Higdon v. Fulton County, Georgia, USA et al

Filing 45

OPINION AND ORDER again GRANTING Defendants motions to dismiss and again DISMISSING above styled cases, with the exception of the claims against Ms.Beacham. Plaintiff is DIRECTED to file, within 1 week of the date of this Order, an affidavit of service demonstrating that Ms. Beacham has been properly served, or Plaintiffs claims against Ms. Beacham will be dismissed. Signed by Judge Thomas W. Thrash, Jr. on 2/10/2017. (jkl)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ALEX HIGDON,
Plaintiff,
v.
JUDGE GAIL S. TUSAN, et al.,
Defendants.

ALEX HIGDON,
Plaintiff,
v.
FULTON COUNTY, et al.,
Defendants.

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CIVIL ACTION NO.
1:15-CV-0287-TWT

CIVIL ACTION NO.
1:15-CV-3001-TWT

OPINION AND ORDER
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

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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

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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 generallyaccepted 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

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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

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This Court points out that it is readily apparent from reading the various
complaints in this action that the Plaintiff filed a great many pleadings in his divorce
action, one of which he describes as a habeas corpus petition against his wife.
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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.

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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.

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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 family court is not a type of court that is permitted under the
Georgia Constitution and that the Fulton Superior Court judges “usurped” the state
legislature’s authority to create courts of limited jurisdiction.
The Plaintiff next claims that the Family Division of the Fulton County Superior
Court violates the rights of litigants because the judges allow matters to “languish”
before the courts for years. At certain points, the Plaintiff seems to be promoting the
rights of others similarly situated in class action form. A great deal of his discussion
relates to cases that he was not involved in.

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With respect to his divorce case, the Plaintiff appears to allege that Judge Tusan
failed to rule on motions within ninety days, violating some rule or requirement for
which the Plaintiff fails to provide a citation. The Plaintiff also again discusses his
conversations with Ms. Moore, quoting the recorded conversations at length. The
Plaintiff claims that Ms. Moore told him that Judge Tusan was “negligent” in her
handling of numerous cases. She gave examples of cases that had a great many
pending pleadings but where no hearing had been held. The Plaintiff also revisits his
claim that Judge Tusan imposed improper filing restrictions on him, limiting his ability
to file pleadings.
According to the Plaintiff, Fulton County has a “custom and practice of
depriving the constitutional rights of Georgia citizens by violating judicial recusal and
transfer/case management policies in order to protect and preserve conflict of interests
related to the personal and political gain of . . . Defendants.” According to the
Plaintiff, judges recuse and transfer cases in order to conceal judicial misconduct.
In his divorce case, the Plaintiff claims that Judge Tusan failed to recuse when
she should have, and he later complains that she improperly transferred her case to
Judge Shoob in violation of an administrative rule imposed by the court. After Judge
Tusan transferred the case to Judge Shoob, Judge Shoob transferred the case to Judge
Lane. Judge Lane presided over the case even though she had a conflict of interest

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because she had presided over and ruled improperly in the adjudication of Ms. Moore’s
temporary protective order against a former spouse. Judge Lane then improperly
transferred the case to a judge visiting from Macon.
Concerning Fulton County, the Plaintiff claims the county failed to train, track
and discipline judges and shielded judges from accountability for wrongdoing.
II. Discussion
All Defendants except Ms. Beacham filed motions to dismiss. In those motions,
the Defendants point out, and this Court agrees, that the Plaintiff has failed to state a
claim for relief against any Defendant. Ignoring the fact that the complaints in both
cases bear all the hallmarks of a classic shotgun complaint, all of the Defendants other
than Ms. Beacham, Fulton County, and Chairman Eaves are absolutely immune from
suit. State judges are absolutely immune from liability for their judicial acts. Stump
v. Sparkman, 435 U.S. 349 (1978). This judicial immunity also extends to the agents
and employees of the court, who are entitled to “absolute quasi-judicial immunity”
from suit as to those actions taken while court employees are engaged in their “duties
that are integrally related to the judicial process.” Jenkins v. Clerk of Court, 150 Fed.
Appx. 988, 990 (11th Cir. 2005); see also Carroll v. Gross, 984 F.2d 392 (11th Cir.
1993). All of the Plaintiff’s claims against the various Fulton County judges relate to

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rulings that those judges made or their failure to quickly rule on his motions. These
are exactly the actions for which judges are shielded from liability.
In response to the Plaintiff’s contention that judicial officers are not immune
from claims for declaratory relief, this Court points out that in 1996 Congress amended
42 U.S.C. § 1983 to state that “in any action brought against a judicial officer for an
act or omission taken in such officer’s judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or declaratory relief was unavailable.”
The Plaintiff makes no allegation regarding the existence (much less the violation) of
a declaratory order, and as the Fulton County Superior Court is a court of general
jurisdiction, he cannot claim that declaratory relief was unavailable.
Moreover, this Court cannot grant the declaratory relief2 that the Plaintiff seeks
because it is barred under the Rooker-Feldman doctrine. Under the Rooker–Feldman
doctrine, lower federal courts lack jurisdiction to exercise what would amount to
appellate jurisdiction over final state-court judgments. Nicholson v. Shafe, 558 F.3d

2

In his complaints, the Plaintiff demands declaratory orders that are too
numerous to list. Each requested order would, if granted, directly infer the invalidity
of a ruling or order made by a state court judge. For example, he seeks an order
“declaring Plaintiffs [sic] right to free unfettered access to filing in the Fulton County
Superior Court is valid and enforceable.” He also seeks an order “declaring the [Judge
Lane]’s August 15, 2014 order of contempt and incarceration on against [sic] the
Plaintiff is void as [Judge] Lane did not have jurisdiction to initially file the order, nor
did she have the discretion based on OCGA § 5-6-13 to deny his worthy filing of an
Application for Supersedeas and Notice of Intent to Appeal.”
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1266, 1268 (11th Cir. 2009). All of the Plaintiff’s requests for declaratory relief would
require this Court to rule that an order of the state court was illegal, unconstitutional,
or invalid, which the Rooker-Feldman doctrine prohibits.
As to the named law clerks, the only one mentioned in the complaints that did
anything to the Plaintiff is Ms. Moore. None of the Plaintiff’s allegations against Ms.
Moore that could be even considered actionable concerns Ms. Moore acting under
color of law. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995)
(“[A]n otherwise private tort is not committed under color of law simply because the
tortfeasor is an employee of the state.”). Certainly, it was not a part of her job
description to engage in ex parte discussions with the Plaintiff. To fall within the
traditional definition of acting under color of state law, a § 1983 defendant must “have
exercised power ‘possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.’” Myers v. Bowman, 713 F.3d
1319, 1329 (11th Cir. 2013) (quoting West v. Atkins, 487 U.S. 42, 49 (1988)). When
she purportedly had him charged with harassment and defamed him,3 she likewise was
not engaged in official activity as she is not officially empowered with the authority

3

To the degree that the Plaintiff might state a claim under state law against
Ms. Moore, this Court points out that, because all of the Plaintiff’s federal claims fail,
this Court either lacks jurisdiction over any such potential state law claims or it
chooses not to exercise supplemental jurisdiction over those claims.
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to arrest. That she reneged on her agreement to provide the Plaintiff with discovery
material and to testify for him simply fails to constitute a constitutional violation.
The Plaintiff makes no claims regarding Chairman Eaves in his individual
capacity. The only allegations that could be considered claims against Chairman Eaves
in his official capacity (as well as claims against Fulton County) relate to the Plaintiff’s
assertions regarding the fact that the family division violates the Georgia Constitution
and the claims that Fulton County does not properly control its judges and court system
and permits the judges to transfer cases in violation of court rules.
Regarding the Plaintiff’s claim that the family division of the Fulton County
Superior Court operates in an ultra vires manner, state law violations are not
cognizable under § 1983. See Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir.
2002) (“While the violation of state law may (or may not) give rise to a state tort claim,
it is not enough by itself to support a claim under section 1983.”). To the degree that
this claim could be considered as stating a due process violation, the Plaintiff admits
that the Georgia Supreme Court authorized the formation of the family division, and
as a matter of federalism and comity, this Court is in no position to “reverse” the
Georgia Supreme Court to conclude that the family division of the Fulton County court
operates in violation of the Georgia Constitution. See supra discussion of the RookerFeldman doctrine.

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This Court further concludes that the Plaintiff’s novel official capacity claims
asserting a right to recover based on county officials’ failure to supervise the Superior
Court is merely an attempt to make an end-run around the immunity that protects
judicial officials; allowing such claims to proceed against Fulton County would have
the effect of eliminating judicial immunity.
Finally, this Court has analyzed the Plaintiff’s claims against Ms. Beacham. She
is not a state official. See Fullman v. Graddick, 739 F.2d 553, 561 (11th Cir. 1984) (to
successfully state a § 1983 claim, the plaintiff must allege that the conduct complained
of was committed by a person acting under color of state law). While a private
individual who conspires with a state official can be subject to § 1983 liability, see
NAACP v. Hunt, 891 F.2d 1555, 1563 (11th Cir. 1990), the Plaintiff’s allegations that
Ms. Beacham conspired with Ms. Moore fail to establish a claim because this Court
has determined that Ms. Moore’s potentially-actionable interactions with the Plaintiff
were not part of her official duties, and allegations that a private party has conspired
with a person acting in a private capacity does not state a claim under § 1983,
Hendrickson v. Cervone, --- Fed. Appx. ---, 2016 WL 5349200 at *6 (11th Cir. Sept.
26, 2016).
Admittedly, as Ms. Beacham has not appeared in this action and has filed no
motion to dismiss, this Court has no basis upon which to dismiss the Plaintiff’s claims

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against her. However, this Court further notes that, in violation of Federal Rule 4(l)(1),
the Plaintiff has failed to file a proof of service demonstrating that Ms. Beacham has
been properly served with process. Accordingly, unless the Plaintiff can demonstrate
that he has properly served Ms. Beacham within 120 days of filing his complaint, this
Court shall dismiss Ms. Beacham from this action pursuant to Rule 4(m).
In summary, this Court concludes that the Plaintiff has failed to state a claim
against all Defendants. In its opinion remanding these cases back to this Court, the
Eleventh Circuit mentioned that “[a] district court’s discretion to dismiss a complaint
without leave to amend is ‘severely restricted,’” [Doc. 36 at 7], possibly implying that
this Court should consider permitting the Plaintiff to amend his complaint prior to
dismissing his claims. “While a pro se litigant must generally be given an opportunity
to amend his complaint, a . . . court need not allow any . . . amendment [that] would
be futile.” Lee v. Alachua Cty., Fl., 461 Fed. Appx. 859, 860 (11th Cir. 2012). “Leave
to amend a complaint is futile when the complaint as amended would still be properly
dismissed.” Id. Having carefully considered the Plaintiff’s factual allegations, this
Court cannot discern how any amendment could possibly establish a viable basis for
relief. This Court thus concludes that an amendment would be futile and leave to
amend is denied.

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III. Conclusion
As discussed, this Court concludes that the Plaintiff has failed to state a claim
for relief. The Defendants’ motions to dismiss are again GRANTED and the abovestyled cases are again DISMISSED, with the exception of the claims against Ms.
Beacham.

With respect to the claims against Ms. Beacham, the Plaintiff is

DIRECTED to file with the Clerk, within one week of the date of this Order, an
affidavit of service demonstrating that Ms. Beacham has been properly served. If the
Plaintiff fails to file a proof of service within one week, the Plaintiff’s claims against
Ms. Beacham are DISMISSED.
SO ORDERED, this 10 day of February, 2017.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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