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

> Court of Appeals for the Eleventh Circuit · August 7, 2025

URL: https://www.frixlaw.com/law-library/cases/11116308

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** August 7, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11116308

## How later opinions describe it (automated extraction)

- explaining that a complaint must provide sufficient factual allegations that, when taken as true, “raise a right to relief above the speculative level”

## Opinion text

USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 1 of 14

[DO NOT PUBLISH]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.

____________________
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 2 of 14

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.
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 3 of 14

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
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 4 of 14

4 Opinion of the Court 24-14090

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.
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 5 of 14

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
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 6 of 14

6 Opinion of the Court 24-14090

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.
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 7 of 14

24-14090 Opinion of the Court 7

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,
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 8 of 14

8 Opinion of the Court 24-14090

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 . . . .
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 9 of 14

24-14090 Opinion of the Court 9

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.
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 10 of 14

10 Opinion of the Court 24-14090

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).
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 11 of 14

24-14090 Opinion of the Court 11

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)).
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 12 of 14

12 Opinion of the Court 24-14090

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
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 13 of 14

24-14090 Opinion of the Court 13

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.
USCA11 Case: 24-14090 Document: 42-1 Date Filed: 08/07/2025 Page: 14 of 14

14 Opinion of the Court 24-14090

Bank, 92 F.2d at 1112. Accordingly, nothing precludes Simmons
from filing a new complaint if he desires to do so.
AFFIRMED.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11116308. Public record. Not legal advice.