Pengelly v. Family Court of the Third Circuit, State of Hawaii et al

Filing 36

ORDER Granting Defendant Ernie Gianotti's Motion to Dismiss."Delroy may file an Amended Complaint asserting claims against Gianotti no later than December 29, 2017. Failure to file by that deadline will cause this action to be automatically dismissed. In the event of such automatic dismissal, Delroy may, at his option, seek to litigate any cognizable claims he may have in state court." Signed by JUDGE SUSAN OKI MOLLWAY on 11/20/17. (cib, )CERTIFICATE OF SE RVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DELROY PENGELLY,

)
)
Plaintiff,
)
)
vs.
)
STATE OF HAWAII, FAMILY COURT )
)
OF THE THIRD CIRCUIT;
)
MARGARITA PENGELLY AND OBO
)
MINOR CHILD; EDWARD J.S.F.
)
SMITH; ERNIE F. GIANOTTI;
)
ROBERT D.S. KIM,
)
)
Defendants.
_____________________________ )

Civ. No. 17-00306 SOM-KJM
ORDER GRANTING DEFENDANT
ERNIE GIANOTTI’S MOTION TO
DISMISS

ORDER GRANTING DEFENDANT ERNIE GIANOTTI’S MOTION TO DISMISS
I.

INTRODUCTION.
Plaintiff Delroy Pengelly (“Delroy”), 1 proceeding pro

se, has filed a Complaint alleging that two of his former
attorneys, his estranged wife, her attorney, and a Hawaii Family
Court violated his Fifth and Fourteenth Amendment rights and
various Hawaii statutes.

Before the court is a motion to

dismiss by one of Delroy’s former attorneys, Ernie Gianotti.
The court grants Gianotti’s motion as to thed federal claims,
and declines to exercise supplemental jurisdiction over the
remaining state-law claims.

The court decides the motion

without a hearing pursuant to Local Rule 7.2(d).

1

The court refers to Delroy by his first name because his wife,
Margarita Pengelly, is also a party.

II.

BACKGROUND.
In the Complaint, Delroy names as Defendants his

estranged wife, Margarita Pengelly; her attorney, Robert Kim;
two of Delroy’s previous attorneys, Edward Smith and Ernie
Gianotti; Hawaii Family Court Judge Aley K. Auna Jr.; and the
State of Hawaii Family Court of the Third Circuit (“Hawaii
Family Court”).

ECF 1, PageID # 1.

In an order on October 18, 2017, this court granted
motions to dismiss made by Defendants Kim, Smith, Judge Auna,
and the Hawaii Family Court.

See ECF 31.

Much of what is

stated in that order applies here, and to that extent the prior
order is incorporated here, supplemented by the present
discussion relating particularly to Gianotti.
In a filing on November 17, 2017, Delroy stated that
he is appealing the October 18, 2017 order, see ECF 34, but, as
the court explains below, the order appealed from is nonfinal,
and not yet appealable.

Any appeal therefore does not divest

this court of jurisdiction.
A.

Allegations Regarding Gianotti.

According to the Complaint, on July 15, 2016,
Margarita Pengelly went to the Hawaii Family Court to request a
temporary restraining order (“TRO”) against Delroy.
PageID #s 3, 5.

ECF 1,

At the TRO hearing, Margarita allegedly

“provided four false witnesses to testify” against Delroy.
2

Id.

at PageID # 3.

It is not clear who the witnesses were.

See id.

During the proceeding, Delroy’s attorney, Ernie Gianotti,
allegedly failed to “show a willingness to work on [Delroy’s]
behalf” and “refus[ed] to effectively cross examine” the
witnesses.
id.

Id.

Judge Aley K. Auna Jr. granted the TRO.

See

There are no further factual allegations relating to

Gianotti.

See id.
The Complaint asserts four claims for relief against

“the Defendants,” id. at PageID #s 7-11, by which Delroy
apparently means all Defendants, including Gianotti. 2

First,

Defendants violated Delroy’s Fifth and Fourteenth Amendment
rights by depriving him of income and his emotional bond with
his child without due process of law.

Id. at PageID # 8.

Second, Defendants were part of a civil conspiracy to deprive
Delroy of his assets.

Id. at PageID # 9.

Third, Defendants

“engage[d] in overt acts [of] fraud” while using the legal
system to further their conspiracy.

Id. at PageID #s 9-10.

Fourth, Defendants intentionally inflicted emotional distress on
Delroy.

Id. at PageID #s 10-11.

$75,000 per claim in damages.

The Complaint seeks more than

Id. at PageID #s 7-11.

2

Gianotti argues that the Complaint does not allege that he, in
particular, violated Delroy’s constitutional rights. See ECF
27, PageID # 129. The court disagrees. When a pro se complaint
labels various individuals and entities “Defendants,” and
asserts claims for relief against “the Defendants,” it is not a
stretch to read it as proceeding against all of the individuals
labeled “Defendants.”
3

The court construes the federal claims in the
Complaint as proceeding under 42 U.S.C. § 1983, for the same
reasons expressed in its order on October 18, 2017.

See ECF 31.

The court has discretion to exercise supplemental jurisdiction
over the state-law claims.
B.

See 28 U.S.C. § 1367.

Gianotti’s Filings.

Gianotti moved to dismiss on September 20, 2017.
27.

ECF

His motion incorporated by reference a scheduling

conference statement filed on August 14, 2017.

See ECF 24.

In

both filings, Gianotti argued that the Complaint should be
dismissed pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure.

See ECF 24, PageID #s 121-22; ECF 27,

PageID # 127.
III.

STANDARD UNDER RULES 12(b)(1) AND 12(b)(6).
This court’s order on October 18, 2017, sets forth the

applicable standard of review.
IV.

See ECF 31.

ANALYSIS.
A.

The Court Has Subject Matter Jurisdiction.

As explained in the order on October 18, 2017, subject
matter jurisdiction exists given the presence of a federal
question.

See ECF 31.
On November 17, 2017, Delroy filed a notice of appeal

indicating that he was appealing this court’s order of October
18, 2017.

See ECF 34.

The court’s prior order dismissed claims
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against some but not all Defendants, and gave Delroy an
opportunity to submit an Amended Complaint by December 29, 2017.
See ECF 31.

Because the court has not yet entered judgment in

this case, Delroy’s attempted appeal is from a nonfinal ruling.
A premature appeal does not divest this court of jurisdiction.
See Stevenson v. Grentec, Inc., 652 F.2d 20, 22 (9th Cir. 1981).
B.

Rooker-Feldman Does Not Divest the Court of
Jurisdiction.

Gianotti argues that the Rooker-Feldman doctrine
renders Delroy’s Complaint defective.

See ECF 24, PageID # 121.

For the same reasons articulated in the order on October 18,
2017, the court concludes that Rooker-Feldman does not apply
here, as Delroy is not seeking review of a “final” state court
order.

See ECF 31.
C.

The Complaint Fails to Establish that Gianotti
Acted “Under Color of State Law.”

Gianotti argues that the constitutional claims against
him must be dismissed because he is not a state actor.
24, PageID # 122.

See ECF

The court phrases the pleading defect in

slightly different language: because the court construes
Delroy’s Complaint as proceeding under 42 U.S.C. § 1983, the
question is whether the Complaint establishes that Gianotti
acted “under color of state law.”

See Johnson v. Knowles, 113

F.3d 1114, 1117 (9th. Cir 1997) (explaining that to state a
§ 1983 claim, “[p]laintiffs must plead two essential elements:
5

1) that the Defendants acted under color of state law, and 2)
that the Defendants caused them to be deprived of a right
secured by the Constitution and the laws of the United States”).
The issues of “state actor” and “under color of state law” are
related, though, as the Ninth Circuit has explained that the
“under color of state law” question tracks the state actor
inquiry “posed in cases arising under the Fourteenth Amendment.”
Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835
(9th Cir. 1999) (quoting Rendell-Baker v. Kohn, 457 U.S. 830,
838 (1982)) (addressing RFRA’s “under color of state law”
requirement, which the court held mirrors that in § 1983).
According to the Complaint, Gianotti participated in a
civil conspiracy to deprive Delroy of his assets.
# 9.

ECF 1, PageID

The Complaint alleges that Gianotti failed to “show a

willingness to work on [Delroy’s] behalf” and “refus[ed] to
effectively cross examine” witnesses at a TRO proceeding.
at PageID # 3.

Id.

For the same reasons stated in the order on

October 18, 2017, the court finds that these allegations, to the
extent they may be asserting a federal claim, fail to establish
that Gianotti acted in this respect “under color of state law.”
See ECF 31.

Accordingly, the court dismisses the § 1983 claims

against Gianotti.

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D.

The Court Declines to Exercise Supplemental
Jurisdiction over the Remaining State-Law Claims.

For the same reasons articulated in the order on
October 18, 2017, this court declines to exercise supplemental
jurisdiction over the remaining state-law claims against
Gianotti.
V.

ECF 31.
CONCLUSION.
The federal claims against Gianotti are dismissed with

leave to amend.

If Delroy files an Amended Complaint with a

plausible federal claim, he may assert state-law claims in the
same document.

Delroy may file an Amended Complaint asserting

claims against Gianotti no later than December 29, 2017.
Failure to file by that deadline will cause this action to be
automatically dismissed.

In the event of such automatic

dismissal, Delroy may, at his option, seek to litigate any
cognizable claims he may have in state court.
Any Amended Complaint must be complete in itself; it
may not simply incorporate by reference the original Complaint
or anything previously filed with this court or any other court.
Also, pursuant to Rule 8(a) of the Federal Rules of Civil
Procedure, any Amended Complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”

With respect to each claim, Delroy should describe

what Gianotti allegedly did in separate, numbered paragraphs,

7

including sufficient facts and references to legal claims and
statutory citations to put Gianotti on notice of why he,
specifically, is being sued.
plaintiff’s claim.

Complaints are a road map to a

Accordingly, any proposed Amended Complaint

should clearly and concisely articulate the claim being asserted
and the basis or bases of this court’s jurisdiction, including
whether Delroy wishes to proceed under § 1983 or some other
federal law.
If Delroy is proceeding under § 1983, his allegations
should include factual information about why Gianotti is acting
under color of state law.

If Delroy is not proceeding under

§ 1983, then, depending on what law he is proceeding under,
there may not be an “under color of state law” requirement, but
he still must state some claim that is plausible.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 20, 2017.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Delroy Pengelly v. State of Hawaii, Family Court of the Third
Circuit, Civ. No. 17-00306 SOM-KJM; ORDER GRANTING DEFENDANT
ERNIE GIANOTTI’S MOTION TO DISMISS.

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