Gabriel v. El Paso County Criminal Justice Center et al

Filing 137

ORDER USCA re: 128 USCA Letter with Writ of Mandamus filed with Court of Appeals. Petition for Write of Mandamus is Denied on 3/22/2016. (cmira)

Appellate Case: 15-1499

Document: 01019590574

Date Filed: 03/22/2016

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
In re: VINCENT GABRIEL,
Petitioner.

Page: 1
FILED
United States Court of Appeals
Tenth Circuit

March 22, 2016
Elisabeth A. Shumaker
Clerk of Court

No. 15-1499
(D.C. No. 1:15-CV-01491-REB-CBS)
(D. Colo.)
_________________________________
ORDER
_________________________________

Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________
After Vincent Gabriel initiated a civil rights action, defendant Theresa Pedley
Cooper moved for an extension of time file a responsive pleading out of time. A
magistrate judge granted Ms. Cooper’s request, and since then Mr. Gabriel has filed
numerous unsuccessful motions seeking reconsideration and entry of default against
Ms. Cooper. Mr. Gabriel now seeks a writ a mandamus compelling the magistrate judge
and district court judge to reverse their orders denying reconsideration and enter a default
judgment against Ms. Cooper. We deny Mr. Gabriel’s request.
“[A] writ of mandamus is a drastic remedy, and is to be invoked only in
extraordinary circumstances.” In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186
(10th Cir. 2009) (internal quotation marks omitted). To obtain mandamus relief,
Mr. Gabriel must show that (1) he has “no other adequate means to attain the relief he
desires,” (2) “his right to the writ is clear and indisputable,” and (3) issuance of the writ is
an appropriate exercise of this court’s discretion. Id. at 1187 (internal quotation marks

Appellate Case: 15-1499

Document: 01019590574

Date Filed: 03/22/2016

Page: 2

omitted). We will issue the writ “only when the district court has acted wholly without
jurisdiction or so clearly abused its discretion as to constitute usurpation of power.” Id. at
1186 (internal quotation marks omitted).
Mr. Gabriel fails to show he is entitled to an extraordinary writ of mandamus. He
asserts he has no alternative means of relief because the district court denied his request
to certify an interlocutory appeal, but he fails to show that a direct appeal after entry of
final judgment would be inadequate to vindicate his rights if he should suffer an adverse
judgment. Further, the denial of reconsideration and entry of default judgment are
matters committed to the district court’s discretion. See United States v. Barajas-Chavez,
358 F.3d 1263, 1266 (10th Cir. 2004) (reconsideration); Ashby v. McKenna, 331 F.3d
1148, 1152 (10th Cir. 2003) (default judgment). “Where a matter is committed to
discretion, it cannot be said that a litigant’s right to a particular result is clear and
indisputable.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980)
(per curiam) (internal quotation marks omitted). Under these circumstances, we cannot
say mandamus relief would be an appropriate exercise of our discretion.
Accordingly, the petition for a writ of mandamus is denied.
Entered for the Court

ELISABETH A. SHUMAKER, Clerk

2