Licensing Does Not Constitute State Action: Clarifying the State Actor Requirement under 42 U.S.C. § 1983

Introduction

This commentary examines the Tenth Circuit’s decision in Rogers v. Brown, decided April 21, 2025. Plaintiff–appellant Sean Rogers, a state prisoner proceeding pro se, asserted a 42 U.S.C. § 1983 claim against Boot Hill Night Club and its owner, Terry Brown. He alleged that by permitting a minor onto club premises in violation of state law, the defendants indirectly caused his criminal conviction and 17-year incarceration. The district court screened the complaint under the in forma pauperis statutes (28 U.S.C. §§ 1915(e) & 1915A), dismissed it for frivolity and failure to state a viable § 1983 claim, and imposed a “strike” under § 1915(g). On appeal, the Tenth Circuit affirmed, holding that the defendants were private actors and that mere possession of a liquor license does not transform them into state actors for § 1983 purposes.

Summary of the Judgment

In a unanimous, unpublished order, the Tenth Circuit affirmed the district court’s dismissal of Rogers’s complaint. The court applied de novo review to the § 1915(e)(2)(B)(ii) dismissal and construed the pro se allegations liberally. It concluded:

Rogers failed to allege state action because the defendants are private actors, not “clothed with the authority of state law.”
Operating under a state-issued liquor license does not suffice to satisfy the “color of state law” requirement.
Amendment of the complaint would be futile, as the foundational flaw—lack of a state actor—is incurable by additional factual allegations.
Rogers’s motions for reconsideration and to amend were properly denied, and the “strike” under 28 U.S.C. § 1915(g) was correctly imposed.

Analysis

1. Precedents Cited

The court’s reasoning rests heavily on Supreme Court and Tenth Circuit precedents delineating the state-action requirement:

West v. Atkins, 487 U.S. 42 (1988): Establishes § 1983 requires a deprivation by “person acting under color of state law.”
Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982): Defines “fairly attributable” to the state and introduces the traditional two-part test for state action.
Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972): Holds that enforcement of a state regulatory scheme (liquor licensing) does not transform a private club’s discriminatory policies into state action.
Jojola v. Chavez, 55 F.3d 488 (10th Cir. 1995): Affirms that the authority under color of law must be actual or apparent state authority, not mere private conduct regulated by the state.
Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442 (10th Cir. 1995): Emphasizes the “fairly attributable” inquiry for state action analysis.

These authorities collectively underscore that licensing and regulation alone do not suffice to make private conduct state action.

2. Legal Reasoning

The Tenth Circuit applied the two-part test derived from Lugar and refinements in West and Jojola:

Was the challenged conduct “committed by a person acting under color of state law”?
Is the conduct “fairly attributable to the State”?

Rogers’s complaint alleged only that the club held a liquor license. The court found no actual state authority was delegated to the defendants to justify § 1983 liability. Nor did it accept an “apparent authority” theory: a state regulatory scheme does not render private actors state actors, as Moose Lodge instructs. Because the state-action element is jurisdictional, the absence of such allegations doomed the entire claim.

3. Impact

This decision reaffirms the long-standing boundary between private and governmental liability under § 1983. Key implications include:

Private businesses and individuals regulated or licensed by the state cannot be sued under § 1983 solely on that basis.
Pro se plaintiffs must explicitly allege facts demonstrating state action or an applicable exception (e.g., public function, symbiotic relationship) to survive jurisdictional screening.
District courts retain discretion to dismiss for frivolity or failure to state a claim under the § 1915 in forma pauperis screening provisions when the jurisdictional defect is incurable.

Future litigants will confront a higher threshold when attempting to shoehorn private disputes into civil rights claims absent clear delegation of state authority.

Complex Concepts Simplified

Color of State Law: A defendant must be using power “possessed by virtue of state law” (actual or apparent) to be liable under § 1983. Private individuals acting on their own behalf do not meet this test.
State Action: Conduct must be “fairly attributable to the State”—not merely regulated or licensed by the state—but either performed by a public official or by a private party in a close nexus or symbiotic relationship with the state.
In Forma Pauperis Screening: Under 28 U.S.C. §§ 1915(e)(2) & 1915A, courts must dismiss frivolous suits or those failing to state a claim at the outset when a plaintiff proceeds without prepayment of fees.
Strike (28 U.S.C. § 1915(g)): A dismissal for frivolity or failure to state a claim counts as a “strike,” barring future in forma pauperis actions unless the plaintiff is in imminent danger of serious physical harm.

Conclusion

Rogers v. Brown underscores that possession of a state license or subjectivity to state regulation does not alone convert a private actor into a state actor under § 1983. By reaffirming the strict limits on the state-action doctrine, the Tenth Circuit preserves the balance between individual liberty and federal intervention, ensuring that § 1983 remains focused on genuine deprivations by the government or those acting under its color.

Key takeaways:

Licensing alone is insufficient to create state action.
Pro se plaintiffs must allege facts showing an actual or apparent delegation of state power.
Section 1915 screening can swiftly end frivolous civil rights claims lacking jurisdictional prerequisites.

As a persuasive—but not binding—precedent, this case will guide both district and appellate courts in evaluating the state-action threshold and applying the in forma pauperis screening rules.