                                                              F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                               JUL 16 1997
                          FOR THE TENTH CIRCUIT
                                                           PATRICK FISHER
                                                                    Clerk


BUICK MOOMCHI,

            Plaintiff-Appellant,

v.                                             No. 96-2245
                                           (D.C. No. CIV-96-163)
DEPARTMENT OF CORRECTIONS;                       (D. N.M.)
STATE OF NEW MEXICO; KARL L.
SANNICKS, individually and in his
capacity as the Secretary of
Corrections; CHARLES KING,
individually and in his capacity as
Mental Health Director, New Mexico
Department of Corrections; GEORGE
E. SANCHEZ, individually and in his
capacity as Acting Health Program
Director, Department of Corrections;
VIRGIL GARCIA, individually and in
his capacity as the Equal Employment
Officer, New Mexico Department of
Corrections; KATHLEEN NESTOR,
individually and in her capacity as the
Mental Health Services Director of the
Penitentiary of New Mexico, and as an
agent of the State of New Mexico;
JOHN/JANE DOE, 1, as persons
associated with one or more of the
above named defendants, although
unknown at this time,

            Defendants-Appellees.
                            ORDER AND JUDGMENT *


Before ANDERSON, LOGAN, and EBEL, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff appeals the district court’s dismissal of his employment

discrimination action, with prejudice, pursuant to Fed. R. Civ. P. 37(b)(2)(C), as a

discovery sanction. Because, in doing so, the district court considered the

appropriate factors and did not otherwise abuse its discretion, see Ehrenhaus v.

Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992); see also Jones v. Thompson,

996 F.2d 261, 264-66 (10th Cir. 1993), we affirm the dismissal.

      Plaintiff also challenges the district court’s disposition of a number of

pretrial matters. The district court did not err in denying plaintiff’s motion to

remand this action to state court. Plaintiff’s complaint, which included causes of



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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action under 42 U.S.C. §§ 1981, 1983, 1985, 1986, 2000d and 2000e, and the

United States Constitution, set forth “a claim or right arising under the

Constitution, treaties or laws of the United States,” 28 U.S.C. § 1441(b), and was,

thus, removable to federal court. Further, defendants filed a timely notice of

removal, properly measured from the time plaintiff served his complaint alleging

these federal claims. See id. § 1446(b).

      The district court did not abuse its discretion in denying plaintiff’s default

judgment motion, see Gulley v. Orr, 905 F.2d 1383, 1386 (10th Cir. 1990), in

light of defendants’ timely filed answer, see Fed. R. Civ. P. 81(c). Nor did the

district court abuse its discretion, see Rucks v. Boergermann, 57 F.3d 978, 979

(10th Cir. 1995), in denying plaintiff’s motion for appointment of counsel. The

district court also did not err in denying plaintiff’s motions to disqualify

defendants’ counsel.

      Alleging that the magistrate judge was biased against him, plaintiff, on

several occasions, requested the magistrate judge’s recusal, although he did not

specify the statutory authority upon which he was relying. See generally

28 U.S.C. §§ 144, 455(a), (b)(1) (addressing grounds, procedures for recusal

because of bias or prejudice). The district court did not abuse its discretion in not

granting plaintiff’s recusal requests, see, e.g., United States v. Burger, 964 F.2d

1065, 1070 (10th Cir. 1992), both because those requests were untimely, see, e.g.,


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Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997) (§ 144); Green v.

Dorrell, 969 F.2d 915, 919 (10th Cir. 1992) (§ 144); Willner v. University of

Kan., 848 F.2d 1020, 1022-23 (10th Cir. 1988) (§ 455(a), (b)(1)), and because he

failed to make a sufficient showing of either the actual or apparent bias or

prejudice of the magistrate judge, see, e.g., Willner v. University of Kan., 848

F.2d 1023, 1026-28 (10th Cir. 1988) (§§ 144, 455(a), (b)(1)).

      Plaintiff failed to raise, in the district court, his arguments that the

imposition of sanctions subjected him to double jeopardy and that he was entitled

to the appointment of counsel because he faced possible criminal contempt

sanctions. We, therefore, need not address these grounds for relief. See, e.g.,

Tilton v. Capital Cities/ABC, Inc., No. 96-5041, 1997 WL 332430, at *3, *4, *8

(10th Cir. June 18, 1997).

      The judgment of the United States District Court for the District of New

Mexico is, therefore, AFFIRMED. Plaintiff’s pending motion to disqualify

defendants’ counsel is DISMISSED. His remaining pending motions, including

his request for oral argument and for the imposition of sanctions against

defendants’ attorneys, are DENIED.

                                                      Entered for the Court


                                                      David M. Ebel
                                                      Circuit Judge


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