“Every Person” Still Means “State Actor” – The Eleventh Circuit Re-Affirms the State-Action Requirement in § 1983 Suits

Introduction

In Albert Clayton Simmons, II v. American Institute of Certified Public Accountants, No. 24-14090 (11th Cir. Aug. 7, 2025) (non-published), the Eleventh Circuit settled a recurring point of confusion in civil-rights litigation: despite the phrase “Every person” in the text of 42 U.S.C. § 1983, a defendant must still be a state actor (or act under color of state law) before liability attaches. The panel (Branch, Brasher & Kidd, JJ.) affirmed dismissal of a pro se complaint brought by CPA Albert Simmons against four defendants:

The Georgia State Board of Accountancy (“State Board”);
Two professional associations, the American Institute of Certified Public Accountants (“AICPA”) and the Georgia Society of CPAs (“GSCPA”); and
Green, Mosier & Kemp, LLC (“GMK”), a private CPA firm that performed a peer review of Simmons’s compilation engagements.

Simmons alleged that compulsory peer review of his compilation work violated constitutional rights, and he sought an injunction ending peer review nationwide, renewal of his license, and damages. The District Court dismissed on sovereign-immunity grounds (as to the State Board) and for failure to state a claim (§ 1983 state-action deficiency) as to the private defendants. The Eleventh Circuit affirmed, clarifying doctrinal points on sovereign immunity, waiver/abandonment on appeal, and pleading requirements for state action.

Summary of the Judgment

The Court rendered three principal holdings:

Sovereign Immunity Upheld. The Georgia State Board of Accountancy, as an arm of the State, enjoys Eleventh-Amendment immunity. Simmons abandoned any challenge to this ruling by not discussing it in his opening brief.
Private Actors Not Liable Under § 1983 Absent State Action. AICPA, GSCPA, and GMK are private entities; Simmons’s complaint contained no plausible allegations that they acted under color of state law under any of the Eleventh Circuit’s three tests (public-function, state-compulsion, or nexus/joint-action). Consequently, dismissal under Fed. R. Civ. P. 12(b)(6) was proper.
Pleading and Appellate Procedure Reinforced. A litigant who fails to brief an issue in the initial appellate brief waives it; a pro se plaintiff must supply factual allegations showing state action rather than rely on conclusory accusations of conspiracy; and a dismissal on immunity grounds is presumed without prejudice, leaving the door open to a properly pleaded new action.

Analysis

A. Precedents Cited and Their Influence

The judgment draws on a familiar but potent set of authorities:

Ex parte Young, 209 U.S. 123 (1908) – establishes the prospective-injunctive-relief exception to sovereign immunity; Simmons invoked it unsuccessfully.
Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008) – reiterates waiver of issues not briefed by a pro se appellant; used to find abandonment of Simmons’s sovereign-immunity argument.
12(b)(6) Triad: Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) & Ashcroft v. Iqbal, 556 U.S. 662 (2009) – plausibility pleading; Chaparro v. Carnival Corp., 693 F.3d 1333 (11th Cir. 2012) – applies plausibility to maritime torts; all used to show Simmons’s allegations were too conclusory.
Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341 (11th Cir. 2001) – survey of state-action tests; central to the Court’s § 1983 analysis.
American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40 (1999) – “mere approval or acquiescence” by a State is not enough for state action.
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014) – details abandonment rules.
Dupree v. Owens, 92 F.4th 999 (11th Cir. 2024) – clarifies that immunity dismissals are jurisdictional and thus without prejudice.

Together these precedents formed a doctrinal chain: plaintiff must (1) name a defendant who is not immune, (2) plead plausible facts showing that defendant deprived him of a federal right, and (3) show the defendant acted under color of state law. Simmons cleared none of those hurdles.

B. Court’s Legal Reasoning

Eleventh-Amendment Shield for the State Board.
The State Board is a classic state agency; absent congressional abrogation or state waiver, it cannot be sued for damages in federal court. Simmons cited Ex parte Young but that doctrine requires suing state officials in their official capacity for prospective relief. He sued the Board itself. Moreover, abandonment disposed of the matter on appeal—an example of procedural rules trumping substantive interests.
No State Action by AICPA, GSCPA, or GMK.
• Public-Function Test: Certifying accountants or conducting peer review is not a function “traditionally exclusive” to the state.
• State-Compulsion Test: Simmons alleged that the Board “effectively gave law-making power” to AICPA, but the complaint conceded that the Board did not supervise AICPA. Mere regulatory reference to AICPA standards is not coercion.
• Nexus/Joint-Action Test: No factual particulars of joint decision-making, coordination, or financial entanglement were pleaded.
Because Simmons’s factual narrative was threadbare and largely rhetorical, the Court held that his claims were “‘merely consistent with’ liability” and therefore implausible.
Pleading Standards and Opportunity to Amend.
The Court noted that district courts must permit amendment before a with-prejudice dismissal of a pro se complaint. While the order did not say “without prejudice,” appellate practice presumes it, preserving Simmons’s right to re-file if he can fix the state-action deficiency.

C. Potential Impact of the Decision

Professional Associations’ Liability Curtailment. The ruling fortifies a protective perimeter around private professional bodies that set industry standards, making clear that adoption of those standards by a state regulator does not, by itself, convert the body into a state actor.
Guidance for Future § 1983 Pleading. Plaintiffs must articulate how the private entity’s decision can be imputed to the State—bare allegations of “monopoly” or “delegation” will not suffice. The decision will likely be cited at the motion-to-dismiss stage in cases involving contractors, accrediting agencies, or peer-review organizations.
Pro Se Litigation Strategy. The abandonment analysis is a stark reminder: appellate courts expect pro se litigants to follow briefing rules. Even meritorious immunity arguments will be forfeited if left undeveloped.
State Boards and Delegated Regulation. The opinion tacitly affirms the legality of regulatory models that reference private standards (AICPA, NFPA, ANSI, etc.) without converting the standard-setters into state actors. This will be welcomed by states that rely heavily on private expertise to flesh out technical regulations.

Complex Concepts Simplified

1. State Action / “Under Color of State Law”

Section 1983 is aimed at misuse of governmental power. A private company or individual can be sued under § 1983 only if its conduct is fairly attributable to the State. The Eleventh Circuit uses three tests: (1) public function, (2) state compulsion, (3) nexus or joint action. Failing all three means no state action.

2. Sovereign (Eleventh-Amendment) Immunity

States and their agencies cannot be sued in federal court without consent. Ex parte Young lets plaintiffs sue state officials (not the State itself) for forward-looking relief, but the plaintiff must name the proper official and seek an injunction, not damages.

3. Plausibility Pleading (Twombly/Iqbal)

A complaint must include enough factual matter to create a “reasonable inference” of liability. Labels, conclusions, and speculative statements are discarded. Courts draw a line between factual assertions (accepted as true) and legal conclusions (ignored).

4. Abandonment on Appeal

If an appellant (even pro se) does not discuss an issue in the opening brief with arguments and citations, the appellate court treats it as forfeited. Raising it in a reply brief is too late.

5. Without Prejudice vs. With Prejudice

A dismissal “without prejudice” allows the plaintiff to try again with a better-pleaded complaint; “with prejudice” is final. Immunity-based dismissals are jurisdictional, hence without prejudice unless expressly stated otherwise.

Conclusion

Simmons v. AICPA is not a headline-grabbing constitutional blockbuster, yet it solidifies bedrock concepts that quietly govern thousands of civil-rights cases each year. By reaffirming that “every person” in § 1983 still must be a state actor, the Eleventh Circuit preserves the boundary between public accountability and private autonomy. The decision also underscores procedural rigor—abandonment rules and plausibility standards remain unforgiving, even toward pro se litigants. Practitioners contemplating suits against private standard-setting or peer-review entities must now plead detailed facts showing how the State’s hand guided the challenged conduct; mere regulatory reference to private standards will not suffice. The ruling thus provides both a doctrinal checkpoint and a practical roadmap for future § 1983 litigation in the Eleventh Circuit and beyond.