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This order and judgment is not binding precedent, except under the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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