                                                                    [DO NOT PUBLISH]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).

                                                3
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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