The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-31096
Summary Calendar
__________________
WAYNE R. CENTANNI,
Plaintiff - Appellant,
versus
HARRY LEE, in his individual capacity; ANGLO AMERICAN
INSURANCE COMPANY, LIMITED; STATE FARM INSURANCE COMPANY;
LOUISIANA SHERIFFS' RISK MANAGEMENT ASSOCIATION, Originally
sued as Louisiana Sheriff's Risk Management Program; DANIEL R.
MARTINY; FRANZ L. ZIBILICH; LEE, MARTINY & CARACCI,
Defendants - Appellees.
______________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana
(93-CV-265-C)
______________________________________________
August 28, 1996
Before DAVIS, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
Wayne Centanni appeals from adverse orders of the district
court dismissing his various § 1983 and state law claims against
Jefferson Parish Sheriff Harry Lee, the Louisiana Sheriffs' Risk
*
Pursuant to Local Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
Management Association ("LSRMA"), State Farm Fire and Casualty
Company ("State Farm"), Anglo American Insurance Company ("Anglo"),
attorneys Daniel Martiny and Franz Zibilich, and their law firm.
Having carefully reviewed the record, we affirm for essentially the
reasons provided in the district court's thorough orders.
FACTUAL AND PROCEDURAL BACKGROUND
In August 1990, Wayne Centanni, then an uncompensated
volunteer reserve deputy, and other deputies were involved in a
physical altercation with Brian Forde at a restaurant in Jefferson
Parish. Forde sued Centanni, the other deputies, and Sheriff Lee
alleging § 1983 violations. The LSRMA, the sheriff's self-
insurance program, assumed defense of Lee and the deputies in the
Forde litigation and hired the law firm of Lee, Martiny and Caracci
("LM&C") to represent the defendants. LM&C attorneys Daniel
Martiny and Franz Zibilich provided the defense. Prior to the
Forde trial, Centanni also notified his homeowner's insurer, State
Farm, of the claim against him. State Farm provided him additional
counsel while expressly reserving its right to contest coverage.
On the eve of trial in the Forde litigation, the district court1
determined that State Farm's policy did not provide coverage; State
Farm's counsel withdrew.
The Forde jury returned a verdict against the deputies,
1
Both the Forde lawsuit and this action were filed in the
Eastern District of Louisiana. Judge Feldman presided over the
Forde litigation and held that the State Farm homeowner's policy
did not provide coverage. Judge Berrigan presided over the many
orders and issues presented in Centanni's lawsuit.
2
including Centanni. It also found Lee liable under a respondeat
superior theory. After entry of judgment, LM&C appealed on behalf
of all defendants. Centanni also filed a separate pro se appeal.
Following a settlement agreement in which the other defendants
satisfied the judgment against Centanni, the LM&C appeal was
dismissed by this Court with prejudice; Centanni's independent
appeal was dismissed as moot.
While the appeals in the Forde litigation were pending,
Centanni filed this lawsuit against Lee, LSRMA, LM&C, Martiny,
Zibilich, State Farm, and an excess coverage insurer, Anglo. The
essence of his claims against the defendants was that he received
inadequate representation in the Forde litigation. Centanni
alleged that LM&C should not have been appointed to represent him
in the Forde lawsuit because the firm also represented members of
a condominium association that were involved in an unrelated civil
suit against Centanni. At bottom, Centanni asserted that the law
firm essentially "sacrificed" his interests in order to protect
Lee, such as failing to impeach the credibility of those witnesses
testifying against him. Centanni claimed these grievances amounted
to constitutional violations redressable under § 1983. Moreover,
Centanni alleged that State Farm should not have been allowed to
withdraw as counsel in the Forde litigation and that Anglo
similarly had a duty to defend.
Despite Centanni's blunderbuss approach to this lawsuit, the
district court adroitly issued a series of orders resolving his
3
complaints against each of the defendants. As to Sheriff Lee and
the other alleged state actors, the district court found there was
no clearly established constitutional right to conflict-free
counsel in this context and hence qualified immunity. Centanni's
claim of retaliatory firing was dismissed on the ground that he was
an uncompensated volunteer. Additional state law claims against
LSRMA were dismissed because, assuming a conflict existed, there
was no causal link between Centanni's alleged injury and the
conduct of Centanni's attorney in the Forde litigation. The
district court also granted summary judgment for State Farm and
Anglo on the basis that neither had a duty to defend Centanni.
Centanni now appeals each of the conclusions.
DISCUSSION
A. Claims against Lee, LSRMA, LM&C, Martiny & Zibilich
At the heart of Centanni's lawsuit is his contention that he
was denied conflict-free counsel in the Forde litigation and that
this denial rises to a constitutional dimension. The district
court dismissed these claims2 on the basis that, even assuming a
conflict existed, there was no clearly established constitutional
right to conflict-free counsel in this context. The district court
is correct.
Stripped of all the constitutional buzz words, Centanni
2
Specifically, the district court granted Lee's Rule 12(b)(6)
motion to dismiss the § 1983 claim for failure to state a claim.
Subsequently, the court granted motions for summary judgment on the
similar § 1983 claims against the remaining defendants.
4
essentially contends that if he had been appointed independent
counsel, a different trial strategy would have been used. He
further speculates that had a different plan been used, the outcome
would somehow be different. Significantly, Centanni cites no
authority for the proposition that he possessed a constitutional
right to have independent counsel appointed for him and to direct
the trial strategy in this civil lawsuit. While the right of
physical access to the courts exists and may stand to bar
impediments to filing suit, such a claim is not raised in this
case. Rather, Centanni alleges that he lacked meaningful access
because trial counsel failed to protect his interests in the Forde
litigation. However, there is no clearly established
constitutional right to the appointment of independent, conflict-
free counsel. The right to appointed counsel in civil cases is
extremely limited. See Glick v. Henderson, 855 F.2d 536, 541 (8th
Cir. 1988). If there is no right to counsel, there is obviously no
right to effective counsel. Id. Moreover, there is no clearly
established constitutional right to be free of post-filing
violations. See Foster v. City of Lake Jackson, 28 F.3d 425, 430-
31 (5th Cir. 1994). In the absence of a clearly established
constitutional right, the defendants properly invoked qualified
immunity. Because the plaintiff was unable to overcome the
immunity defense, the district court properly dismissed the § 1983
claims.
The residual state law claims similarly fall. Centanni
5
alleges retaliatory firing against Lee. It is undisputed that Lee
terminated Centanni's commission as reserve deputy following a
citizen's complaint. However, Centanni was an uncompensated,
volunteer deputy. As such, he cannot assert any protected interest
arising from continued "employment" or "firing." See Swick v. City
of Chicago, 11 F.3d 85, 86-87 (7th Cir. 1993). Moreover, Centanni
never requested a name-clearing hearing after termination as this
Court has counseled is required. See Howze v. City of Austin, 917
F.2d 208, 208 (5th Cir. 1990).
Additionally, any state law claims3 against LSRMA were
appropriately disposed by summary judgment. The district court
properly noted that, as a matter of law, Centanni could not
establish a causal link between any alleged conflict of counsel and
his asserted damages. The jury in the underlying Forde litigation
returned a verdict against Sheriff Lee and three deputies. No
reasonable juror could conclude that counsel somehow sacrificed
Centanni's interests in favor of Lee.4
3
It is unclear if Centanni asserts any claims against LSRMA
other than the § 1983 claim. In his briefing to this Court,
Centanni claims error in the dismissal of the § 1983 claim. The
district court, however, granted summary judgment against any state
law claim for failure to provide conflict-free counsel. Out of
caution, we briefly address the failure of any state claim in this
context.
4
Moreover, the specific manifestations of conflict Centanni
cites illustrate the dubious nature of this claim. Centanni
complains that members of the condominium association testified
against him in the Forde trial. However, the record reflects that
counsel objected to this testimony at trial. Additionally,
Centanni and the other defendants were represented by Zibilich at
trial while other members of the law firm were involved in the
6
B. Claims against State Farm & Anglo
The district court also granted summary judgment to two
insurers, State Farm and Anglo, on the basis that they had no duty
to provide an independent defense to Centanni. Again, this was not
error. After notification of the claim against Centanni, State
Farm initially provided independent counsel under an express
reservation of right to contest coverage in the Forde litigation.
Before trial, the Forde court specifically declared that the State
Farm homeowner's insurance policy did not provide coverage for the
claims against Centanni. State Farm's counsel naturally withdrew.
The absence of a duty to defend Centanni has been established as a
matter of law. See West v. Board of Comm'rs, 591 So.2d 1358, 1360
(La. App. 1991) (in the absence of coverage, there is no duty to
defend). To escape this fact, Centanni attempts to recast his
claim on appeal arguing that he does not seek to relitigate the
coverage issue. Rather, he claims that even though State Farm
conclusively had no duty to defend, State Farm still could not
withdraw its counsel on the eve of trial because it created undue
prejudice to Centanni.
Centanni mistakenly relies on Pareti v. Sentry Indem. Co., 536
So.2d 417 (La. 1988), for this assertion. In Pareti, the Louisiana
Supreme Court held that once a liability insurer exhausted its
policy limits through good-faith settlement, it was no longer
obligated to defend the insured in separate actions based on the
condo lawsuit.
7
same accident. 536 So.2d at 423-24. In dicta, the court noted
that the insurer should make efforts to avoid prejudicing the
insured by its timing of withdraw. Id. at 423 & n.9. However, the
language of Pareti does not extend to situations such as this one
where the insurance policy provided no coverage and hence no duty
to defend whatsoever. Additionally, we note that in this case,
State Farm specifically notified Centanni from the outset that it
would contest coverage and indicated that he should retain
additional counsel at his own expense. Finally, Centanni was not
left "high and dry" at trial, but was provided counsel by LM&C.5
Consequently, summary judgment was appropriate on the state law
claim against State Farm.
Summary judgment was also appropriate for the claim against
Anglo. Anglo provided excess coverage to the sheriff's department.
As with the other defendants, Centanni alleged that Anglo was
liable for failure to provide conflict-free counsel. However, the
unambiguous language of the Anglo policy states that it had "the
right but not the duty" to participate in the defense of claims.
Anglo chose not to provide Centanni a defense in the Forde
litigation as was its right under the contract. Centanni tries to
escape summary judgement by alleging that there is a fact issue
regarding whether Anglo participated in his defense. The summary
judgment evidence, however, reflects that at most Anglo was kept
5
We also note that the alleged conflict with counsel was not
brought to the attention of the Forde trial court until after the
adverse jury verdict was returned.
8
abreast of the Forde litigation through correspondence with LM&C.
The district court properly held that on such evidence no
reasonable juror could conclude that Anglo provided Centanni a
defense.
CONCLUSION
The district court properly dismissed the § 1983 claims
against Lee and the other alleged state actors because of qualified
immunity. Similarly, summary judgment was appropriate on the
retaliatory firing claim because Centanni was an uncompensated
volunteer and any state law claim against LSRMA because of lack of
causation. Finally, State Farm and Anglo had no duty to provide
Centanni a defense and hence no claim arises against these
insurers. The judgment of the district court is AFFIRMED.
9