Chase Hunter v. Gerard Roventini

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion for other relief [999492524-2] in 14-2259; granting Motion to proceed in forma pauperis (FRAP 24) [999476748-2] in 14-2259; denying Motion for writ of mandamus (FRAP 21) [999505756-2] in 15-1019 Originating case number: 5:14-cv-00733-FL Copies to all parties and the district court/agency. [999595456]. [14-2259, 15-1019]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2259

CHASE CARMEN HUNTER,
Plaintiff – Appellant,
v.
GERARD M. ROVENTINI, a/k/a Jerry M. Roventini; JOHN DOE;
THE NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS; THE
NATIONAL INSURANCE PRODUCER REGISTRY; ELEANOR KITZMAN,
Individually
and
in
her
Official
Capacity
as
the
Commissioner of the Texas Department of Insurance; JULIA
RATHGEBER, Individually and in her Official Capacity as the
Commissioner of the Texas Department of Insurance; THE
TEXAS DEPARTMENT OF INSURANCE; DAVE JONES, Individually and
in his Official Capacity as The Commissioner of Insurance
of the California Department of Insurance; THE CALIFORNIA
DEPARTMENT OF INSURANCE; RAYMOND O. ANDERSON,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:14-cv-00733-FL)

No. 15-1019

In Re:

CHASE CARMEN HUNTER,
Petitioner.

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On Petition for Writ of Mandamus.
(5:14-cv-00733-FL)

Submitted:

March 27, 2015

Before DUNCAN
Circuit Judge.

and

DIAZ,

Decided:

Circuit

Judges,

and

June 3, 2015

DAVIS,

Senior

No. 14-2259 dismissed in part, vacated in part, remanded, and
petition denied; No. 15-1019 petition denied by unpublished per
curiam opinion.

Chase Carmen Hunter, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM
In these consolidated proceedings, Chase Hunter seeks to
appeal the magistrate judge’s order denying her leave to proceed
in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915 (2012).
Hunter

also

appeals

the

district

court’s

order

denying

motion to vacate the magistrate judge’s IFP order.

her

Finally,

Hunter petitions this Court for writs of mandamus ordering the
district court to edit the electronic docket designations of her
submissions
system.

and

to

permit

her

to

use

its

electronic

filing

After careful consideration, we dismiss Hunter’s appeal

of the magistrate judge’s order, vacate the district court’s
order and remand for its determination of Hunter’s IFP status,
and deny Hunter’s mandamus petitions.
First,

we

judge’s order.

lack

jurisdiction

to

review

the

magistrate

See 28 U.S.C. § 636(b)(1) (2012); Colorado Bldg.

& Constr. Trades Council v. B.B. Andersen Constr. Co., Inc., 879
F.2d 809, 811 (4th Cir. 1989).
appeal

from

the

order

of

We therefore dismiss Hunter’s

the

magistrate

judge

for

want

of

jurisdiction.
We

do

have

jurisdiction

to

review

the

district

court’s

order denying Hunter’s motion to vacate the magistrate judge’s
IFP order.
of

a

motion

We construe the district court’s order as a denial
for

leave

to

proceed

IFP,

which

is

appealable and reviewed for abuse of discretion.
3

immediately
Roberts v.

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United

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States

District

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Court,

339

U.S.

844,

845

(1950)

(appealability); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.
1990) (standard of review).
The magistrate judge, proceeding under 28 U.S.C. § 636(b)
(2012), lacked the authority to issue an order denying Hunter
leave to proceed IFP.

See Woods v. Dahlberg, 894 F.2d 187, 187

(6th Cir. 1990) (per curiam) (“[A] denial of such a motion is
the functional equivalent of an involuntary dismissal and is
outside the scope of a magistrate’s authority.”).

While the

district court did have such authority, it abused its discretion
by

applying

a

clearly

erroneous

standard

of

review

to

the

magistrate judge’s order rather than reviewing it de novo.

The

magistrate judge could do no more than issue a recommendation;
as a result, the district court was required “to ‘make a de novo
determination

of

recommendation

to

those

portions

of

the

which

objection

[was]

magistrate
made.’”

judge’s

Diamond

v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting 28 U.S.C.A. § 636(b)(1) (West 1993 & Supp. 2005)
(internal alterations omitted)).
properly
that

considered

Hunter

order.

had

its

noted

Moreover, the district court

jurisdiction
an

appeal

constrained

from

the

by

the

magistrate

fact

judge’s

See Doe v. Public Citizen, 749 F.3d 246, 258 (4th Cir.

2014) (“Generally, a timely filed notice of appeal transfers
jurisdiction of a case to the court of appeals and strips a
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district court of jurisdiction to rule on any matters involved
in the appeal.”).

Thus, in Appeal No. 14-2259, we grant leave

to proceed on appeal in forma pauperis, dismiss the appeal of
the magistrate judge’s order, vacate the district court’s order
denying

Hunter’s

motion

to

vacate,

and

remand

to

allow

the

district court to rule on Hunter’s IFP status.
As for Hunter’s mandamus petitions, we note that mandamus
is

a

drastic

circumstances.

remedy

to

be

used

only

in

extraordinary

United States v. Moussaoui, 333 F.3d 509, 516-17

(4th Cir. 2003).

Mandamus relief is available only when there

are no other means by which the relief sought could be granted.
Id. at 517.

The party seeking mandamus relief bears the heavy

burden of showing that she has no other adequate means to obtain
the relief sought and that her entitlement to relief is clear
and indisputable.
33, 35 (1980).

Allied Chem. Corp. v. Daiflon, Inc., 449 U.S.

We deny Hunter’s mandamus petitions, as she has

shown no indisputable right to relief in either instance.
We dispense with oral argument because the facts and legal
contentions

are

adequately

presented

in

the

materials

before

this court and argument would not aid the decisional process.

No. 14-2259 DISMISSED IN PART,
VACATED IN PART, REMANDED,
AND PETITION DENIED
No. 15-1019 PETITION DENIED

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