             Case: 13-14508    Date Filed: 05/08/2014   Page: 1 of 6


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-14508
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:13-cv-01006-TWT



ALEX HIGDON,

                                                               Plaintiff-Appellant,

                                     versus

DAWN R. SMITH,
Esq.,

                                                             Defendant-Appellee.

                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________

                                 (May 8, 2014)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Alex Higdon appeals from the district court’s dismissal of his pro se civil

rights suit, in which he sought damages under 42 U.S.C. § 1983 and under Georgia
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state statutes, against Dawn Smith, who served as a guardian ad litem in his prior

divorce and custody proceedings in Georgia state court. On appeal, Higdon argues

that: (1) Smith acted “under color of state law” when she allegedly committed

fraud in the inducement by misrepresenting her credentials and her affiliation with

the Autism Society of America before he agreed to her appointment; and (2) his §

1983 claims were not barred by the witness immunity doctrine because she was not

acting as a witness when she made the misrepresentations. After careful review,

we affirm.

      As an initial matter, although we liberally construe pro se briefs, “issues not

briefed on appeal by a pro se litigant are deemed abandoned.”            Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008). It is notable that Higdon does not

address his Georgia state claims in the argument section of his brief.           His

arguments expressly and exclusively relate to his § 1983 claims. Consequently, he

has abandoned any arguments as to his state claims. Id.

      We review de novo a district court’s Federal Rule of Civil Procedure

12(b)(6) dismissal for failure to state a claim, taking all alleged facts as true and

construing them in the light most favorable to the plaintiff. Butler v. Sheriff of

Palm Beach Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012) (citation omitted). In

order to overcome a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “a




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claim to relief that is plausible on its face.”      Id. (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)).

      To prevail in a § 1983 suit, a plaintiff must show that the defendant is a state

actor. Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001).

A private party is only considered a state actor in the “rare circumstances” that the

private party meets one of three recognized tests: the State compulsion test, the

public function test, or the nexus/joint action test. Id. (quotation omitted). To meet

the State compulsion test, the state must have “coerced or at least significantly

encouraged” the complained-of action. Id. The public function test requires that

the private party was performing a public function “that was traditionally the

exclusive prerogative of the State.” Id. “[T]he mere fact that a State regulates a

private party is not sufficient to make that party a State actor.” Id. at 1348.

      Under the nexus/joint action test, a private party can be viewed as a state

actor where “the State had so far insinuated itself into a position of

interdependence” with the private party that it was a joint participant in the action.

Id. at 1347 (quotation omitted). To satisfy this third test, the private party must be

“intertwined in a symbiotic relationship” with the government. Focus on Family v.

Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1278 (11th Cir. 2003).             In

Rayburn, we held that foster parents were not state actors under the nexus/joint

action test, even though they arguably were involved in a symbiotic relationship


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with the government, because the state did not encourage or sanction the child

abuse that gave rise to the plaintiff’s claim. 241 F.3d at 1348. We noted that,

under this test, “conduct is fairly attributable only when the [S]tate has had some

affirmative role, albeit one of encouragement short of compulsion, in the particular

conduct underlying a claimant’s civil rights grievance.” Id. (quotation omitted).

      Under Georgia’s Uniform Superior Court Rules, guardians ad litem are

appointed to assist the court in domestic relations cases by representing the best

interests of the children involved. Ga. Unif. Super. Ct. R. 24.9(3). A guardian ad

litem must conduct an investigation and make a recommendation to the court, but a

guardian ad litem’s recommendation is “not a substitute for the court’s independent

discretion and judgment[.]” Id. 24.9(6).

      In Harvey v. Harvey, we addressed whether a person who had been

involuntarily committed could recover under § 1983 from a state-appointed

emergency guardian who recommended her committal. 949 F.2d 1127, 1129-33

(11th Cir. 1992). In that case, we determined that the guardian was not a state

actor for the purposes of § 1983 under the public function test because “Georgia

statutes neither compel nor encourage involuntary commitment.” Id. at 1130-33.

Further, the Georgia statute governing involuntary commitment did not establish a

sufficient nexus between the guardian and the state to render the guardian a state

actor. Id. at 1131-33. Finally, we rejected the plaintiff’s contention that the state


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law that “guid[ed] private participation in this function effectively transforms the

private participant into a state actor,” stating that the guardian’s conduct was not

within the exclusive prerogative of the state. Id. at 1131.

      Here, the district court properly determined that Smith was not a “state

actor” for the purposes of § 1983. In his complaint, Higdon did not allege that the

state coerced or “significantly encouraged” Smith to misrepresent her credentials

and affiliations, nor did he argue that the state coerced her to take any of the other

complained-of conduct. Instead, in his brief to this Court, Higdon emphasized that

Smith had an obligation under state law to be truthful about her credentials and

affiliations. Consequently, Smith is not a state actor under the state compulsion

test. Nor is Smith a state actor under the public function test, as recommendations

regarding custody have not traditionally been within the “exclusive prerogative of

the state.” While the state appoints guardians ad litem for the purposes of such

recommendations, private parties, including expert witnesses, commonly make

custody recommendations. Finally, Smith is not a state actor under the nexus/joint

action test.    Even assuming that Higdon’s allegations establish a symbiotic

relationship between Smith and the government, they did not evidence that the

government encouraged or sanctioned Smith’s particular conduct underlying

Higdon’s claim, namely, her allegedly false representations about her credentials

and affiliations.


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      As in Harvey, Smith was appointed by the state as a guardian, and the state

regulated her conduct. Harvey, 949 F.2d at 1131-33; Ga. Unif. Super. Ct. R. 24.9.

However, contrary to Higdon’s assertions, the fact this regulatory rule exists is not

sufficient to render Smith a state actor for the purposes of § 1983. See Harvey,

949 F.2d at 1131-33; Rayburn, 241 F.3d at 1348. Further, in light of our

determination that Smith was not a state actor for the purposes of § 1983, we need

not reach the issue of the witness immunity doctrine.

      AFFIRMED.




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