Albert Clayton Simmons, II v. American Institute of Certified Public Accountants

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-14090

Non-Argument Calendar

____________________

ALBERT CLAYTON SIMMONS, II,

Plaintiff-Appellant,

versus

AMERICAN INSTITUTE OF CERTIFIED PUBLIC

ACCOUNTANTS,

GEORGIA SOCIETY OF CPA'S,

GEORGIA STATE BOARD OF ACCOUNTANCY,

GREEN, MOSIER & KEMP, LLC,

Defendants-Appellees.

____________________

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2 Opinion of the Court 24-14090

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:24-cv-01789-MHC

____________________

Before BRANCH, BRASHER, and KIDD, Circuit Judges.

PER CURIAM:

Albert Simmons, proceeding pro se, appeals from the

dismissal of his 42 U.S.C. § 1983 suit against the American Institute

of Certified Public Accountants (“AICPA”), the Georgia Society of

Certified Public Accountants (“GSCPA”), the Georgia State Board

of Accountancy (“the State Board”), and Green, Mosier & Kemp,

LLC (“GMK”), for various alleged violations relating to Simmons’s

certified public accountant (“CPA”) license. The district court

dismissed the claims against the State Board based on sovereign

immunity and the claims against the remaining defendants for

failure to state a claim upon which relief could be granted.

Simmons contends that the district court erred in dismissing his

complaint for a number of reasons. After careful review, we affirm.

I. Background

In April 2024, Simmons filed a pro se § 1983 complaint against

the defendants. Liberally construing the complaint,1 Simmons

alleged that he was issued a CPA license in 1975 by the State of

1 The complaint’s allegations are long, unclear, and at times difficult to follow.

We have done our best to accurately convey Simmons’s allegations.

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24-14090 Opinion of the Court 3

Georgia, and had “continually renewed his license until now.”

Simmons mainly did tax work but he had also “prepared

‘compilation’ financial statements for some clients.” 2 Compilation

services “is one of three services” where peer review is required in

Georgia.

Simmons alleged that the AICPA and GSCPA are “private

business clubs” with no legal authority. However, the State Board

“effectively gave law-making authority to the AICPA” by allowing

the AICPA to establish “professional standards” and create the peer

review program. Simmons took issue with the legality of the

AICPA and the AICPA Peer Review Program, accusing the AICPA

of creating an unlawful “monopoly” and having no legal authority.

He alleged that he was forced to participate in the AICPA peer

review program or risk losing his CPA license, which he

maintained was “a valuable property interest that [was] protected

by the Constitution.” The peer review committee allegedly forced

him to use certain unspecified language in his engagement letters

that amounted to “extortion” of his clients, and “forced a change in

the services he can offer and a reduction in future income.” He

further alleged that he “suffered trauma from the threat to his CPA

license and livelihood”; 3 “was forced to pay many thousands in fees

2 Simmons alleged that “[c]ompilation is the current term for financial

statements—primarily a balance sheet and income statement—that have not

been audited or reviewed by a CPA.”

3 It is unclear from the complaint whether his license was in fact suspended or

otherwise revoked. In his prayer for relief, Simmons requests an order

directing the State Board to renew his CPA license, which suggests that it may

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to the AICPA and reviewing CPA firms for many years”; and spent

“considerable time and expense to prepare for and go through the

peer reviews.” With regard to GSCPA, he alleged only that a

manager at GCSPA stated that “[t]he only way to have peer review

is through the AICPA” and had “threat[ened] to fail [his] peer

review.” 4

As for GMK, Simmons alleged that GMK was “the CPA firm

that did the review of [his] compilations and engagement letters,”

and were “merely agents/deputies/instruments of the AICPA in

peer review,” and are required to follow the AICPA’s “peer review

manuals and checklists.”

Based on the foregoing, he asserted that the defendants

conspired against him to interfere with his rights, and the peer

review program violated (1) the non-delegation clause of the

Constitution; (2) the Fourth Amendment prohibition on searches

and seizures without a warrant; (3) his First Amendment right to

freedom of speech, and (4) his right to contract under the

Constitution. As relief, he requested that the district court (1) order

the State Board to renew his CPA license; (2) order the termination

have been suspended or revoked. But then he states in parentheses that “[t]he

license may still be in jeopardy,” which suggests that no adverse action was

taken and that he is still undergoing the peer review process.

4 Simmons’s complaint focused primarily on the AICPA and did not contain

any detailed allegations about GSCPA or what role it plays in the peer review

process.

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24-14090 Opinion of the Court 5

of CPA peer review in all states; and (3) compensatory and punitive

damages.

The defendants moved to dismiss the complaint on various

grounds. The State Board moved to dismiss the claims against it

based on sovereign immunity. GMK, AICPA, and GSCPA moved

to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(1) and

(b)(6), because, among other grounds, (1) they are private entities,

not state actors, and they thus could not be liable under § 1983; and

(2) Simmons’s complaint failed to state a claim upon which relief

could be granted.

In response, Simmons argued that the State Board “forfeited

its immunity by violating Georgia law and the Georgia

Constitution,” citing Ex Parte Young, 209 U.S. 123 (1908). He then

argued that GMK, AICPA, and GSCPA misunderstood the law

because there was no state actor requirement under § 1983. And

he reiterated the merits of his claims.

Following replies by the defendants, the district court

granted the motions to dismiss. The district court concluded that

the State Board was entitled to sovereign immunity under the

Eleventh Amendment because it was an arm of the State, and the

exception in Ex Parte Young did not apply. With regard to the

AICPA and GSCPA, the district court concluded that they could

not be liable under § 1983 because they were private parties and

“nothing in Simmons’s Complaint suggest[ed] that [they] acted

under color of state law.” Finally, the district court concluded that

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Simmons’s conclusory allegations failed to state a claim upon

which relief could be granted against GMK.

Simmons filed a motion for reconsideration, followed by a

supplemental motion for reconsideration, which the district court

denied. Simmons filed a timely notice of appeal.

II. Discussion

Simmons argues that there is no state actor requirement

under § 1983, noting that the statute refers to “every person.”

Alternatively, he maintains that the defendants acted under color

of state law. 5

A. Simmons’s Claims Against the State Board

The district court dismissed Simmons’s claim against the

State Board after concluding that the board was entitled to

sovereign immunity under the Eleventh Amendment. On appeal,

the State Board argues that Simmons has abandoned any challenge

to the district court’s sovereign immunity ruling by failing to

address it in his initial brief. Simmons in reply argues that he did

not abandon his challenge to the district court’s dismissal of the

State Board because he mentioned the State Board at various points

in his initial brief on appeal. He maintains that the State Board was

not entitled to immunity under the exception in Ex Parte Young.

5 Simmons’s briefing largely focuses on the merits of his underlying claims and

reiterates the allegations in his complaint. We do not reach these issues and

focus solely on the dismissal order.

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After careful review, we agree that Simmons has abandoned his

challenge to the sovereign immunity ruling.

“Pro se pleadings are held to a less stringent standard than

pleadings drafted by attorneys and will, therefore, be liberally

construed.” Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)

(quotations omitted). Nevertheless, “[w]hile we read briefs filed by

pro se litigants liberally, issues not briefed on appeal by a pro se

litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870,

874 (11th Cir. 2008) (citations omitted). “Issues raised in a

perfunctory manner, without supporting arguments and citation

to authorities, are generally deemed to be waived.” N.L.R.B. v.

McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998); see also

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir.

2014) (“We have long held that an appellant abandons a claim

when he either makes only passing references to it or raises it in a

perfunctory manner without supporting arguments and

authority.”).

Here, although Simmons is correct that he mentions the

State Board in his initial brief, he does so in the context of his factual

allegations, his summary of the procedural history of the case, and

his discussion of the merits of his claims. He does not, however,

make any argument regarding the sovereign immunity dismissal.

Nor does he cite any case law related to the sovereign immunity

analysis. While Simmons clearly challenges the sovereign

immunity holding in his reply brief and cites relevant legal

authorities, this is not sufficient to preserve our review. Sapuppo,

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739 F.3d at 683. “[W]e do not address arguments raised for the first

time in a pro se litigant’s reply brief.” Timson, 518 F.3d at 874.

Accordingly, we conclude that Simmons abandoned any challenge

to the sovereign immunity dismissal.

B. Simmons’s Claims Against the Remaining Defendants

Simmons argues that the dismissal of his claims against

AICPA, GSCPA, and GMK was inappropriate because § 1983 does

not require a state actor because the statute refers to “every

person.”6 We disagree and conclude that dismissal was proper

because Simmons failed to include allegations in his complaint that

would plausibly permit an inference of state action by AICPA,

GSCPA, or GMK.

To prevent dismissal under Rule 12(b)(6), the plaintiff must

allege sufficient facts to state a claim for relief that is “plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

6 Section 1983 provides that:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . . .

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009); Twombly, 550 U.S. at 555 (explaining that

a complaint must provide sufficient factual allegations that, when

taken as true, “raise a right to relief above the speculative level”).

“Factual allegations that are merely consistent with a defendant’s

liability fall short of being facially plausible.” Chaparro v. Carnival

Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (quotation omitted).

“We review de novo the district court’s grant of a motion to

dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6),

accepting the allegations in the complaint as true and construing

them in the light most favorable to the plaintiff.” Timson, 518 F.3d

at 872.

Simmons’s contention that § 1983 does not require state

action is based on a misunderstanding of the requirements of

§ 1983. “In order to prevail on a civil rights action under § 1983, a

plaintiff must show that he . . . was deprived of a federal right by a

person acting under color of state law.” 7 Griffin v. City of Opa-Locka,

261 F.3d 1295, 1303 (11th Cir. 2001). The “under color of state law”

requirement in § 1983 means that “§ 1983 only provides for claims

to redress State action.” Rayburn ex rel. Rayburn v. Hogue, 241 F.3d

1341, 1347 (11th Cir. 2001); see also Am. Mfrs. Mut. Ins. Co. v. Sullivan,

7 Simmons also takes issue with the fact that the district court never addressed

his alleged deprivation of rights for purposes of § 1983, which he contends “is

the most important part of 42 U.S.C. [§] 1983.” The district court did not err

in failing to address this element. It was not necessary for the district court to

address whether Simmons had shown a deprivation of a federal right if he

could not satisfy the state action element.

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526 U.S. 40, 50 (1999) (“[T]he under-color-of-state-law element of

§ 1983 excludes from its reach merely private conduct, no matter

how discriminatory or wrongful.” (quotations omitted)). “Should

[the district court] conclude that there is no State action, [it] must

dismiss the [plaintiff’s] claim . . . . ” Rayborn, 241 F.3d at 1347.

“For a defendant’s actions to be fairly attributable to the

state, first, the deprivation must be caused by the exercise of some

right or privilege created by the State or by a rule of conduct

imposed by the State or by a person for whom the State is

responsible.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)

(alteration adopted) (quotation omitted). “Second, the party

charged with the deprivation must be a person who may fairly be

said to be a state actor.” Id. (quotations omitted).

Private actors may be deemed to have acted under color of

state law, but “[o]nly in rare circumstances.” Id. We employ three

distinct tests for determining whether a private party acted under

color of state law: (1) the public function test, “where private actors

are performing functions traditionally the exclusive prerogative of

the state”; (2) the state compulsion test, which applies to situations

“where the government has coerced or at least significantly

encouraged the action alleged to violate the Constitution”; and

(3) the nexus/joint action test, “where the state has so far

insinuated itself into a position of interdependence with the

[private party] that it was a joint participant in the enterprise.”

Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263,

1277 (11th Cir. 2003) (quotations omitted).

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Simmons failed to allege facts in his complaint that plausibly

demonstrated that AICA, GSCPA, or GMK were state actors. 8

Simmons conceded in his complaint that the AICPA, GSCPA, and

GMK were all private entities. However, he failed to allege

plausible facts that tended to show state action by those private

entities. With regard to AICPA, he alleged that it lacked legal

authority and was an unlawful monopoly because it was the “only

accepted administering entity for peer review.” He asserted that

the State Board “effectively gave law-making authority to the

ACIPA when it said that CPA’s must follow ‘professional standards’

established by the AICPA.” He also alleged that “the State Board

does not actually oversee the work of the AICPA or GSCPA.” At

most, these allegations suggest that the State approved or

acquiesced in AICPA’s actions, which is insufficient to plausibly

show state action on the part of AICPA. See Am. Mfrs. Mut. Ins. Co.,

526 U.S. at 52 (“Action taken by private entities with the mere

approval or acquiescence of the State is not state action.”). Thus,

Simmons failed to provide sufficient factual allegations with regard

to AICPA in his complaint that, when taken as true, “raise a right

to relief above the speculative level.” Twombly, 550 U.S. at 555.

With regard to GSCPA, he alleged only that a manager at

GCSPA stated that “[t]he only way to have peer review is through

8 Although the district court did not expressly hold that GMK was not a state

actor, we may affirm on any basis supported by the record. Isaiah v. JPMorgan

Chase Bank, 960 F.3d 1296, 1305 n.7 (11th Cir. 2020) (“We can affirm on any

basis supported by the record, regardless of whether the district court decided

the case on that basis.” (quotations omitted)).

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the AICPA” and had “threat[ened] to fail [his] peer review.” As for

GMK, he alleged only that it was the “CPA firm that did the review

of [his] compilations and engagement letters,” and that GMK was

merely an agent of AICPA. These conclusory allegations do not

permit an inference that GSCPA or GMK were acting under color

of state law. 9 Twombly, 550 U.S. at 555.

And although he alleged generally that the AICPA, GSCPA,

and GMK conspired with the State Board to interfere with his rights

by threatening loss of his CPA license, his conclusory allegations

were insufficient to transform the private entities into state actors.

See Harvey, 949 F.2d at 1133 (“For purposes of 42 U.S.C. § 1983, the

plaintiff must plead in detail, through reference to material facts,

the relationship or nature of the conspiracy between the state

actor(s) and the private persons.”).

Accordingly, because Simmons failed to allege factual

allegations that plausibly established state action on the part of

AICPA, GSCPA, or GMK, the district court was required to dismiss

his § 1983 complaint. 10 Rayborn, 241 F.3d at 1347 (“Should [the

9 Although Simmons alleges in his brief on appeal that the defendants acted

under color of state law because CPA peer review “is an act of law

enforcement” that “is traditionally the responsibility of the state” and that the

defendants acted in concert with the state, he failed to make these allegations

in his complaint. Thus, these belated allegations do not aid him in showing

that his complaint plausibly stated a claim for relief.

10 Simmons also argues that the district court’s dismissal of his complaint “was

biased, faulty, and fraudulent” because the district court made false statements

from cases, cited cases not relied upon by the parties (which he contends is a

felony), and made statements that demonstrated the court was biased against

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district court] conclude that there is no State action, [it] must

dismiss the [plaintiff’s] claim . . . . ”).

Finally, we note that the district court did not specify

whether its dismissal was with or without prejudice. We presume

it was without prejudice for two reasons. First, a dismissal on

jurisdictional grounds, such as sovereign immunity, is “not [a]

judgment[] on the merits and [is] to be entered without prejudice.”

Dupree v. Owens, 92 F.4th 999, 1007 (11th Cir.), cert. denied, 145 S.

Ct. 225 (2024). Second, where a more carefully drafted complaint

might state a claim, the district court abuses its discretion if it does

not provide a pro se plaintiff at least one opportunity to amend

before the court dismisses with prejudice. See Woldeab v. DeKalb

Cnty. Bd. of Educ., 885 F.3d 1289, 1291–92 (11th Cir. 2018); see also

Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (same), overruled in

part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 543

& n.1 (11th Cir. 2002) (en banc). This rule applies even when the

plaintiff does not seek leave to amend the complaint in the district

court or seeks leave to amend after the court renders judgment.

Simmons. We disagree. We have reviewed the district court’s opinion and

there is no indication that the court was biased against Simmons or made false

statements. We note that the district court is not limited to the legal

authorities proffered by the parties. Further, any bracketed information used

by the district court as part of quoting material from legal authorities is part of

formal legal citation style and, contrary to Simmons’s contentions, does not

render the quoted materially false.

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Bank, 92 F.2d at 1112. Accordingly, nothing precludes Simmons

from filing a new complaint if he desires to do so.

AFFIRMED.