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June 27, 1989

CITY OF CHICAGO, JOHN J. TULLY, and AUDLEY CONNOR, individually and as agents of the Chicago Fire Department, Defendants

The opinion of the court was delivered by: BUA


 Plaintiff claims that defendants arbitrarily removed him from the payroll of the Chicago Fire Department. Plaintiff also blames defendants for the delay in his receipt of disability benefits. Based on these allegations, plaintiff has filed suit pursuant to 42 U.S.C. § 1983 and 29 U.S.C. § 794. His three-count complaint asserts violations of procedural due process, substantive due process, and the Rehabilitation Act of 1973. Defendants now move to dismiss a substantial portion of plaintiff's complaint. In the same motion, defendants seek dismissal of the City of Chicago from Counts I and II of the complaint. For the reasons stated herein, the court grants defendants' motion.


 For nearly 20 years, plaintiff Bernard Schroeder worked as a firefighter for the City of Chicago. While fighting a fire on October 23, 1985, Schroeder suffered injuries to his back, head, and neck. These injuries rendered Schroeder incapable of remaining on active duty. As a result, he began an extended medical lay-up. During the first ten months of 1986, Schroeder underwent a series of physical examinations - three by his personal physician, two by a doctor whom the Chicago Fire Department had recommended. Following these examinations, both doctors told Fire Department officials that Schroeder was unable to resume active duty.

 On November 15, 1986, Chief John Tully, the Fire Department's Director of Personnel, allegedly removed Schroeder from the Fire Department payroll without giving Schroeder notice or a hearing. According to the complaint, Tully discharged Schroeder based on unfounded allegations that Schroeder had engaged in alcohol abuse during his tenure with the Fire Department.

 After his removal from the payroll, Schroeder applied for duty disability benefits pursuant to the Illinois Pension Code, Ill. Rev. Stat. ch. 108 1/2, para. 6-151 (1987). Although Schroeder ultimately received an award of benefits, the Retirement Board of the Firemen's Annuity and Benefit Fund ("the Retirement Board") did not process Schroeder's application until eight months had elapsed. Schroeder attributes this eight-month delay to the actions of Tully and Dr. Audley Connor, Director of the Fire Department's Medical Section. Initially, the Retirement Board refused to consider Schroeder's eligibility for benefits until it received a discharge certificate from the Fire Department. Tully and Dr. Connor allegedly failed or refused to provide such a discharge certificate to the Retirement Board.


 Schroeder's complaint names three defendants: Tully, Dr. Connor, and the City of Chicago. The complaint alleges that defendants arbitrarily discharged Schroeder and improperly obstructed his acquisition of disability benefits. Based on these alleged improprieties, Schroeder asserts three claims against defendants. Count I of the complaint alleges that defendants violated Schroeder's Fourteenth Amendment right to procedural due process. Count II contends that defendants infringed Schroeder's substantive due process rights under the Fourteenth Amendment. Finally, Count III maintains that defendants discriminated against Schroeder in contravention of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.

 Insofar as Schroeder bases his procedural due process claim on the delay in his acquisition of benefits, defendants move to dismiss Count I. In addition, defendants ask the court to dismiss Counts II and III in their entirety. Defendants also move to dismiss the City of Chicago from Counts I and II. The court will now examine the various aspects of defendants' motion to dismiss.

 I. Procedural Due Process

 In Count I, Schroeder claims that defendants violated his right to procedural due process in two ways - first by discharging him arbitrarily, then by impeding the processing of his application for benefits. Defendants argue that Schroeder cannot maintain a due process claim based on the delay in his receipt of disability benefits. This court agrees.

 In order to allege a violation of procedural due process, Schroeder must first establish that defendants deprived him of a property interest protected by the Fourteenth Amendment. See Cornelius v. LaCroix, 838 F.2d 207, 210 (7th Cir. 1988). Schroeder claims to possess a property interest in duty disability benefits; but "to have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). By establishing the terms of eligibility for certain benefits, state law defines the scope of an individual's property interest in those benefits. Id. Therefore, to determine the dimensions of Schroeder's property interest in disability benefits, this court must consult the state law on which Schroeder based his claim of entitlement. Under the Illinois Pension Code, an injured firefighter may not receive duty disability benefits until the Retirement Board has authorized payment of such benefits. Ill. Rev. Stat. ch. 108 1/2, paras. 6-179, 6-185 (1987). Consequently, until the Retirement Board ruled on Schroeder's application, he had no legitimate claim of entitlement to benefits. Defendants' alleged misconduct preceded the Retirement Board's ruling. Thus, at the time defendants purportedly violated his right to due process, Schroeder had only a unilateral expectation that he would receive disability benefits. Even assuming that defendants took steps to delay Schroeder's acquisition of benefits, defendants did not deprive Schroeder of a property interest that he already possessed. *fn1" For this reason, Schroeder cannot state a due process claim based on the delay in his receipt of benefits. He simply cannot invoke the Due ...

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