## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 16 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BUICK MOOMCHI,

Plaintiff-Appellant,

v. DEPARTMENT OF CORRECTIONS; 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. No. 96-2245 (D.C. No. CIV-96-163) (D. N.M.)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- ORDER AND JUDGMENT *

Before ANDERSON, LOGAN, and EBEL, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase 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 th e dismissal. Plaintiff also challenges the district court’s disp osition of a number of pretrial matters. The district court did not err i n denying plaintiff’s motion to remand this action to state court. Plaintiff’s complaint, which included causes of-3-

action under 42 U.S.C. §§ 1981, 1983, 1985, 1986, 2 000d and 2000e, and the United States Constitution, set forth “a claim or r ight 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 forappointment of counsel. The district court also did not err in denying plaintif f’s motions to disqualify defendants’ counsel. Alleging that the magistrate judge was biased again st him, plaintiff, on several occasions, requested the magistrate judge’s recusal, although he did not specify the statutory authority upon which he was r elying. See generally 28 U.S.C. §§ 144, 455(a), (b)(1) (addressing ground s, 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. ,-4-

Green v. Branson , 108 F.3d 1296, 1305 (10th Cir. 1997) (§ 144); Gre en v. Dorrell , 969 F.2d 915, 919 (10th Cir. 1992) (§ 144); Willn er 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 a ctual 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, h is arguments that the imposition of sanctions subjected him to double jeo pardy and that he was entitled to the appointment of counsel because he faced poss ible criminal contempt sanctions. We, therefore, need not address these g rounds 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 fo r the District of New Mexico is, therefore, AFFIRMED. Plaintiff’s pendin g motion to disqualify defendants’ counsel is DISMISSED. His remaining pe nding motions, including his request for oral argument and for the impositio n of sanctions against defendants’ attorneys, are DENIED. Entered for the Court

David M. Ebel Circuit Judge