Gigena v. Calaveras County of California et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
GABRIEL OMAR GIGENA,
Plaintiff,
v.
CALAVERAS COUNTY OF
CALIFORNIA; US MARSHALS UTAH
VFAST TASK FORCE,
ORDER AFFIRMING & ADOPTING
REPORT & RECOMMENDATION
Case No. 2:24-CV-963-DAK-JCB
Judge Dale A. Kimball
Magistrate Judge Jared C. Bennett
Defendants.
This case was assigned to United States District Court Judge Dale A. Kimball, who then
referred the case to United States Magistrate Judge Jared C. Bennett under 28 U.S.C. §
636(b)(1)(B). On September 8, 2026, Magistrate Judge Bennett issued a Report and
Recommendation [ECF No. 16], recommending that the court dismiss Plaintiff’s Complaint
because Plaintiff’s challenges to separate criminal proceedings are moot, his challenges to a state
court custody order is brought in the improper venue, and the court lacks subject matter
jurisdiction over his excessive force claim based on sovereign immunity.
The Report and Recommendation notified Plaintiff that any objection to the Report and
Recommendation must be filed within fourteen days of receiving it. On September 17, 2025,
Plaintiff timely filed objections to the Report & Recommendation.
A Magistrate Judge’s Report and Recommendation is subject to de novo review by this
court. See 28 U.S.C. § 636(b)(1)(B); see also Fed. R. Civ. P. 72(b). Plaintiff raises several
objections to the Report and Recommendation. As an initial matter, Plaintiff objects that the
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Report and Recommendation relied on facts derived from outside sources instead of the facts in
his Complaint. However, the Magistrate Judge properly relied on facts that courts are allowed to
consider by taking judicial notice of such facts. There is no error in the Report and
Recommendation relating to judicial notice of facts.
Plaintiff also argues that the Magistrate Judge committed error by disregarding his
supplemental complaint. However, the Magistrate Judge considered the supplement and found
that it contains no causes of action or claims and that such supplements are not contemplated in
the Federal Rules of Civil Procedure. The Magistrate Judge is correct in his analysis of the
supplement. Plaintiff contends that the court should have merged the supplement with his
Complaint. But Plaintiff should have sought leave to amend his Complaint if he believed the
information in the supplement was necessary to state a claim. Moreover, the Magistrate Judge
reviewed the supplement and did not find any claims or information supporting Plaintiff’s
claims. The court does not find any error in the Magistrate Judge’s analysis with respect to the
supplement.
Plaintiff further argues that the Rooker-Feldman doctrine does not apply because the state
court had no jurisdiction and its order was void ab initio. The Magistrate Judge analyzed the
Rooker-Feldman doctrine in relation to its lack of venue holding and found that it weighed
heavily in favor of dismissal rather than transfer of venue. Plaintiff argues that he is not asking
the court to sit as an appellate tribunal over the California state court’s custody order. But his
argument ignores the fact that he asks this court to consider, and thus determine, that the order
was void ab initio. The only courts that can find the order void ad initio are the California court
that issued the order or the California state appellate courts. The Magistrate Judge’s analysis of
the Rooker-Feldman doctrine in this matter was correct.
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Plaintiff contends that venue is proper in Utah because his constitutional injuries occurred
in Utah. Plaintiff, however, has sued Calaveras County of California in this action because the
state court issued a Temporary Emergency Child Custody Order without jurisdiction and the
warrant supporting his arrest was based on that Order. The Magistrate Judge properly found that
venue in Utah was improper for Plaintiff’s claims against Calaveras County. Plaintiff contends
that venue is proper in Utah because he was tackled and assaulted in Park City. But the
Magistrate Judge found improper venue in this District with relation to the claims Plaintiff
brought against Calaveras County of California, not his claims against the U.S. Marshals. The
Magistrate Judge properly determined that this District is an improper venue for Plaintiff’s
claims against Calaveras County of California and that dismissal rather than transfer was
appropriate.
Plaintiff further argues that the Magistrate Judge erred in dismissing all tort claims
relating to his minor children, niece, nephew, and sister. Plaintiff asserts that he can bring claims
on their behalf. However, regardless of whether Plaintiff can bring claims on their behalf, the
Magistrate Judge properly indicated that those individuals are not named parties in this action.
Plaintiff is the only named Plaintiff in this action.
Plaintiff also argues that the Magistrate Judge improperly applied sovereign immunity to
his excessive force claims against the U.S. Marshals Utah VFAST Task Force. Plaintiff contends
that sovereign immunity does not shield his civil rights claims against individual officers for
excessive force and that it was improper for the court to develop the immunity defense for
Defendants at the screening stage. At the screening stage, however, the Magistrate Judge must
determine whether Plaintiff properly states a claim. The Magistrate Judge in this case properly
analyzed Plaintiff’s Section 1983 claims. Plaintiff brought his claim under Section 1983, and he
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cannot state a Section 1983 claim against the named Defendant. The Magistrate Judge also noted
that Plaintiff briefly mentioned the Federal Tort Claims Act (“FTCA”) but the United States has
not rendered itself liable under the FTCA for constitutional tort claims. This is a correct
statement of the law. Plaintiff cannot state a claim under the FTCA against the named Defendant.
The Magistrate Judge, therefore, found that there was no subject matter jurisdiction over
Plaintiff’s Section 1983 claim. While Plaintiff’s objection references Bivens for the first time,
Plaintiff has not asserted a Bivens claim in his Complaint. The Magistrate Judge did not address
Bivens because Plaintiff did not assert a Bivens claim and made no mention of it. Plaintiff has not
demonstrated any error in the Magistrate Judge’s analysis.
The court has reviewed the Report and Recommendation and the record de novo and
agrees with Magistrate Judge Bennett’s recommendations in their entirety. Plaintiff’s challenges
to the criminal proceedings fail for mootness, his challenges to the state court custody order fail
for improper venue, and Plaintiff’s Section 1983 excessive force claim fails for lack of subject
matter jurisdiction based on sovereign immunity. Therefore, the court adopts and affirms
Magistrate Judge Bennett’s Report and Recommendation as the Order of the court. Plaintiff’s
claims against Calaveras County are dismissed without prejudice for improper venue and his
Section 1983 claim against the U.S. Marshals Utah VFAST Task Force is dismissed for lack of
subject matter jurisdiction.
DATED this 13th day of October 2026.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
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