In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2959

Vickie R. Chapman,

Plaintiff-Appellant,

v.

Howard Keltner, Yoshida Williams
and DuPage County, an Illinois municipal
corporation,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 98 C 6295--Joan B. Gottschall, Judge.


Argued January 26, 2001--Decided February 21,
2001



  Before Bauer, Manion, and Rovner, Circuit
Judges.

  Bauer, Circuit Judge. On October 8,
1997, DuPage County Deputy Sheriffs
Howard Keltner and Yoshida Williams
arrested Vickie Chapman, who was dressed
in a fuchsia bathrobe and slippers,
pursuant to a warrant upon her discharge
from Good Samaritan Hospital in Downers
Grove, Illinois. Chapman had been
hospitalized for about five days,
recovering from bowel resection surgery,
which entailed making a nine-inch
incision across her lower abdomen and
pelvic area. Prior to her discharge, Dr.
Bruce Dillon gave her instructions.
During this conversation, Chapman asked
if she could take the two stairs leading
to the front door of her house. She says
that Dr. Dillon okayed it so long as she
took them "one at a time." Dr. Dillon
does not specifically recall giving
Chapman this instruction, but says that
he probably would have. The only
instruction written on the discharge
record, however, was "no heavy lifting."
  Once inside the hospital, Keltner and
Williams showed the nurse the arrest
warrant. The nurse asked about the
conditions at the jail infirmary, and
called the infirmary nurse to inquire
further. The nurse then told the officers
that Chapman could be taken to jail
without any problems. Chapman was
arrested and handcuffed with her hands in
front of her body. Keltner and Williams
escorted her to a van, one of the types
of vehicles authorized by the DuPage
County Sheriff’s Office, along with squad
cars, to transport prisoners. As the van
door was opened, Chapman refused to get
in because her incision might rip open
and said, "the step is too high, the
doctor told me not to take stairs except
one at a time." Keltner told her that she
had to go to jail in the van. Chapman
asked if she could slide into the van
backwards and sit on the floor. Keltner
said no because she had to sit in the
seat. Keltner decided that he and
Williams would assist Chapman into the
van, with one on each side for support.
As Chapman stepped up, the incision
opened and began to bleed. During the
drive to jail, Chapman cried and
trembled, and although Keltner commented
on her crying, Chapman did not reveal
what had happened. Upon arriving at the
jail, the officers similarly assisted her
out of the van. Chapman was processed and
attended court. Her husband posted the
bond deposit. Chapman left jail with her
husband and headed to the emergency room
at Hinsdale Hospital. Her incision had
separated one centimeter and, according
to her expert, caused a hernia.

  Chapman filed a three-count complaint.
Count One, brought under 42 U.S.C. sec.
1983, claimed a Fourteenth Amendment
violation in that the officers were
deliberately indifferent to her serious
medical needs. Count Two, also arising
under sec. 1983, stated a Fourth
Amendment violation in that the officers
used excessive force during her arrest.
Count Three stated, in pertinent part, a
claim against the officers for willful
and wanton conduct under Illinois law.
Keltner and Williams moved for summary
judgment, which was granted in their
favor on all three counts. In so
granting, the district court determined
that Chapman’s allegations were "not
fully supported by the evidence obtained
through discovery." Chapman appealed.
  We review a grant of summary judgment de
novo, construing all facts and drawing
all reasonable inferences from the record
in the light most favorable to the
nonmovant. Summary judgment is proper
when the record reveals no genuine issue
of material fact and that the moving
party is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56(c). The meat
of Chapman’s appeal is that by requiring
her to step up into the van, which was
more than twice as high as an ordinary
stair, after she told the officers that
the step was too high and that her doctor
instructed her not to take stairs except
one at a time, the officers (1) were
deliberately indifferent to her serious
medical needs by intentionally
interfering with her prescribed
treatment, (2) used excessive force
during her arrest, and (3) were willful
and wanton by showing a conscious
disregard for or an utter indifference to
her safety. We affirm the district
court’s decision as to each claim.

I. Count I: Fourteenth Amendment--
Deliberate Indifference

  The Eighth Amendment protects prisoners
from deliberate indifference to a serious
injury or medical need. See Zentmyer v.
Kendall County, 220 F.3d 805, 810 (7th
Cir. 2000) (quoting Estelle v. Gamble,
429 U.S. 97, 104 (1976)). This protection
is extended to arrested persons and
pretrial detainees under the Due Process
Clause of the Fourteenth Amendment. See
id. To prevail the detainee must satisfy
an objective and a subjective element,
namely that: (1) an objectively serious
injury or medical need was deprived; and
(2) the official knew that the risk of
injury was substantial but nevertheless
failed to take reasonable measures to
prevent it. See Henderson v. Sheahan, 196
F.3d 839, 845 (7th Cir. 1999). Under the
first prong, an objectively serious
injury or medical need is "’one that has
been diagnosed by a physician as
mandating treatment or one that is so
obvious that even a lay person would
easily recognize the necessity for a
doctor’s attention.’" Zentmyer, 220 F.3d
at 810 (quoting Gutierrez v. Peters, 111
F.3d 1364, 1373 (7th Cir. 1997)). The
parties do not dispute that Chapman’s
condition was serious. Under the second
prong, it must be shown "that the
official was aware of the risk and
consciously disregarded it nonetheless."
Mathis v. Fairman, 120 F.3d 88, 91 (7th
Cir. 1997) (citing Farmer v. Brennan, 511
U.S. 825, 840-42 (1994)). Neither
negligence nor even gross negligence is a
sufficient basis for liability; rather,
liability attaches only if the conduct is
intentional or criminally reckless. See
Salazar v. City of Chicago, 940 F.2d 233,
238 (7th Cir. 1991). Deliberate
indifference can arise by a failure to
provide prompt treatment for serious
medical needs or by intentionally
interfering with treatment once
prescribed. See Estelle, 429 U.S. at 104-
05.

  Chapman relies on Martin v. Board of
County Comm’rs, 909 F.2d 402 (10th Cir.
1990) to argue that the officers were
deliberately indifferent by intentionally
interfering with treatment prescribed by
her doctor. Chapman contends that her
doctor proscribed her from taking stairs,
that she told the officers of this
proscription, and that they interfered
with it by assisting her in doing exactly
what her doctor proscribed her from
doing. There is no evidence, however,
that the doctor totally prohibited
Chapman from taking stairs. As the
district court noted, the evidence
suggests "at most, that her physician
told her to avoid stairs in general, and
to climb stairs one at a time." Indeed,
Chapman’s own deposition testimony is
that the doctor told her that if she took
stairs to take them "one at a time."
Also, the written discharge record only
forbade "heavy lifting," not stair
climbing. The record, therefore, reflects
that the doctor’s "prescribed treatment"
was not to avoid stairs altogether. Based
on the record evidence, we cannot
conclude that the officers deliberately
disregarded the doctor’s prescribed
treatment for Chapman by assisting her in
stepping into the van.

  Further, even if the doctor had totally
prohibited Chapman from stair climbing,
there is no evidence that the officers
were aware of this blanket ban. True,
Chapman told the police of her doctor’s
orders when she said, "the step is too
high, the doctor told me not to take the
stairs except one at a time." However,
this statement did not convey to the
officers that she had to avoid steps
altogether. The district court correctly
reasoned:

The difference between the allegations in
Chapman’s complaint and the actual
evidence is critical on this point. If
defendants were informed that a physician
instructed Chapman not to climb any
stairs, that is a far different matter
than if they were informed that a
physician told Chapman to take stairs one
at a time. Requiring Chapman to climb
into the van represents a clear disregard
of the former, but only a potentially
negligent interpretation of the latter.
If defendants knew that Chapman was
permitted to climb stairs under limited
circumstances, they may have believed
that assisting her into the van would be
permissible under the physician’s
instructions.

The officers heeded the doctor’s
directive, precisely as Chapman told
them, by requiring Chapman to take only
one step. Chapman though makes much of
the fact that the step into the van was
twice the height of an ordinary stair,
arguing that the officers disregarded her
doctor’s orders by making her essentially
take two steps. This is of no matter
since the officers heeded Chapman’s
protestation that the step was too high
in assisting her into the van by support
ing her weight on each side.

  We agree with the district court that
the officers requiring Chapman to step up
so high, even with their assistance, may
well constitute some form of negligence,
but it does not constitute deliberate
indifference. If the officers were aware
that Chapman was prohibited from climbing
all stairs, disregarded this and required
her to step into the van, then perhaps
the officers’ conduct would constitute
deliberate indifference. See Zentmyer,
220 F.3d at 812 ("If a defendant
consciously chose to disregard a nurse or
doctor’s directions in the face of
medical risks, then he may well have
exhibited the necessary deliberate
indifference."). However, this was not
the case here because the officers did
not consciously disregard the doctor’s
order.

  The district court also found that the
officers were not deliberately
indifferent because there is no evidence
that the officers knew or reasonably
should have known that Chapman’s incision
had opened. Chapman did not tell the
officers and there was no evidence that
the officers saw any blood. The court
reasoned that the officers could have
reasonably believed that her sobbing and
shaking were "natural responses to being
placed under arrest," and not a sign that
she needed medical attention. On appeal
Chapman does not raise the question of
whether the officers were deliberately
indifferent after her incision had
opened; rather, she focuses solely on the
officers requiring her to step into the
van. Since her appellate brief does not
argue that the officers’ failure to get
her medical attention violated the
Fourteenth Amendment, we do not address
the issue.

II. Count II:   Fourth Amendment--Excessive
Force

  The Fourth Amendment protects citizens
against the use of excessive force during
an arrest. See Graham v. Connor, 490 U.S.
386, 388 (1989). A seizure occurs if a
government actor "’by means of physical
force or show of authority, . . . in some
way restrain[s] the liberty of a citizen.’"
Id. at 395 n.10 (quoting Terry v. Ohio,
392 U.S. 1, 19 n.16 (1968)). Whether
excessive force was used is evaluated
under the "objective reasonableness"
standard, under which courts assess
whether the actor’s actions were
objectively reasonable "’in light of the
facts and circumstances confronting them,
without regard to their underlying intent
or motivation.’" Id. at 397. We agree
that the officers did not use excessive
force in arresting Chapman. As explained,
Chapman told the officers that the doctor
said she could only take stairs one at a
time, and the officers did not contravene
this order. Knowing just this
information, it was reasonable for the
officers to believe that assisting
Chapman into the van would not violate
the doctor’s order. In light of the facts
and circumstances, the officers were not
objectively unreasonable when they
required Chapman to step into the van and
assisted her in doing so.

III. Count III:    Illinois Law--Willful and
Wanton Conduct

  Conduct is willful and wanton under
Illinois law if it constitutes "a course
of action which shows an actual or
deliberate intention to cause harm or
which, if not intentional, shows an utter
indifference to or conscious disregard
for the safety of others or their
property." 745 ILCS 10/1-210. Illinois
recognizes that negligence and willful
and wanton conduct are different, see
Burke v. 12 Rothschild’s Liquor Mart,
Inc., 593 N.E.2d 522, 531 (Ill. 1992);
Loitz v. Remington Arms Co., Inc., 563
N.E.2d 397, 402 (Ill. 1990), because
"willful and wanton conduct carries a
degree of opprobrium not found in merely
negligent behavior . . . ." Burke, 593
N.E.2d at 532. Willful and wanton conduct
"’approaches the degree of moral blame
attached to intentional harm, since the
defendant deliberately inflicts a highly
unreasonable risk of harm upon others in
conscious disregard of it.’" Loitz, 593
N.E.2d at 402 (citation omitted). We have
found that the standard for assessing
whether conduct is willful and wonton is
"remarkably similar" to the
deliberateindifference standard. See
Payne for Hicks v. Churchich, 161 F.3d
1030, 1041 n.13 (7th Cir. 1998). Given
this similarity, summary judgment was
proper under Count Three just as under
Count One, and therefore, we AFFIRM the
grant of summary judgment in favor of
Keltner and Williams on all three counts.
