FILED

United States Court of Appeals

Tenth Circuit

April 27, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHRISTOPHER YNOCENSIO

YSAIS,

Plaintiff-Appellant,

v.

BILL RICHARDSON, individually

and in his official capacity as

Governor, State of New Mexico;

MARY!DALE BOLSON, individually

and in her capacity as Cabinet

Secretary of the Department of

Children Youth and Family, State of

New Mexico; KAREN PRICE,

individually and in her official

capacity as Agency Head of Children

Youth and Family, State of New

Mexico; DAVID MONTOYA,

individually and in his official

capacity of Supervisor of Children

Youth and Family, State of New

Mexico; JULIE BODENNER,

individually and in her official

capacity of Supervisor of Children

Youth and Family, State of New

Mexico; JENNIFER LYNN,

individually and as an employee of

Children Youth and Family, State of

New Mexico; STATE OF NEW

MEXICO, SECOND JUDICIAL

DISTRICT COURT; FAMILY

COURT CLINIC DIVISION; BETH

ROTH, individually and in her

capacity as Supervisor of the Family

No. 09-2111

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Court Clinic Division of the Second

Judicial District Court; TERRY

ASHCOM, individually and in her

capacity as an employee of the Family

Court Clinic Division of the Second

Judicial District Court; DIANN

SHEPPARD, individually and in her

capacity as an employee of the Family

Court Clinic Division of the Second

Judicial District Court; RIO RANCHO

POLICE DEPARTMENT; CHRIS

PINO, in his capacity as an

Investigative Sergeant of the Rio

Rancho Police Department; JEFF

CHAVEZ, individually and

in his capacity as a Rio Rancho Police

Officer; BRIAN LINK, individually

and as a Detective in the Rio Rancho

Police Department; ABRAZOS, INC.;

ELIZABETH SIMS, individually and

in her capacity as an employee of

Abrazos; PRESBYTERIAN

HOSPITAL; MARY DENTZ,

individually and in her capacity as a

Nurse Practitioner employed by

Presbyterian Hospital; KAREN

WALSH, individually and in her

capacity as a Doctor employed by

Presbyterian Hospital; UNIVERSITY

OF NEW MEXICO HOSPITAL;

CAROL CLERICUZIO, individually

and in her capacity as an employee of

the University of New Mexico

Hospital; JUDITY LEDMAN,

individually and in her capacity as a

Doctor employed by University of

New Mexico Hospital; RIO RANCHO

PUBLIC SCHOOLS; SHINING

STARS PRE!SCHOOL; JOAN

HROMAS, individually and in her

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capacity as an employee of Rio

Rancho Public Schools; 13TH

JUDICIAL DISTRICT ATTORNEY’S

OFFICE; CARLOS ELIZANDO,

individually and in his capacity as an

Assistant District Attorney; JODY

CARRASCO, individually and in her

capacity as an employee of the 13th

Judicial District Attorney’s Office;

TAMMY ROSEN, individually and in

her capacity as owner of Memorable

Moments Daycare; DONNA EARL,

individually and in her capacity as

owner of Cozy Daycare; GAYLE

ZIEMAN, in his capacity as contractor

with the Second Judicial District Court

Family Clinic; HAVEN HOUSE;

CONSUELO LEYBA; ANTHONY

LEYBA; STATE OF NEW MEXICO,

SECOND JUDICIAL DISTRICT,

Family Clinic Division; JANE DOE, 1,

individually and in her capacity as an

employee of Abrazos, Inc.; JOHN

DOE, 1, individually and in his

capacity as an employee of Abrazos,

Inc.; MEMORABLE MOMENTS

DAYCARE; COZY DAYCARE; CITY

OF RIO RANCHO; ABRAZOS

FAMILY SUPPORT SERVICES,

Defendants!Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 1:07-CV-00287-JB-RLP)

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* 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

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Submitted on the briefs:*

Christopher Ynosencio Ysais, Appellant-Pro Se.

Kevin M. Brown, Joel M. Young, The Brown Law Firm, Albuquerque, New

Mexico for Appellees Rio Rancho Public Schools, Shining Stars Pre-School, and

Joan Hromas.

Kathleen M. Wilson, Mariposa Padilla Sivage, Keleher & McLeod, P.A.,

Albuquerque, New Mexico for Appellee Dr. Gayle Zieman.

Nancy Franchini, Gallagher, Casados & Mann, P.C., Albuquerque, New Mexico

for Appellees Abrazos and Elizabeth Sims.

Before LUCERO, PORFILIO, and MURPHY, Circuit Judges.

PORFILIO, Circuit Judge.

After he was acquitted of criminal child abuse charges, Christopher

Ynocensio Ysais brought this action against various defendants charging

violations of his civil rights. He alleged causes of action pursuant to 42 U.S.C.

§ 1983 and state law. The district court eventually dismissed all defendants,

primarily on the basis of various forms of immunity. Mr. Ysais appeals. We

dismiss his appeal in part for lack of jurisdiction, and affirm in part. In addition,

we impose restrictions on his future filings with this court.

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1 In its judgment, the district court also dismissed defendant Haven House

without prejudice for failure of service. 

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ANALYSIS

I. Jurisdiction

The issue of our appellate jurisdiction is complicated by the sheer number

of orders entered in this case and by Ysais’s tendency to file successive motions

for reconsideration. On February 20, 2009, the district court entered its amended

final judgment. The judgment adjudicated all of Ysais’s existing claims against

all defendants except those against his ex-wife, defendant Consuelo Leyba.1

 In its

judgment, the district court entered a certification under Fed. R. Civ. P. 54(b)

making the judgment final and immediately appealable even though claims

remained pending against Leyba. 

The district court’s entry of a proper Rule 54(b) certification started the

clock running for Ysais to file a notice of appeal. Wineman v. Fid. Capital

Appreciation Fund (In re Integra Realty Resources, Inc.), 262 F.3d 1089, 1107

(10th Cir. 2001) (“[A] district court’s proper certification of an order under Rule

54(b) ordinarily starts the clock running for purposes of filing notice of appeal.”). 

He had thirty days in which to appeal from the amended final judgment. See

Fed. R. App. P. 4(a)(1)(A). 

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2 The federal rules do not recognize a motion to reconsider. A litigant

seeking reconsideration must file a motion to alter or amend judgment pursuant to

Fed. R. Civ .P. 59(e), or a motion seeking relief from judgment under Fed. R. Civ.

P. 60(b). Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). A

Rule 59(e) motion must be filed within ten days of the entry of judgment, and if

timely, it tolls the time for filing the notice of appeal under Fed. R. App. P

4(a)(4). A motion for reconsideration filed after the ten-day period is construed

as a motion seeking relief from judgment under Rule 60(b). Id.

3 Effective December 1, 2009, Rule 59 has been amended to provide that a

motion to alter or amend a judgment may be filed within 28 days after the entry

of judgment. We cite the earlier version of the rule, requiring filing of the motion

within ten days, since the ten-day period expired prior to the effective date of the

revision to the rule.

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On March 1, 2009, however, he filed a motion for reconsideration of the

judgment.2

 Since this motion was filed within ten days of the entry of the

amended final judgment, it was treated as a motion to alter or amend under

Fed. R. Civ. P. 59(e).3

 Ysais’s filing of this motion extended his time to appeal

from the amended final judgment until thirty days after the district court disposed

of the motion. See Fed. R. App. P. 4(a)(4)(A)(iv). 

The district court denied the motion for reconsideration on March 28, 2009. 

This restarted the thirty-day clock for filing a notice of appeal from the amended

final judgment. It also started a new thirty-day period if Ysais wished to file a

notice of appeal from the order denying the motion for reconsideration. 

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4 Although it appears that the case had now been completely resolved against

all defendants, perhaps out of an abundance of caution the district court also

entered a Rule 54(b) certification as to this judgment. 

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Two days later, on March 30, 2009, the district court entered final

judgment in favor of Leyba.4

 Ysais had thirty days, until April 29, 2009, to

appeal from this new final judgment in favor of Leyba. 

On April 6, 2009, Ysais filed a second motion seeking reconsideration. He

asked the district court to reconsider (1) its March 30 order granting judgment to

Leyba and (2) its March 28 order denying his motion for reconsideration of the

amended final judgment. While this second motion for reconsideration tolled

Ysais’s time to appeal (1) from the denial of the first motion for reconsideration,

see Venable v. Haislip, 721 F.2d 297, 299 (10th Cir. 1983), and (2) from the final

judgment dismissing Leyba, it did not extend the time for filing a notice of appeal

from the underlying amended final judgment. See United States v. Marsh,

700 F.2d 1322, 1324-28 (10th Cir. 1983) (rejecting use of successive tolling

motions to obtain additional time to file notice of appeal). Any notice of appeal

from the amended final judgment therefore should have been filed on or before

April 27, 2009. 

On April 29, 2009, two days after the deadline, Ysais finally filed a notice

of appeal. This notice essentially challenged every order entered in the case to

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date. The jurisdictional effect of this notice of appeal may be summarized as

follows:

1. The notice of appeal was untimely and thus ineffective to challenge the

amended final judgment. Ysais’s second motion for reconsideration did not

extend the deadline for filing his notice of appeal from that judgment.

2. The second motion for reconsideration extended the time for filing a

notice of appeal from the order granting judgment in favor of Leyba. Therefore,

the appeal was timely as to the order dismissing the claims against her. Ysais’s

notice of appeal ripened as to Leyba when the district court denied the second

motion for reconsideration on May 28, 2009. See Fed. R. App. P. 4(a)(4)(B)(i).

3. The second motion for reconsideration also extended the time for filing

a notice of appeal from the order denying the first motion for reconsideration. 

Venable, 721 F.2d at 299. Thus, the appeal is timely as to that order. But we

may consider only issues specifically raised in the first motion for reconsideration

and specifically briefed on appeal.

4. Ysais never appealed from the district court’s order denying the second

motion for reconsideration. That order is therefore not before us. See Fed. R.

App. P. 4(a)(4)(B)(ii) (requiring party to file new or amended notice of appeal to

challenge denial of tolling motion). 

We may consider only those issues properly justiciable in this appeal: the

district court’s dismissal of all claims against Leyba and its denial of Ysais’s first

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motion for reconsideration. The notice of appeal is untimely as to the other final

orders. Having clarified our jurisdiction, we turn to the merits of the appeal. 

II. Claims Against Leyba

The district court granted in part Leyba’s motion to dismiss “to the limited

extent some of the claims against Leyba fall within the scope of N. M. Stat. Ann.

1978, § 32A-4-3, which requires Leyba to report any suspicion of child abuse.” 

R. doc. 390, at 2. She then filed a motion seeking to be excused from any further

hearings in the case, which the district court construed as a motion to dismiss or

for summary judgment. It granted Ysais the opportunity to respond to the motion. 

It later dismissed the remaining claims against Leyba, finding that the federal

claims had been resolved and that to the extent Ysais raised potential state-law

claims involving defamation, slander, libel, and malicious prosecution against

her, it would decline to exercise supplemental jurisdiction over them. 

In his opening brief in this court, Ysais makes no argument specifically

tailored to the district court’s orders dismissing the claims against Leyba. He

does not address immunity under § 32A-4-5(B) or the district court’s decision to

decline supplemental jurisdiction. He does argue that “[a]ll defendant[s] are

included in all [his] arguments” even if not specifically mentioned. Aplt.

Opening Br. at 25. But none of his broadly-presented arguments justify reversal

of the orders dismissing his claims against Leyba. 

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Ysais’s essential contention on appeal is that the district court’s application

of various forms of immunity to his claims denied him his constitutional rights,

including his right to a jury trial. But he fails to substantiate his assertion that

judicial and prosecutorial immunity (and, presumably, the immunity for reporting

incidents of child abuse created by § 32A-4-5(B)) is unconstitutional. In fact,

official immunity is inherently constitutional. See Christensen v. Ward, 916 F.2d

1462, 1465, 1472-73 (10th Cir. 1990) (affirming district court rationale upholding

constitutionality of common law doctrine of immunity); Edelstein v. Wilentz,

812 F.2d 128, 131 (3rd Cir. 1987) (“The Constitution does not create a

fundamental right to pursue specific tort actions. States may create immunities

which effectively eliminate causes of action, subject only to the requirement that

their action not be arbitrary or irrational.”). In light of this basic principle, we

affirm the district court’s order of summary judgment in favor of Leyba. 

III. Claims Raised in First Motion to Reconsider

“We review a district court’s denial of a Fed. R. Civ. P. 59(e) motion for

reconsideration under an abuse of discretion standard.” Barber ex rel. Barber v.

Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009). “We will not

disturb such a decision unless we have a definite and firm conviction that the

lower court made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances.” Id. (quotation omitted). Having reviewed Ysais’

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Rule 59(e) motion, we find that it contains conclusory statements and meritless

arguments. The district court did not abuse its discretion in denying the motion. 

IV. Filing Restrictions

Federal courts have the inherent power to regulate the activities of abusive

litigants by imposing carefully tailored restrictions under appropriate

circumstances. Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989). 

Injunctions restricting further filing are appropriate where (1) “the litigant’s

lengthy and abusive history” is set forth; (2) the court provides guidelines as to

what the litigant “must do to obtain permission to file an action”; and (3) the

litigant received “notice and an opportunity to oppose the court’s order before it

is instituted.” Id. at 353-54. 

Ysais has a history of abusive and frivolous filings with this court. In Ysais

v. Ysais, No. 08-2219, he filed an appeal over which we lacked jurisdiction

seeking review of a district court order remanding his divorce case to state court. 

Notwithstanding the explanation in our dismissal order that we lack jurisdiction to

consider such remand orders, after the appeal was dismissed he returned to

district court and filed a motion under Fed. R. Civ. P. 60(b), again seeking to

challenge the remand order. Before the district court had ruled on this motion, he

filed a second, premature appeal to this court, Ysais v. Ysais, No. 09-2196, which

was also subject to dismissal both because no final order existed and because as

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we had already explained we lack jurisdiction to consider appeals from remand

orders. 

In another prior federal court action, Ysais challenged the actions of

various actors involved with state court child-custody proceedings. The district

court dismissed this prior civil rights suit under the abstention doctrine of

Younger v. Harris, 401 U.S. 37 (1971). Ysais appealed, and we dismissed his

appeal as frivolous. Ysais v. Children Youth & Family Dep’t, No. 09-2125, 2009

WL 4048782, at *1 (10th Cir. Nov. 24, 2009) (unpublished). 

The current appeal is one of three that Ysais has recently pursued in this

court, all connected with divorce, child-custody, or child-abuse issues. Ysais has

been a remarkably prolific litigator. The record in this case alone consists of

4200 pages. In his motions to supplement the record, Ysais contends that onethird of the district court record is missing, possibly bringing the actual record

size--in a case that was disposed of at a motion-to-dismiss stage--to a whopping

6,300 pages. Nor has the limited opportunity usually afforded for filing pleadings

at the appellate stage served as a deterrent. Ysais has filed more than thirty-five

appellate motions in this case alone that have been referred to the merits panel,

many of them repeatedly seeking the same relief and nearly all of them patently

frivolous. His electronic filing privileges were revoked after he bombarded this

court with electronically-filed motions. Statements in his recent motions lead us

to believe that further litigation may be forthcoming. 

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We conclude that Ysais’s previous appellate filings warrant imposing

limited restrictions upon him with respect to further pro se filings with this court. 

Therefore, in order to proceed pro se in this court in any appeal or original

proceeding relating to his divorce, child-custody, or child-abuse proceedings,

Ysais must provide this court with:

1. A list of all appeals or original proceedings filed concerning his divorce,

child-custody, or child-abuse proceedings, whether currently pending or

previously filed with this court, including the name, number, and citation, if

applicable, of each case, and the current status or disposition of each appeal or

original proceeding; and

2. A notarized affidavit, in proper legal form, which recites the issues he

seeks to present, including a short discussion of the legal basis asserted therefor,

and describing with particularity the order being challenged. The affidavit must

also certify, to the best of Ysais’s knowledge, that the legal arguments being

raised are not frivolous or made in bad faith; that they are warranted by existing

law or a good faith argument for the extension, modification, or reversal of

existing law; that the appeal or original proceeding is not interposed for any

improper purpose, such as delay or to needlessly increase the cost of litigation;

and that he will comply with all appellate and local rules of this court.

These filings shall be submitted to the Clerk of the court, who shall forward

them for review to the Chief Judge or his designee, to determine whether to

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permit Ysais to proceed with a pro se appeal or original proceeding. Without

such authorization, the matter will be dismissed. If the Chief Judge or his

designee authorizes a pro se appeal or original proceeding to proceed, an order

shall be entered indicating that the matter shall proceed in accordance with the

Federal Rules of Appellate Procedure and the Tenth Circuit Rules.

In addition, Ysais shall not submit any further pleadings or motions in this

court not specifically sanctioned by the Federal Rules of Appellate Procedure. In

the event that such a motion or pleading is submitted, the clerk of court may

return it to Ysais unfiled. 

Ysais shall have ten days from the date of this order and judgment to file

written objections, limited to fifteen pages, to these proposed filing restrictions. 

If he does not file timely objections, the filing restrictions will take effect twenty

days from the entry of this order and judgment. If he does file timely objections,

these filing restrictions will not take effect unless the court rules against Ysais on

his objections, in which case these filing restrictions shall apply to any filing with

this court after that ruling. 

This appeal is DISMISSED in part for lack of a timely notice of appeal as

to all final orders appealed from except the district court’s order dismissing

Ysais’s claims against Consuelo Leyba and its order denying Ysais’s motion for

reconsideration. As to those orders, the judgment of the district court is

AFFIRMED. We DENY Ysais’s motion to proceed in forma pauperis. We note

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that Ysais has filed many motions unauthorized by the Rules of Appellate

Procedure and lacking in merit. All pending motions are DENIED.

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