                                                                           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                             NOT FOR PUBLICATION                            MAY 14 2012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.
