9 F.3d 1198 (7th Cir. 1993), 92-3631, Buttitta v. City of Chicago

Docket Nº:92-3631.
Citation:9 F.3d 1198
Party Name:Frank BUTTITTA, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees.
Case Date:November 09, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1198

9 F.3d 1198 (7th Cir. 1993)

Frank BUTTITTA, Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al., Defendants-Appellees.

No. 92-3631.

United States Court of Appeals, Seventh Circuit

November 9, 1993

Page 1199

[Copyrighted Material Omitted]

Argued Sept. 21, 1993.

Rehearing Denied Dec. 15, 1993.

Page 1200

Anthony S. DiVincenzo (argued), Campbell & DiVencenzo, Rick M. Schoenfield, Schoenfield & Swartzman, Chicago, IL, for plaintiff-appellant.

Patricia M. Carroll-Smit, Asst. Corp. Counsel, Amy E. Neuman, Lawrence Rosenthal, Deputy County Council, Mardell Nereim (argued), Kelly R. Welsh, Asst. Corp. Counsel, Eileen Brewer, Benna R. Solomon, Office of the Corp. Counsel, Appeals Div., Chicago, IL, for defendants-appellees.

Before FLAUM and ROVNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

FLAUM, Circuit Judge.

This case presents an issue of first impression requiring this court to construe Section 5-156 of the Illinois Pension Code. 40 ILCS 5/5-156. In 1986, Chicago police officer Frank Buttitta ("Buttitta") suffered an ankle injury in the line of duty that caused him to go on disability leave. In 1989 and again in 1991, the Chicago Police Department ("Police Department") refused to reinstate Buttitta to active duty despite the fact that on both occasions the Retirement Board of the Policeman's Annuity and Benefit Fund ("Board") had "returned [Buttitta] to active service," pursuant to Section 5-156. Buttitta then sued the City of Chicago ("City") under 42 U.S.C. Sec. 1983, alleging that by failing to reinstate him, both in 1989 and in 1991, the City had deprived him of a property interest created by Section 5-156 without due process of law. The district court dismissed Buttitta's claim and granted summary judgment for the City. On appeal, Buttitta asserts that the district court erroneously construed Section 5-156. We conclude that the district court erred in its construction of Section 5-156; nevertheless we affirm because we find that Buttitta has not suffered a deprivation of a protectible property interest.

I.

Officer Buttitta joined the Chicago Police Department in 1967. In March, 1986, Buttitta injured his ankle in the line of duty and was placed on the police department's Medical Roll. On September 5, 1987, the Board awarded Buttitta duty disability benefits, entitling Buttitta to 75% of his normal salary, but removing him from the Medical Roll and thus from active duty.

On May 24, 1989, Dr. Richard Brash, a private orthopedic surgeon, advised Buttitta that he could return to work. On June 7, 1989, Dr. S. David Demorest, the Board's staff physician, examined Buttitta and concurred with Dr. Brash's assessment. On June 29, 1989, James B. Waters, Jr., the Executive Director of the Pension Board, sent a letter to the Police Department concluding as follows:

[O]n the recommendations of Dr. Demorest and Dr. Brash we are returning Officer Buttitta to you for assignment, in accordance with the provisions of Chapter 108 1/2, Article 5-156 of the Police Pension Act.

Following the communication from the Board, the Police Department's Medical Services Section examined Buttitta as required by the Police Department's General Order No. 40-5. 1 The Police Department agreed with the Board's determination that Buttitta was no longer disabled by the ankle injury. However, on July 13, 1989, the Commander of the Personnel Division of the Police Department sent a letter to Buttitta denying his reinstatement because of a "significant elevation of hepatic enzymes, indicative of an active inflammatory process in the liver."

On October 26, 1989, the Board adjusted Buttitta's status from "duty disability" to "ordinary disability" in order to reflect the fact that Buttitta's current disability--the liver inflammation--was not duty related. Accordingly, Buttitta's disability benefit was reduced from 75% to 50% of of salary, using as a base the salary Buttitta would have been receiving had he been an active employee on July 13, 1989, the date on which the police

Page 1201

department informed him that he would not be returned to active duty. 2

In 1991, Buttitta again sought reinstatement. Buttitta's personal physician, Dr. Hillary Neybert, examined him on February 25, 1991, and summarily declared him "medically fit for active police service." The Board's physician, Dr. Demorest, then re-examined Buttitta on March 16, 1991. Dr. Demorest's report offered no opinion on Buttitta's fitness for duty, concluding:

It would thus seem that his prior liver enzyme elevation has not resolved. Officer Buttitta was denied reinstatement by the police surgeon previously due to elevated enzymes. His condition remains unchanged, albeit not serious. I would be interested in hearing the police surgeon's comments.

Despite Dr. Demorest's report, the Board again returned Officer Buttitta to the police department for assignment. In a May 2, 1991, letter communicating the Board's decision, Executive Director Waters specifically relied on Dr. Neybert's recommendation and did not mention Dr. Demorest's report. The Police Department again examined Buttitta, and again refused reinstatement because of "continued elevation of liver enzymes indicative of liver dysfunction."

On February 21, 1992, Dr. Demorest examined Buttitta for a third time. In his April 2, 1992, report, Dr. Demorest diagnosed Buttitta with alcoholic hepatitis and concluded that "[b]ased on his current exam and blood test, Officer Buttitta is unable to return to full active police duty." No later medical reports appear in the record.

On May 19, 1992, Buttitta's counsel requested "a full hearing from the [Pension] Board regarding Officer Buttitta's fitness" for active duty. Counsel asserted that Buttitta had stopped drinking and had received counseling regarding his alcohol use. No response to that request is reflected in the record. Buttitta then commenced his Sec. 1983 action in federal district court, alleging that the City deprived him of a property interest created by Section 5-156 without due process of law by failing to reinstate him to active service in 1989 and 1991.

II.

The Due Process Clause of the Fourteenth Amendment forbids a state from depriving any person of life, liberty, or property without due process of law. The Supreme Court has interpreted the constitutional guarantee of due process to encompass both procedural and substantive rights. Officer Buttitta asserts that his claim "has always been for denial of procedural due process." Appellant's Reply Br. at 16. Due process is a flexible concept which "calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); Perry v. F.B.I., 781 F.2d 1294, 1303 (7th Cir.) (en banc), cert. denied, 479 U.S. 814, 107 S.Ct. 67, 93 L.Ed.2d 25 (1986). However, "the range of interests protected by procedural due process is not infinite." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). In this case, to sustain a claim under the due process clause Buttitta must demonstrate: (1) a cognizable property interest; (2) a deprivation of that property interest; and (3) a denial of due process. See Schroeder v. City of Chicago, 927 F.2d 957, 959 (7th Cir.1991); Bigby v. City of...

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