Buttitta v. City of Chicago

• Decision Date: 30 September 1992
• Docket Number: No. 91 C 3952.,91 C 3952.
• Parties: Frank BUTTITTA, Plaintiff, v. CITY OF CHICAGO, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

803 F. Supp. 213

Frank BUTTITTA, Plaintiff, v. CITY OF CHICAGO, et al., Defendants.

No. 91 C 3952.

United States District Court, N.D. Illinois, E.D.

September 30, 1992.

COPYRIGHT MATERIAL OMITTED

Rick Schoenfield, Schoenfield & Swartzman, Chicago, Ill., for plaintiff.

Patricia Carroll-Smit, Amy Neuman, Assistants Corp. Counsel, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

In 1986 an ankle injury forced police officer Frank Buttitta ("Buttitta") to go on disability leave. Buttitta has sued the city of Chicago ("City") and its police officials Hubert Holton ("Holton") and Richard Wedgbury ("Wedgbury") under 42 U.S.C. § 1983 ("Section 1983"), seeking to force his reinstatement to active duty and to collect damages for defendants' past refusal to reinstate him.

Buttitta now moves for summary judgment as to liability under Fed.R.Civ.P. ("Rule") 56, while defendants move for summary judgment on the merits. For the reasons stated in this memorandum opinion and order, Buttitta's motion is denied, defendants' cross-motion is granted and this action is dismissed.

Facts¹

Buttitta joined the Chicago Police Department ("CPD") in 1967. He went on the CPD Medical Roll after injuring his ankle in March 1986.² On September 5, 1987 he was awarded duty disability benefits by the Retirement Board of the Policeman's Annuity and Benefit Fund (the "Board") — an action that removed him from the Medical Roll and thus from active CPD duty. While on duty disability Buttitta received 75% of his normal salary (B. 12(m) ¶¶ 1-6). It would appear that the ankle injury was work-related, for otherwise he would not have been entitled to duty disability under the governing statute (Ill.Rev.Stat. ch. 108½, ¶ 5-154³).

On May 24, 1989 orthopedic surgeon Dr. Richard Brash advised Buttitta that he could return to work as of May 31 (B. 12(m) ¶ 8)⁴. On June 7 Dr. S. David Demorest, the Board's staff physician, examined Buttitta and concurred with Dr. Brash (B. Ex. A):

At this time, I find no reason to continue disability and recommend that Officer Buttitta return to the police department.

Three weeks later, by letter dated June 29, the Board's Executive Director James Waters ("Waters") communicated the Board's concurrence with those conclusions to Holton, Commander of the CPD's Personnel Division (B. Ex. B):

On the recommendations of Dr. Demorest and Dr. Brash we are returning Officer Buttitta to you for assignment, in accordance with the provisions of Chapter 108½, Article 5-156 of the Police Pension Act.

Buttitta then underwent blood chemistry tests on July 7. Reviewing the test results, Dr. Demorest concluded that Buttitta suffered from "an abnormality of liver enzymes" as well as elevations of uric acid, blood sugar and cholesterol — problems that might signal mild diabetes or alcohol-related liver injury, among other conditions (B. Ex. D):

It is my recommendation that Mr. Buttitta follow-up with his personal physician regarding these abnormalities.... Hopefully these problems will lend themselves to correction and hopefully he will be able to then reapply for a position with the police department.

Dr. Demorest did not specifically say whether he thought the "abnormalities" precluded Buttitta from active police duty.

After Buttitta had undergone a physical examination by the CPD's Medical Services Section, Holton wrote to him on July 13 (B. Ex. C):

Reinstatement to the Department is contingent upon meeting the standard of being able to perform unrestricted police duties. The examination by the CPD discloses significant elevation of hepatitic enzymes, indicative of an active inflammatory process in the liver. Advise work-up and treatment before proceeding with medical review.

Because of the above cited variables, your reinstatemnt sic to the Department will not be granted.

CPD officials uniformly agreed with the Board's determination that Buttitta was no longer disabled by the ankle injury (B. 12(m) ¶ 14).

On October 26, 1989 the Board reduced Buttitta from "duty disability" to "ordinary disability" (B. Ex. E). That change reflected the fact that Buttitta was now disabled for reasons unrelated to his police service. Any officer on ordinary disability receives 50% of salary rather than the 75% enjoyed by an officer on duty disability (Section 5-155).

Two more physical examinations followed. First Buttitta's personal physician, Dr. Hillary Neybert, examined him on February 25, 1991 and summarily declared him "fit for active police service" (B. Ex. F). Then Dr. Demorest saw him again on March 16, 1991, but his report offered no opinion on Buttitta's fitness for duty (B. Ex. G):

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.

On May 2, 1991 the Board again returned Buttitta to the CPD "for assignment" (B. Ex. H). This time Waters communicated the Board's conclusion by letter to Wedgbury, the CPD's personnel administrator. Waters specified that the Board was relying on Dr. Neybert's recommendation. He did not mention what weight, if any, the Board gave to Dr. Demorest's more cautionary report.

Again the CPD conducted its own physical exam, and again it refused reinstatement. In a letter dated June 4, 1991 Wedgbury cited "continued elevation of liver enzymes indicative of liver dysfunction" as grounds for the refusal (B. Ex. I).

Dr. Demorest examined Buttitta for the third time on February 21, 1992. Buttitta admitted to drinking 12 beers a day, though he was trying to cut back. Dr. Demorest concluded (B. Ex. J, emphasis added):

Officer Frank Buttitta has liver induced injury secondary to his alcohol intake (alcoholic hepatitis). I believe this gentleman has a much greater problem than previously realized. I also believe that he down plays sic the amount of alcohol and the problem alcohol has in his life. Based 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 wrote to Waters to request "a full hearing from the Board regarding Officer Buttitta's fitness" for active duty (B. Ex. K). He asserted that Buttitta had stopped drinking and had received counseling regarding his alcohol use. No response to that request is reflected in the record.

Despite returning Buttitta to the CPD for "active service," the Board has made disability payments to Buttitta without interruption from September 5, 1987 to the present (Waters Aff. ¶ 2). There is some dispute about whether such continuing payments reflect the Board's judgment that Buttitta remains disabled. It appears that the Board continued to pay his disability benefits in 1989 — despite returning him to the CPD for active service on June 29 of that year — merely to ensure that he would have some income until his reinstatement took effect (B.R.Mem. 2, citing Waters Dep. 24-25, 35-36, 43). Since the CPD declined to reinstate Buttitta in 1991, the Board has continued to make the disability payments because it believes that Buttitta suffers from a disabling liver condition (Waters Aff. ¶ 3).

Procedural Background

Buttitta filed his three-count Complaint on June 25, 1991 to recover damages, fees and costs, as well as seeking a mandatory injunction reinstating him to active duty. Count I related to the CPD's 1989 decision not to reinstate Buttitta and named Holton as defendant. Count II related to the similar decision in 1991 and named Wedgbury as defendant. Finally, Count III charged that both the 1989 and 1991 actions stemmed from City's "policy or custom" of conducting its own medical review to determine whether an officer deemed no longer disabled by the Board is actually fit for duty. That allegation, if proved, would make City liable for the actions of Holton and Wedgbury (Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).

After discovery Buttitta filed his present motion, seeking summary judgment as to liability only. That motion is now fully briefed (defendants having obtained leave to file a brief surreply memorandum). At the close of their brief in opposition to Buttitta's motion, defendants requested summary judgment or, in the alternative, denial of Buttitta's motion. That motion too is ripe for decision.

Rule 56 Standards

Rule 56 requires this Court to rule in favor of the moving party if "there is no genuine issue as to any material fact and ... he is entitled to a judgment as a matter of law." "Genuine" issues exist if the record evidence would permit a reasonable factfinder to adopt the view of the nonmoving party (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Old Republic Ins. Co. v. Federal Crop Ins. Corp., 947 F.2d 269, 274 (7th Cir.1991.)). "As to materiality, the substantive law will identify which facts are material" (Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir.1991)).

It is the movant's burden to establish the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). In deciding whether that burden has been met, the court must draw "all reasonable inferences" in favor of the nonmovant (Allensworth v. General Motors Corp., 945 F.2d 174, 178 (7th Cir. 1991)), and must resolve factual disputes in the nonmovant's favor as well (Anderson, 477 U.S., at 255, 106 S.Ct. at 2513 ("evidence of the nonmovant is to be believed")). Where as here cross-motions are involved, the court must extend to each party the benefit of any factual doubt when considering the other's motion — a Janus-like perspective that...