Gigena v. Nielson

── Gigena v. Nielson ── Case No.: 25-4071 Court: Court of Appeals for the Tenth Circuit Date: March 27, 2026 Category: General Appellate Case: 25-4071 Document: 23 Date Filed: 03/27/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 27, 2026 _________________________________ Christopher M. Wolpert Clerk of Court GABRIEL OMAR GIGENA, Plaintiff - Appellant, v. No. 25-4071 (D.C. No. 2:24-CV-00805-DBB) HOWARD C. NIELSON, JR.; UNITED (D. Utah) STATES OF AMERICA, Defendants - Appellees. _________________________________ ORDER AND JUDGMENT * _________________________________ Before BACHARACH, McHUGH, and ROSSMAN, Circuit Judges. _________________________________ Gabriel Omar Gigena was charged with assault on a federal officer during an arrest stemming from a child-custody dispute. While his criminal proceedings were pending in the United States District Court for the District of Utah, he filed a petition for a writ of mandamus in the same district, seeking dismissal of his criminal proceedings on speedy-trial grounds. Instead, the district court dismissed his After examining the briefs and appellate record, this panel has determined * unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.  Appellate Case: 25-4071 Document: 23 Date Filed: 03/27/2026 Page: 2 mandamus petition for lack of jurisdiction. Proceeding pro se, 1 Mr. Gigena appeals the dismissal. In his mandamus petition, Mr. Gigena asked one federal judge to direct another federal judge to dismiss his criminal case. He invoked 28 U.S.C. § 1361, which provides: “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” The magistrate judge recommended a dismissal without prejudice for lack of jurisdiction. The linchpin for the recommendation was Trackwell v. United States Government, 472 F.3d 1242 (10th Cir. 2007)—a dispositive case from our circuit holding that § 1361 “does not apply to courts or to court clerks performing judicial functions.” Id. at 1243. Mr. Gigena objected to the report and recommendation. He argued the magistrate judge should not have relied on Trackwell and criticized the reasoning underlying Trackwell. The district court overruled his objections. It reasoned that it could not disregard or overrule binding Tenth Circuit precedent, so it lacked jurisdiction. Accordingly, it adopted the report and recommendation and dismissed the case without prejudice. 1 Because Mr. Gigena proceeds without the assistance of counsel, we construe his pleadings liberally. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We make some allowances for deficiencies, such as unfamiliarity with pleading requirements, failure to cite appropriate legal authority, and confusion of l