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September 30, 1992

CITY OF CHICAGO, et al., Defendants.

The opinion of the court was delivered by: MILTON I. SHADUR

 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.


 Buttitta joined the Chicago Police Department ("CPD") in 1967. He went on the CPD Medical Roll after injuring his ankle in March 1986. *fn2" 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) PP 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. 108-1/2, P 5-154 *fn3" ).

 On May 24, 1989 orthopedic surgeon Dr. Richard Brash advised Buttitta that he could return to work as of May 31 (B. 12(m) P 8) *fn4" 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 108 1/2, 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 she 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) P 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 ...

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