Hugh McGinley, Gillian McGinley vs State of Florida Dept of Highway Safety and Motor Vehicles, Mark Ober

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15240 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 8, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cv-00032-VMC-AEP
HUGH MCGINLEY, Individually, and as Personal
Representative of the Estate of Kevin P. McGinley,
GILLIAN MCGINLEY,
llllllllllllllllllllllllllllllllllllllll Plaintiffs–Appellants,
versus
STATE OF FLORIDA DEPARTMENT OF
HIGHWAY SAFETY AND MOTOR VEHICLES,
FLORIDA HIGHWAY PATROL,
MARK OBER, State Attorney for the
Thirteenth Judicial Circuit of the State of Florida,
llllllllllllllllllllllllllllllllllllllll Defendants–Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 8, 2011)
Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Kevin P. McGinley died the morning of February 13, 1998 after being
struck by a UPS truck on Interstate 275 in Tampa, Florida. On November 10,
2008, Kevin’s parents, Hugh and Gillian McGinley, sued the Florida Highway
Patrol (FHP) and Mark Ober, in his capacity as State Attorney, in Florida state
court under 42 U.S.C. § 1983. The McGinleys alleged that the FHP and Ober
violated their constitutional rights by denying them access to the courts as a result
of their grossly negligent investigations into Kevin’s death. Had the FHP’s
investigation not been grossly negligent, the McGinleys contend that they could
have pursued a wrongful death action against the people they believe are
responsible for Kevin’s death. And had Ober’s investigation not been grossly
negligent, the McGinleys contend that those responsible for Kevin’s death would
have been criminally prosecuted. The defendants removed the case to federal
court and moved to dismiss the case. The plaintiffs responded and asked for leave
to amend in the event that the court decided to dismiss their complaint. The
district court dismissed the McGinleys’ lawsuit because it found that they had filed
suit outside the statute of limitations and denied leave to amend. We affirm in part
and dismiss in part, but for different reasons.1
1
We may affirm on any ground supported by the record. Ironworkers Local Union 68 v.
AstraZeneca Pharms., LP, 634 F.3d 1352, 1360 (11th Cir. 2011).
I.
Section 1983 allows claims against any person who, acting under color of
state law, deprives another of a constitutional or federal statutory right. 42 U.S.C.
§ 1983. But a state or state agency is not a “person” against whom a § 1983 claim
may be brought. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1981). The
Florida Highway Patrol is a state agency, and as such the McGinleys can not bring
a § 1983 claim against it.2 Accordingly, they have failed to state a claim upon
which relief can be granted and the district court did not err in dismissing the
McGinley’s claim against the FHP.
II.
We now turn to the McGinleys’ § 1983 claim against Ober. The McGinleys
claim that had Ober thoroughly investigated their son’s death, he would have
brought criminal charges against those people who the McGinleys believe are
responsible. Ober’s decision not to prosecute, however, did not legally injure the
McGinleys and thus they do not have standing to sue him.3
In order to prevail on a § 1983 action for denial of access to the courts, a
2
The plaintiffs allege in their complaint that the FHP is a state agency, and we would be
hard pressed to conclude otherwise even if they did not.
3
Although the defendants did not raise this argument, we are nonetheless obligated to
consider whether we have subject-matter jurisdiction. AT&T Mobility, LLC v. Nat’l Assoc. for
Stock Car Auto Racing, Inc., 494 F.3d 1356, 1360 (11th Cir. 2007).
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plaintiff must show that he had a right of access to the courts that was denied as a
result of interference by state actors. Chappell v. Rich, 340 F.3d 1279, 1283 (11th
Cir. 2003). Although the McGinleys could have brought a wrongful death suit
against those people they believed responsible for Kevin’s death, the McGinleys
could not have brought criminal charges against them. See Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another.”); State v. Cain, 381 So.2d
1361, 1367 (Fla. 1980) (“[T]he discretion of a prosecutor in deciding whether and
how to prosecute is absolute in our system of criminal justice.”). Because only
Ober could have brought charges, the McGinleys did not have a right of access to
the courts to bring criminal charges and they suffered no legal injury as a result of
his actions. And without a legal injury the McGinleys are without standing to
pursue this claim. Amnesty Int’l USA v. Battle, 559 F.3d 1170, 1177 (11th Cir.
2009). Therefore we do not have jurisdiction and we must dismiss that claim.
III.
We review the district court’s decision to not allow the McGinleys to amend
their complaint for abuse of discretion and the district court’s conclusion that leave
to amend would be futile de novo. Corsello v. Lincare, Inc., 428 F.3d 1008, 1012
(11th Cir. 2005).
4
In this case, the district court denied leave to amend and concluded that
filing an amended complaint would be futile because it would still fall outside the
statute of limitations. In our circuit a request for leave to amend is not properly
made when it is “imbedded within an opposition memorandum,” as it was here.
Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009) (quoting Posner v. Essex
Ins. Co., 178 F.3d 1209, 1222 (11th Cir. 1999)). But even if it had been, a plaintiff
must set forth the substance of the proposed amendment or attach a copy of the
proposed amended complaint. Atkins v. McInteer, 470 F.3d 1350, 1362 (11th Cir.
2006). The plaintiffs here did neither and as such the district court properly
exercised its discretion in denying leave to amend.
AFFIRMED in part, DISMISSED in part.
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