Pengelly v. Family Court of the Third Circuit, State of Hawaii et al
ORDER TO SHOW CAUSE Why Plaintiff Delroy Pengelly's Claims Against Defendant Margarita Pengelly Should Not Be Dismissed. "The court orders Plaintiff Delroy Pengelly to submit, no later than January 25, 2018, a written statement of no more than 1,500 words explaining why the court should not dismiss his claims against Defendant Margarita Pengelly. In lieu of a written statement, Delroy may also submit, no later than January 25, 2018, an Amended Complaint asserting claims again st Margarita but no other Defendants. If Delroy does not file a written statement or an Amended Complaint by January 25, 2018, claims against Margarita will be automatically dismissed. This court will then enter judgment against Delroy for the entire action." Signed by JUDGE SUSAN OKI MOLLWAY on 1/3/18. (cib, )CERTIFICATE OF SERVICEParticipants 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
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,
Civ. No. 17-00306 SOM-KJM
ORDER TO SHOW CAUSE WHY
PLAINTIFF DELROY PENGELLY’S
CLAIMS AGAINST DEFENDANT
MARGARITA PENGELLY SHOULD NOT
ORDER TO SHOW CAUSE WHY PLAINTIFF DELROY PENGELLY’S
CLAIMS AGAINST DEFENDANT MARGARITA PENGELLY SHOULD NOT BE DISMISSED
The court orders Plaintiff Delroy Pengelly (“Delroy”) 1
to submit, no later than January 25, 2018, a written statement
of no more than 1,500 words explaining why the court should not
dismiss his claims against Defendant Margarita Pengelly
(“Margarita”) for the same reasons it previously dismissed his
claims against Defendants Edward Smith, Robert Kim, and Ernie
See ECF 31; ECF 36.
In lieu of a written statement,
Delroy may also submit, no later than January 25, 2018, an
Amended Complaint asserting claims against Margarita but no
See Fed. R. Civ. P. 15(a)(2).
The court uses Delroy’s first name because his wife, Margarita
Pengelly, is also a party in this suit.
Prior Orders of this court dismissed all claims
against all Defendants aside from those asserted against
ECF 31; ECF 36.
In its Order on October 18, 2017,
the court dismissed Delroy’s claims against the Hawaii Family
Court and Judge Aley K. Auna Jr. without leave to amend.
In its Orders on October 18 and November 20, 2017, the
court dismissed Delroy’s claims against Smith, Kim, and Gianotti
with leave to amend, and gave Delroy until December 29, 2017, to
file an Amended Complaint.
December 29 has come and
gone without an Amended Complaint; at this point, the only
remaining claims in this lawsuit are those against Margarita. 2
The court’s prior Orders construed Delroy’s Complaint
as proceeding under 42 U.S.C. § 1983, and determined that
Delroy’s allegations failed to indicate how Smith, Kim, and
Gianotti could have acted “under color of state law,” which is
an “essential element” of stating a § 1983 claim.
Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997); ECF 31, PageID
#s 171-72, 182-88; ECF 36, PageID # 211.
This court dismissed
the § 1983 claims, leaving no plausible federal claim.
court then declined to exercise supplemental jurisdiction over
This court’s Order on November 20, 2017, erroneously stated
that Delroy’s failure to file an Amended Complaint by the
December 29, 2017, deadline “will cause this action to be
automatically dismissed.” ECF 36, PageID # 212. That statement
was incorrect, however, as claims remain pending against
Margarita, who has filed an Answer to the Complaint but no
motion to dismiss. See ECF 14.
the remaining state-law claims against Smith, Kim, and Gianotti.
ECF 31, PageID #s 188-89; ECF 36, PageID # 212.
In issuing its prior Orders, the court noticed that
the Complaint’s allegations pertaining to Margarita appeared to
be similarly flawed.
The court now orders Delroy to explain why
his claims against Margarita should not also be dismissed.
his written statement, Delroy may address whether the court
properly construed the Complaint as seeking to proceed under 42
U.S.C. § 1983, or whether, in his view, the Complaint states
some other federal claim.
If he seeks to proceed under § 1983,
Delroy should articulate why, in his view, the Complaint states
a § 1983 claim against Margarita.
The written statement should
also explain why this court should exercise supplemental
jurisdiction over the state-law claims against Margarita.
As noted, Delroy may opt to file an Amended Complaint
instead of a written statement.
If Delroy chooses to submit an
Amended Complaint, this Order will be rendered moot.
Amended Complaint must be restricted to Margarita, and may not
assert claims against Defendants Kim, Smith, Gianotti, Judge
Aley K. Auna, or the Hawaii Family Court.
If an Amended
Complaint asserts a plausible federal claim against Margarita,
Delroy may assert state-law claims in the same document.
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 Margarita allegedly did in separate, numbered
paragraphs, including sufficient facts and references to legal
claims and statutory citations to put Margarita on notice of why
she, specifically, is being sued. 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
If Delroy is proceeding under § 1983, his
allegations should include factual information about why
Margarita acted 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
If Delroy does not file a written statement or an
Amended Complaint by January 25, 2017, claims against Margarita
will be automatically dismissed.
This court will then enter
judgment against Delroy for the entire action.
In the event of
such automatic dismissal, Delroy may, at his option, seek to
litigate any cognizable claims he may have in state court.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 3, 2018.
/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 TO SHOW CAUSE WHY
PLAINTIFF DELROY PENGELLY’S CLAIMS AGAINST DEFENDANT MARGARITA
PENGELLY SHOULD NOT BE DISMISSED.
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