Plaintiff intends suing Chairman Eaves in his official capacity.

         The Defendants in both cases filed motions to dismiss for a variety of failings evident in the Plaintiff's pleadings, and this Court granted those motions. The Plaintiff appealed, and the Eleventh Circuit determined that the orders dismissing the two cases contained an insufficient number of sentences and remanded both cases to this Court. This Court again takes the Defendants' motions to dismiss into consideration with the goal of satisfying the apparent requirements of the Eleventh Circuit.

         As noted, both cases concern his Fulton County divorce case before Judge Tusan and other judges. For a short while, the Plaintiff had an attorney representing him in the divorce. Fairly early in the process, however, the Plaintiff took over the case and represented himself. According to his complaints, the Plaintiff has three children, and he is convinced that at least two of them suffer from autism and that they require medical treatment so that they can be cured of their autism. The Plaintiff further claims that one of his children has been cured. It appears that the Plaintiff's former spouse does not believe that the children are autistic and/or that the children would benefit from the treatment that the Plaintiff seeks for them. This Court further takes judicial notice of the fact that legitimate scientific research has led to the generally-accepted belief that there currently is no cure for autism. The dispute regarding the children became the most heated point of contention in the divorce proceedings.

         The 273-page amended complaint in the first case is an excessively long description of events and circumstances, much of which has no discernible connection to the Plaintiff's claims. The Plaintiff begins by discussing at length the actions taken by the guardian ad litem appointed to represent the interests of his children as well as the actions of his former spouse, his former spouse's divorce attorney, and the magistrate judge who initially presided over the divorce case. None of those individuals is named as a defendant in the Plaintiff's suits. The Plaintiff also provides an extended discourse regarding the actions of one of Judge Tusan's former law clerks that has nothing to do with the Plaintiff or his divorce action.

         When the Plaintiff finally makes his way to discussing the actual Defendants in the first case, he claims that Judge Tusan, who was at the time presiding over his divorce proceedings, violated his constitutional rights because she would not let him fully question witnesses during hearings; she ignored his arguments and pleadings; she would not allow him to make certain arguments; she would not allow him to present certain evidence; she failed to sanction his former spouse for failing to arrange for treatment and testing for the Plaintiff's children despite the fact that the judge had ordered her to do so; she allowed his former spouse to fail to turn over discovery; she refused to address the Plaintiff's motions for contempt; she (or perhaps Judge Lane) held the Plaintiff in contempt for failing to pay child support despite the fact that the evidence demonstrated that the Plaintiff's former spouse was lying and that he was not behind in child support payments; she violated judicial ethics by discussing the merits of his case with a television reporter; she deemed a habeas corpus petition which the Plaintiff filed against his former spouse to be frivolous; she refused to recuse herself; she placed a filing restriction on him which required him to get preauthorization before he could file pleadings;[1] and she improperly transferred the case to another judge.

         Regarding Defendant Moore (Judge Tusan's law clerk) the Plaintiff claims that Ms. Moore contacted him because she was concerned about the unfair manner in which Judge Tusan had treated him. According to the Plaintiff, he had multiple conversations with Ms. Moore, at least some of which he recorded. The Plaintiff quotes from the recordings extensively. In the quotes, Ms. Moore generally says that Judge Tusan was biased against the Plaintiff because he is male and representing himself and that the filing restriction that she imposed upon him was illegal. The Plaintiff claims that Ms. Moore agreed to help him by testifying for him and providing him with evidence, but she later reneged on that deal.

         The Plaintiff created a website, georgiacourtreview.com, and he put snippets of his recordings of Ms. Moore on the website. Judge Tusan got wind of this and called the Georgia Bureau of Investigation to have it investigate whether Ms. Moore had been engaged in wrongdoing with respect to the conversations. Judge Tusan later directed the GBI to drop the investigation. Judge Tusan then told Ms. Moore to cease her communications with the Plaintiff and demanded that she have the recordings removed from the internet.

         At this point Defendant Beacham became involved. The Plaintiff describes Ms. Beacham in unflattering terms as one who seeks to assist individuals engaged in domestic litigation by advising them and finding them the appropriate attorney. According to the Plaintiff, Ms. Beacham got involved with Defendant Moore by trying to encourage the Plaintiff to remove the “exposé” from the internet, and threatened the Plaintiff by telling him that if he did not remove the exposé, that Ms. Moore would have him prosecuted for harassment. It is not at all clear what happened next, but Ms. Moore appears to have filed charges against the Plaintiff for harassment in Fulton and Gwinnett Counties. Those charges were dropped. The Plaintiff claims that Ms. Moore and Ms. Beacham both made defamatory statements about the Plaintiff. Defendant Beacham told the media and others that the Plaintiff had assaulted Defendant Moore and that the Plaintiff was a “menacing [person] of ill repute.”

         Judge Lane, who appears to have inherited the case from Judge Tusan for a while, twice issued an order to incarcerate the Plaintiff after incorrectly finding that he had not paid attorneys' fees and child support. The Plaintiff claims that he filed a supersedeas and a notice of appeal to stay the contempt finding, but Judge Lane ignored it and had him detained. Judge Lane also improperly awarded attorneys' fees to the Plaintiff's opponents.

         The Plaintiff also asserts various official capacity claims against the chairman of the Fulton County Board of Commissioners and the county itself. He claims generally that the county violated his rights in its failure to properly supervise the guardian ad litem system and the court.

         In his prayer for relief in the first case, the Plaintiff seeks declaratory relief in the form of orders that would have the effect of overruling the orders issued by the Fulton County judges and to recover damages for a great variety of constitutional violations that purportedly interfered with his custody of his children.

         In the complaint in the second case the Plaintiff first claims that existence of the Family Court Division operating as part of the Fulton County Superior Court violates the Georgia Constitution. According to the Plaintiff, a 1994 amendment to the state constitution permits the legislature to create specialty courts as pilot programs and that those courts must be of limited duration. The Plaintiff further claims that the most recent law passed by the state legislature creating the family court in Fulton County expired in 2010, and no replacement bill was passed. Rather, the Plaintiff claims, the Fulton County Superior Court judges passed a resolution creating a family division within the court subject to the approval of the Georgia Supreme Court. The state supreme court later approved of the resolution creating the family division. The Plaintiff asserts that ...


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