United States District Court, D. Hawaii
ORDER TO SHOW CAUSE WHY PLAINTIFF DELROY
PENGELLY'S CLAIMS AGAINST DEFENDANT MARGARITA PENGELLY
SHOULD NOT BE DISMISSED
Oki Mollway United States District Judge.
court orders Plaintiff Delroy Pengelly
(“Delroy”) 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 Gianotti. 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 other
Defendants. See Fed. R. Civ. P. 15(a)(2).
Orders of this court dismissed all claims against all
Defendants aside from those asserted against Margarita. 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. ECF 31. 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. ECF 36. December 29
has come and gone without an Amended Complaint; at this
point, the only remaining claims in this lawsuit are those
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. Johnson v. 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. The court
then declined to exercise supplemental jurisdiction over the
remaining state-law claims against Smith, Kim, and Gianotti.
ECF 31, PageID #s 188-89; ECF 36, PageID # 212.
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. In 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.
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. Any 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. 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.
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 plaintiff's claim.
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
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 plausible.
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.
 The court uses Delroy's first name
because his wife, Margarita Pengelly, is also a party in this
 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 ...