Filed: May 27, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 5-27-2005 Virgili v. Allegheny Precedential or Non-Precedential: Non-Precedential Docket No. 04-3873 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Virgili v. Allegheny" (2005). 2005 Decisions. Paper 1120. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1120 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 5-27-2005 Virgili v. Allegheny Precedential or Non-Precedential: Non-Precedential Docket No. 04-3873 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Virgili v. Allegheny" (2005). 2005 Decisions. Paper 1120. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1120 This decision is brought to you for free and open access by the Opinions of th..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-27-2005
Virgili v. Allegheny
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3873
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Virgili v. Allegheny" (2005). 2005 Decisions. Paper 1120.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1120
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3873
ROBERT VIRGILI, JR.,
Appellant
v.
ALLEGHENY COUNTY; GARY DALEY, individually and
officially; THOMAS LEIGHT, individually and officially; WILLIAM EMERICK,
individually and officially; CALVIN LIGHTFOOT, individually and officially
and KENNETH FULTON, individually and officially
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 03-CV-01827 )
District Judge: Honorable Arthur J. Schwab
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 4, 2005
Before: McKEE, VAN ANTWERPEN and WEIS, Circuit Judges.
Filed May 27, 2005
____________
OPINION
WEIS, Circuit Judge.
After being accused of providing marijuana to an inmate, Plaintiff, a
correctional officer at the Allegheny County Jail, was suspended without pay and
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formally arrested a few days later. Following his attorney’s advice, he did not appear at a
disciplinary hearing scheduled for August 26, 2003, about seven weeks after the incident
at the jail. Virgili’s union representative was present at the hearing and took an appeal
from the adverse ruling. Virgili attended a hearing on October 16, 2003 when the warden
announced that the district attorney had dropped the criminal charges and that Virgili
would be reinstated with full back pay.
Virgili filed suit in the District Court alleging (1) that his suspension was a
denial of his Due Process rights; (2) that there was no probable cause for his arrest; and
(3) that the county was guilty of negligent supervision and training. The District Court
entered summary judgment for the defendants, including the investigating officers, county
jail officials and the county itself.
The facts are well known to the parties and need not be repeated in detail
here. Instead, we will briefly summarize the salient information.
Acting on a tip that a correctional officer would deliver drugs to an inmate
during a session at the jail library, defendants, internal security officer Leight and county
detective Daley, arranged for a search of the inmates leaving the library. Inmate Glover
was found in possession of packs of marijuana. Under questioning by Daley and Leight,
Glover implicated another inmate and Virgili. Both inmates were arrested that evening
based on an affidavits of probable cause; the affidavits described Virgili’s involvement.
On that same evening, after receiving his Miranda rights, Virgili denied
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complicity and was sent home. On the following morning, defendant Leight told Virgili
that he was suspended without pay. A few days later, an arrest warrant for Virgili was
issued and he reported to a district justice for arraignment.
Virgili alleges that the ensuing publicity damaged his reputation and
resulted in a freezing of his security clearance as a member of the Pennsylvania National
Guard.
Our review of a District Court’s decision to grant summary judgment is de
novo. Blair v. Scott Speciality Gases, 283 F.3d 595, 602-03 (3d Cir. 2002).
The District Court correctly concluded that probable cause existed for
Virgili’s arrest. The tip given in advance, the recovery of narcotics and the assertions of
inmate Glover collectively constituted grounds for believing that a crime had been
committed, despite Virgili’s denials. See, e.g., Orsatti v. New Jersey State Police, 71 F.3d
480 (3d Cir. 1995); Sharrar v. Felsing,
128 F.3d 810 (3d Cir. 1997).
Like his probable cause argument, Virgili’s argument about lack of due
process in his suspension must fail. Virgili had a constitutionally recognized property
interest in tenure in his position that is protected by notice and hearing requirements. The
notice and hearing requirements do not always require pretermination procedures. In
some situations, a hearing may take place after termination. See Gilbert v. Homar, 520
U.S. 924 (1997); McDaniels v. Flick,
59 F.3d 446 (3d Cir. 1995).
In this case, Virgili was given an opportunity to state his case to Leight and
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Daley before he was terminated and he offered to take a lie detector test. On the
following morning, however, he reversed that decision. He was scheduled for a full
hearing six weeks later, but did not take that opportunity.
It is understandable that, given the pendency of criminal proceedings, he did
not wish to testify at that time. Nevertheless, an opportunity for a prompt hearing was
provided and due process requirements made available. There is no indication that a
hearing scheduled for one or two days after the incident would likely have proceeded in
view of the pending criminal matters.
We note that full back pay was awarded and that Virgili’s status in the
Pennsylvania National Guard was reinstated. In the circumstances here, Virgili is not
entitled to a “name clearing hearing.” See Graham v. City of Philadelphia, 402 F.3d 139
(3d Cir. 2005).
The plaintiff’s charges of inadequate training and supervision must also fail
because there is no evidence of a constitutional violation caused by such factors. The due
process measures required by the county rules and practices were carried out.
Finally, we conclude that the District Court acted properly in declining to
adjudicate the state law claims. When a district court dismisses on the merits the federal
claims that initially provided jurisdiction, the proper resolution of pendent state claims is
to relinquish them to the state courts. In Pennsylvania, a state statute specifically provides
for such transfer.
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