FILED

United States Court of Appeals

Tenth Circuit

April 16, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CHRISTOPHER YNOSENCIO

YSAIS,

Plaintiff-Appellant,

v.

STATE OF NEW MEXICO,

JUDICIAL STANDARD

COMMISSION, as an Employee of the

State of New Mexico, and as an

individual; JAMES A. NOEL, in his

official capacity as Executive Director

of Judicial Standard Commission, and

Employee of the State of New Mexico,

and as an individual; DAVID S.

SMOAK, in his official capacity as

Chairman of the Judicial Standard

Commission, and Employee of the

State of New Mexico, and as an

individual; RANDALL D. ROYBAL,

in his official capacity as Deputy

Director/Chief of Staff Attorney of the

Judicial Standard Commission, and

Employee of the State of New Mexico,

and as an individual; BILL

RICHARDSON, in his official

capacity as Governor, and Employee

of State of New Mexico, and as an

individual; THE DISCIPLINARY

BOARD, as an Employee of the State

of New Mexico, and as an individual;

VIRGINIA L. FERRARA, as Chief

Disciplinary Counsel of the

Disciplinary Board, and Employee of

the State of New Mexico, and as an

No. 09-2109

(D.C. No. 1:08-CV-00449-JB-DJS)

(D. N.M.)

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

(continued...)

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individual; SECOND JUDICIAL

DISTRICT COURT, and as an

individual; DEBORAH DAVIS

WALKER, in her official capacity as

an Employee of the Second Judicial

District Court, and Employee of State

of New Mexico, and as an individual;

WILLIAM F. LANG, in his official

capacity as an Employee of the Second

Judicial District Court, and Employee

of State of New Mexico, and as an

individual; THIRTEENTH JUDICIAL

DISTRICT COURT, and as an

individual; NANCY COLELLA, in her

official capacity as an Employee of

Thirteenth Judicial District Court, and

Employee of the State of New Mexico,

and as an individual; STATE OF NEW

MEXICO COURT OF APPEALS, and

as an individual; A. JOSEPH

ALARID, in his official capacity as an

Employee of the Court of Appeals, and

Employee of State of New Mexico,

and as an individual; CYNTHIA A.

FRY, in her official capacity as an

Employee of the Court of Appeals, and

Employee of State of New Mexico,

and as an individual; CELIA FOY

CASTILLO, in her official capacity as

an Employee of the Court of Appeals,

and Employee of State of New

Mexico, and as an individual,

Defendants-Appellees.

ORDER AND JUDGMENT*

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*

(...continued)

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. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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Before LUCERO, PORFILIO, and MURPHY, Circuit Judges.

This is one of a number of cases filed by Christopher Ynosencio Ysais

seeking to involve the federal courts in his state court child custody matters. The

defendants he sued in this case were in many instances only tangentially involved

with the underlying divorce and custody proceedings from which he alleged

constitutional injury. They included state court judges, state agencies charged

with disciplining attorneys and judges, and state officials. The district court

dismissed Ysais’s complaint, concluding that all the defendants were entitled to

immunity and that he had failed to timely serve defendant Governor Richardson. 

He appeals.

In its well-reasoned Memorandum Opinion and Order dated March 31,

2009, the district court granted the defendants’ motion to dismiss. It concluded

that the state entities and their employees acting in their official capacities were

immune from suit under the Eleventh Amendment; that the judges and the hearing

officer Ysais sued were absolutely immune from suit; that Virginia L. Ferrera,

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Counsel for the Disciplinary Board, was entitled to absolute prosecutorial

immunity; and that Ysais failed to effect proper service of process on Governor

Richardson. 

We review de novo (1) the district court’s dismissal of Ysais’s official

capacity claims based on Eleventh Amendment immunity, see Steadfast Ins. Co.

v. Agric. Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007); (2) its grant of absolute

immunity to the judges and hearing officer, Gagan v. Norton, 35 F.3d 1473, 1475

(10th Cir. 1994), and (3) its grant of prosecutorial immunity to the Disciplinary

Board counsel, see Arnold v. McClain, 926 F.2d 963, 967 (10th Cir. 1991). We

review dismissals for lack of timely service of process for an abuse of discretion. 

Jones v. Frank, 973 F.2d 872, 872 (10th Cir. 1992).

Ysais’s briefing in this court presents many contentions that are irrelevant

to the district court’s determinations concerning immunity and service of process. 

Having reviewed his briefs with care, however, and construing them liberally in

light of his pro se status, we discern the following arguments that may be relevant

to the district court’s decision: (1) whether judicial immunity barred his claims

for equitable, declaratory, or injunctive relief; (2) whether the judges involved

acted so plainly without jurisdiction that judicial immunity should have been

denied; (3) whether judicial immunity is constitutional; and (4) whether he should

have been permitted to amend his complaint. None of these arguments has merit.

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1. Equitable, Declaratory, and Injunctive Relief

Judicial officers are explicitly immunized not only against damages but

also against suits for injunctive relief under 42 U.S.C. § 1983. Roth v. King,

449 F.3d 1272, 1286-87 (D.C. Cir. 2006). While judicial immunity does not

necessarily foreclose declaratory relief in the appropriate case, Ysais fails to

specify what form declaratory relief would take and his complaint cannot be read

to request declaratory relief in the true legal sense. A declaratory judgment is

meant to define the legal rights and obligations of the parties in anticipation of

some future conduct, not simply to proclaim liability for a past act. See Utah

Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1266 (10th Cir.

2004) (McConnell, J., concurring) (“[A] declaratory judgment action involving

past conduct that will not recur is not justiciable.”). We discern no cognizable

claim for declaratory judgment against judicial officers in Ysais’s complaint. 

The Eleventh Amendment bars suits against state agencies, regardless of

whether they seek damages or some other type of relief. Fed. Maritime Comm’n

v. S.C. State Ports Auth., 535 U.S. 743, 765 (2002). But it does not bar suits

against a state officer in his official capacity that seek only prospective relief. 

Chamber of Commerce v. Edmondson, 594 F.3d 742, 760 (10th Cir. 2010). Here

again, however, Ysais’s complaint does not seek any authentic prospective relief. 

The only forward-looking relief he seeks lies in his request that his state custody

proceedings be removed to federal court. But the district court has already denied

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that relief in a separate action by remanding Ysais’s divorce proceeding to state

court. We lack jurisdiction to review its decision to remand. See 28 U.S.C.

§ 1447(d).

Assuming prosecutorial immunity permits an exception for injunctive or

declaratory relief, nothing in Ysais’s complaint would justify awarding such

relief. He complains that disciplinary counsel failed to act on or summarily

rejected his complaints against various judges. It is plainly beyond the powers of

the federal courts to order state disciplinary counsel to commence investigative

proceedings. See, e.g., Schroder v. Bush, 263 F.3d 1169, 1175 (10th Cir. 2001)

(noting that prosecutorial discretion is rooted in concept of separation of judicial

and prosecutorial functions); N.M.R.A. 17-105 (outlining prosecutorial duties of

chief disciplinary counsel). Ysais therefore fails to show any entitlement to

prospective relief against disciplinary counsel.

2. Action in Absence of Jurisdiction

To overcome absolute judicial immunity, a plaintiff must demonstrate that

a judge’s actions were either outside the judge’s judicial capacity or were taken in

the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12

(1991) (per curiam). Ysais’s complaint fails to allege any such actions by the

judges he has sued. While he complains that the state district court continued to

adjudicate his divorce case even after he filed an appeal, the state court’s action

falls short of action taken in the complete absence of all jurisdiction. A judge

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acts in the clear absence of all jurisdiction only when he “acts clearly without any

colorable claim of jurisdiction.” Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir.

1990). Moreover, Ysais’s arguments challenging the “domestic relations

exception” to federal jurisdiction are frivolous.

3. Constitutionality of Immunity

Ysais argues that immunity is unconstitutional. He is wrong. 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).

4. Amendment of Complaint

Ysais argues that the district court should have permitted him to amend his

complaint. He does not disclose how he would have amended it to avoid the

defendants’ immunities or to circumvent the fact that he failed to serve the

complaint on Governor Richardson. Federal courts may dismiss complaints under

Federal Rule of Civil Procedure 12(b)(6) if “it is patently obvious that the

plaintiff could not prevail on the facts alleged, and allowing him an opportunity

to amend his complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991) (quotation omitted). The district court did not err by failing to

permit Ysais to amend his complaint.

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The judgment of the district court is AFFIRMED. All pending motions are

DENIED.

Entered for the Court

John C. Porfilio

Circuit Judge

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