Chase Hunter v. Gerard Roventini


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 14-2259 Doc: 16 Filed: 06/03/2015 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2259 CHASE CARMEN HUNTER, Plaintiff – Appellant, v. GERARD M. ROVENTINI, a/k/a Jerry M. Roventini;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. Appeal: 14-2259 Doc: 16 Filed: 06/03/2015 Pg: 2 of 5 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Senior No. 14-2259 dismissed in part, vacated in part, remanded, and petition denied; No. 15-1019 petition denied by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 14-2259 Doc: 16 Filed: 06/03/2015 Pg: 3 of 5 PER CURIAM In these consolidated proceedings, Chase Hunter seeks to appeal the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. Appeal: 14-2259 Doc: 16 United Filed: 06/03/2015 States District Pg: 4 of 5 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 4 Appeal: 14-2259 Doc: 16 Filed: 06/03/2015 Pg: 5 of 5 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 5

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