FILED
NOT FOR PUBLICATION
OCT 26 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAM J. TENSER, No. 20-56176
Plaintiff-Appellant, D.C. No.
2:19-cv-05496-VBF-RAO
v.
BETH SILVERMAN, in her MEMORANDUM*
personal/professional capacity as Deputy
District Attorney for the Los Angeles
County District Attorneys Office; et al.,
Defendants-Appellees,
and
ROBERT JOSHUA RYAN; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted October 22, 2021**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: KLEINFELD, R. NELSON, and VANDYKE, Circuit Judges.
Tenser is an attorney bringing several Section 1983 claims against the
prosecutors, detectives, and officials he encountered during his messy involvement
with his civil client’s prosecution for murder. He appeals the district court’s order
dismissing his Section 1983 claims with prejudice pursuant to Federal Rule of
Civil Procedure 12(b)(6), as well as its order declining to enter default judgment in
his favor. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.1
A dismissal for failure to state a claim is reviewed de novo. Knievel v.
ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). A denial of leave to amend is
reviewed for abuse of discretion. Allen v. City of Beverly Hills, 911 F.2d 367, 373
(9th Cir. 1990). A denial of a motion for default judgment is reviewed for abuse of
discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092–93 (9th Cir. 1980). We may
affirm on any ground supported by the record. Vega v. United States, 881 F.3d
1146, 1152 (9th Cir. 2018).
1
Tenser also moves to strike portions of Silverman’s brief and excerpts from
the record. Dkt. 17. The motion is Denied as Moot. In affirming the district
court, we consider none of the material Tenser wishes stricken. Dkt. 17 at 5.
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I. Tenser’s Failure to State Claims
First, Tenser’s claims against prosecutors Mokayef and Silverman are barred
by absolute immunity. Because Tenser’s allegations focus on conduct leading up
to his contempt citation, they concern conduct “intimately associated with the
judicial phase of the criminal process.” Torres v. Goddard, 793 F.3d 1046, 1051
(9th Cir. 2015) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)).
Second, Tenser fails to state claims against detectives Cotter and Martindale.
To the extent that he bases his claims on the detectives’ conduct as witnesses or
submitting declarations in support of the contempt citation, his claims are barred
by absolute immunity. Burns v. Cnty. of King, 883 F.2d 819, 822 (9th Cir. 1989).
Further, he fails to state a right to petition claim because the detectives had no duty
to respond to Tenser’s complaints. Smith v. Arkansas State Highway Emp., Local
1315, 441 U.S. 463, 464–65 (1979). Furthermore, Tenser fails to state a Fourth
Amendment claim because it is not a seizure to escort someone from a courthouse
on a judge’s order, particularly where that person voluntarily leaves and no force is
used. See Sheppard v. Beerman, 18 F.3d 147, 153 (2d Cir. 1994). Nor is it a
seizure to cause someone to be required to appear before the court by submitting
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declarations showing cause for contempt. Cf. Karam v. City of Burbank, 352 F.3d
1188, 1194 (9th Cir. 2003). Finally, Tenser fails to state a “class of one” equal
protection claim because all of the events leading up to his contempt citation
involved discretionary decision-making. Towery v. Brewer, 672 F.3d 650, 660
(9th Cir. 2012).
Third, Tenser fails to state claims against the defendants associated with
Twin Towers Correctional Facility. He fails to state a free speech claim because,
even assuming the in camera requirement somehow interfered with his legal
practice, he has cited no authority to suggest there is a constitutional right to speak
to an imprisoned client in person rather than by camera, particularly where, as here,
there was a process in place by which he could seek a court order for in person
meetings. He fails to state a due process claim because the right to practice law is
not violated by brief interruptions to one’s ability to practice. Lowry v. Barnhart,
329 F.3d 1019, 1023 (9th Cir. 2003). And he fails to state an equal protection
claim because his own allegations show that the camera rule applied to similarly
situated attorneys.
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Because Tenser fails to state any claim against individual defendants, we do
not reach his claims against any government entity (“Doe 10”) that employed
them.
II. The District Court’s Denial of Tenser’s Motion for Default Judgment
The district court did not abuse its discretion when it declined to enter
default judgment in favor of Tenser. Tenser argues that Silverman failed to timely
answer the First Amended Complaint. However, a motion to dismiss extends the
time to answer an amended complaint to 14 days after the court rules on the
motion. Fed. R. Civ. P. 12(a)(4), (b).
III. The District Court’s Denial of Leave to Amend
The district court did not abuse its discretion when it denied Tenser leave to
amend. Tenser argues that the district court failed to give him the leeway owed to
pro se litigants. But this rule of leniency does not apply when, as here, the litigant
is a lawyer. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)
(indicating that the proper contrast is between pleadings drafted by lawyers and
5
non-lawyers). Moreover, leave to amend may be denied when, as here,
amendment would be futile. Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma Cty.,
708 F.3d 1109, 1117 (9th Cir. 2013).
IV. Tenser’s Violation of Rule 8
We note that Tenser’s complaint fails to give “a short and plain statement of
the claim” that is “simple, concise, and direct.” Fed. R. Civ. Proc. 8(a)(2), (d)(1).
The district court struggled, as have we, to identify which claims attach to which
defendants, and precisely what claims are made. The complaint runs 100 pages.
Tenser’s numbered allegations comprise long, dense, rambling sentences. The
unfortunate result is that Tenser, by his prolixity, has taken “a great deal of time
away from more deserving litigants waiting in line.” McHenry v. Renne, 84 F.3d
1172, 1180 (9th Cir. 1996).
AFFIRMED.
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