Edna Lum v. City of Grants Pass

FILED
NOT FOR PUBLICATION MAY 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDNA LUM, personal representative of No. 11-35303
the Estate of Thomas T. Lum, deceased,
D.C. No. 1:09-cv-03075-CL
Plaintiff - Appellant,
v. MEMORANDUM *
CITY OF GRANTS PASS, a municipal
corporation; G. DEAN RIDENOUR,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Submitted May 10, 2012 **
Portland, Oregon
Before: KOZINSKI, Chief Judge, TALLMAN and IKUTA, Circuit Judges.
1. Edna Lum has not established a genuine issue of material fact either that
Thomas Lum was “seized” under the Fourth Amendment or that Corporal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
Ridenour’s initial entry into Lum’s motel room was an illegal search, so her claim
under 42 U.S.C. § 1983 fails. “[A] person has been ‘seized’ within the meaning of
the Fourth Amendment only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to leave.”
United States v. Mendenhall, 446 U.S. 544, 554 (1980). Lum was non-responsive
and thrashing uncontrollably, and his eyes were rolling in the back of his head, so
he certainly gave no indication that he wanted to leave but felt prevented from
doing so. And a reasonable person in Lum’s circumstances would want not to
leave but, instead, to receive the medical treatment required by the emergency and
provided with Ridenour’s assistance. “Violation of the Fourth Amendment
requires an intentional acquisition of physical control,” Brower v. Cnty. of Inyo,
489 U.S. 593, 596 (1989), and Ridenour’s actions in securing the motel room and
helping medical personnel didn’t constitute intentional acquisition of physical
control over Lum. Ridenour didn’t need a warrant to enter the residence because
he had an “objectively reasonable basis” for concluding that there was an
immediate need to protect Lum and the arriving medical personnel, and the scope
and manner of his entry were reasonable to meet the need. See United States v.
Snipe, 515 F.3d 947, 952 (9th Cir. 2008). The district court didn’t err in granting
summary judgment in favor of defendants.
page 3
2. The district court properly granted summary judgment in favor of
defendants on Edna Lum’s negligence claim because Lum failed to establish a
genuine issue of material fact that Ridenour’s “act[] or omission was sufficient to
bring about decedent’s death.” Joshi v. Providence Health Sys. of Or. Corp., 149
P.3d 1164, 1170 (Or. 2006). The record shows that Ridenour (1) didn’t restrain
Thomas Lum before allowing medical personnel to treat him, (2) didn’t delay
treatment to verify identities, and (3) didn’t prevent medical personnel from
treating Lum and transporting him to the hospital. Despite being given ample
opportunity to do so, Edna Lum failed to present evidence showing that her
brother’s death could have been prevented with different treatment. The district
court therefore properly “refused to find a ‘genuine issue’ where the only evidence
presented is ‘uncorroborated and self-serving’ testimony.” Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Kennedy v.
Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)).
AFFIRMED.