                                                                FILED
                                                     United States Court of Appeals
                                                             Tenth Circuit

                                                            April 16, 2010
                  UNITED STATES COURT OF APPEALS
                                               Elisabeth A. Shumaker
                                                            Clerk of Court
                        FOR THE TENTH CIRCUIT




CHRISTOPHER YNOSENCIO
YSAIS,

            Plaintiff-Appellant,

v.                                                   No. 09-2109
                                          (D.C. No. 1:08-CV-00449-JB-DJS)
STATE OF NEW MEXICO,                                  (D. N.M.)
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
    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 *


*
         After examining the briefs and appellate record, this panel has determined
                                                                         (continued...)

                                              -2-
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,


*
 (...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.

                                         -3-
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.




                                         -4-
      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

                                          -5-
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

                                          -6-
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.




                                          -7-
    The judgment of the district court is AFFIRMED. All pending motions are

DENIED.


                                              Entered for the Court



                                              John C. Porfilio
                                              Circuit Judge




                                    -8-
