UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1002

VINCENT CAMASTRO, 

 Plaintiff - Appellant, 

 v. 

CITY OF WHEELING; BARRY CROW, individually and in his 

capacity as a City Councilman, 

 Defendants - Appellees. 

Appeal from the United States District Court for the Northern 

District of West Virginia, at Wheeling. Frederick P. 

Stamp, Jr., Senior District Judge. (5:06-cv-00069-FPS) 

Argued: March 24, 2009 Decided: May 7, 2009 

Before DUNCAN and AGEE, Circuit Judges, and David A. FABER, 

Senior United States District Judge for the Southern District of 

West Virginia, sitting by designation. 

Affirmed by unpublished per curiam opinion. 

Peter Michael Suwak, Washington, Pennsylvania, for Appellant. 

Bradley K. Shafer, STEPTOE & JOHNSON, LLP, Wheeling, West 

Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Vincent Camastro appeals the district court’s grant of 

summary judgment against him on First Amendment retaliation 

claims that he brought against the City of Wheeling under 42 

U.S.C. § 1983. For the reasons discussed below, we affirm. 

I. 

 Appellant Vincent Camastro (“Camastro”) and the City of 

Wheeling (“City”) have long had a contentious relationship. The 

litigation that formed the basis of this appeal grew out of 

Camastro’s unsuccessful attempt in 1994 to obtain a zoning 

variance to construct a four-bay carwash on a piece of property 

he owned. When the City denied his request for a variance, 

Camastro responded by putting up signs on his lot. The signs 

read as follows: 

THE CITY OF WHEELING HAS CHEATED ME. THEY STOPPED ME 

FROM BUILDING A CAR WASH. I WAS CENSORED AT CITY 

COUNCIL JULY 5TH AND NOT ALLOWED TO SPEAK. LOOK AT 

WHAT THEY ARE DOING TO WHEELING. I WAS STOPPED FROM 

PRESENTING EVIDENCE TO A GRAND JURY AGAINST CORRUPT 

CITY OFFICIALS. 

JA 150a (capitalization in original).1 

 1

In addition to the signs, Camastro launched an aggressive 

litigation campaign, filing at least eleven lawsuits against the 

City regarding the carwash, a billboard business, and a proposed 

video lottery café. See JA 160a-61a. 

2 
 Camastro admits that he never applied for the permits 

required by City ordinance to erect the signs. In 2001, the 

City sued Camastro in state court seeking enforcement of the 

ordinance and removal of the signs. In 2008, the court finally 

granted the City’s request and ordered Camastro to remove the 

signs. City of Wheeling v. Camastro, No. OI-C-425 (Cir. Ct. of 

Ohio County, W. Va. Feb. 6, 2008) (opinion reproduced at JA 

383a-84a). 

 In the interim, however, Camastro alleges that on two 

specific occasions the City retaliated against his exercise of 

his First Amendment right to erect the signs. First, Camastro 

points to comments made by Wheeling City Councilman Barry Crow 

that were reported in the local newspaper and covered by local 

television media. Crow made these statements on June 10, 2004, 

while litigation over the signs was still pending in state 

court. In reference to the length of time the City’s request to 

remove the signs had gone unaddressed by the court, Crow was 

quoted as saying: “How many years does it take? . . . I want 

the city to take them down and if he wants to, he can take us to 

court.” JA 185a. Camastro asserts that, approximately a week 

after Crow’s statement, his signs were torn down by unknown 

individuals. JA 286a-87a. Camastro acknowledges that, even 

prior to Crow’s statement, the signs had been torn down 

approximately twenty times. JA 285a-86a. And, as he had done 

3 
every other time the signs were torn down, Camastro replaced 

each sign with another bearing the same message. JA 290a; Br. 

of Appellant at 8-9. 

Camastro’s second claim is that his First Amendment rights 

were violated by a letter sent to him from the City Solicitor. 

The letter, dated August 19, 2005, stated: 

Mr. Camastro: 

Please do not misquote me again. I am referring to 

your August 17, 2005 correspondence attached. I 

attempted to be helpful to you and only stated that 

your current project at 2076 Nation Road would be 

reviewed separately from the belated Lumber Avenue 

incomplete application submitted in the later part of 

the afternoon on Tuesday, August 16, 2005. 

Please be advised that due to your outright inaccurate 

misstatements, do not contact this department by 

telephone or in person again. I will also not respond 

to the other false allegations and requests made by 

you in correspondence and shall advise other City of 

Wheeling Departments to similarly respond. 

Sincerely, 

[City Solicitor] 

JA 151a. It is undisputed that Camastro continued to contact 

the City in spite of the letter. For example, Camastro 

testified that he spoke with City administrator Tom Conley 

regarding a video lottery café project. JA 189a-90a. Camastro 

also admitted that the City Solicitor provided him assurances 

that the City would not interfere with his “right to communicate 

with city departments.” JA 148a. 

4 
 On June 7, 2006, Camastro filed suit in federal district 

court in the Northern District of West Virginia primarily 

alleging First Amendment violations by the City and Councilman 

Crow under 42 U.S.C. § 1983. The district court granted summary 

judgment in favor of the defendants, holding that neither Barry 

Crow nor the City Solicitor, acting alone, had final policymaking authority for the City and that, as a result, neither 

Crow’s statement nor the City Solicitor’s letter were actionable 

under § 1983.2 This appeal followed. 

II. 

 We have jurisdiction over this appeal from a final decision 

of the district court under 28 U.S.C. § 1291. We review de novo 

the district court’s grant of summary judgment, taking the facts 

and drawing all permissible inferences in the light most 

favorable to non-moving party. Steelman v. Hirsch, 473 F.3d 

124, 127 (4th Cir. 2007). 

 2

The district court declined to exercise supplemental 

jurisdiction over a separate claim brought under a state civil 

rights statute, and Camastro does not pursue that claim here. 

5 
III. 

 Camastro asserts First Amendment retaliation claims based 

on Councilman Crow’s statement and on the City Solicitor’s 

letter. Neither constitutes actionable conduct. 

 It is well settled that “[t]he First Amendment right to 

free speech includes not only the affirmative right to speak, 

but also the right to be free from retaliation by a public 

official for the exercise of that right.” Suarez Corp. Indus. 

v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). “However, not 

every reaction made in response to an individual’s exercise of 

his First Amendment right to free speech is actionable 

retaliation.” Id. Accordingly, we have held that a First 

Amendment retaliation claim brought under 42 U.S.C. § 1983 must 

include three elements: 

First, the plaintiff must demonstrate that his or her 

speech was protected. Second, the plaintiff must 

demonstrate that the defendant’s alleged retaliatory 

action adversely affected the plaintiff’s 

constitutionally protected speech. Third, the 

plaintiff must demonstrate that a causal relationship 

exists between [the] speech and the defendant’s 

retaliatory action. 

Id. (citations omitted) (emphasis added). With respect to the 

second prong, a plaintiff must show that the retaliatory conduct 

“would likely deter a person of ordinary firmness from the 

exercise of First Amendment rights.” Constantine v. Rectors and 

6 
Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 

2005) (citations and punctuation omitted). 

Further, when the alleged retaliatory act is itself in the 

form of speech, “a public official’s own First Amendment speech 

rights are implicated,” such that “in the absence of a threat, 

coercion, or intimidation intimating that punishment, sanction, 

or adverse regulatory action will imminently follow,” such 

speech is not actionable retaliatory conduct. Suarez, 200 F.3d 

at 687. 

A. 

We turn first to Councilman Crow’s statement. On June 10, 

2004, while litigation over the signs was pending, the following 

statement was attributed to Crow in the local media: “I want the 

city to take them down and if he wants to, he can take us to 

court.” JA 185a. Because Crow’s comment constitutes speech, we 

must first determine whether it constitutes “a threat, coercion, 

or intimidation intimating that punishment, sanction, or adverse 

regulatory action will imminently follow.” Suarez, 200 F.3d at 

687. We conclude that it does not. On its face, the statement 

is no more than that of one councilman expressing his personal 

desire that the city take the signs down. The councilman is not 

announcing a new City policy or issuing an ultimatum. He is 

expressing a personal view that the City should engage in selfhelp, not exhorting any individual to do anything. 

7 
Even if the statement could be read as intimating imminent 

sanction, however, it would still fail to constitute actionable 

retaliatory conduct. Crow’s statement alluded to nothing more 

than removal of the signs. The City was already seeking

precisely that relief in its then-pendent suit. As such, even 

if a reasonable person could interpret the statement as 

threatening punishment in the form of removal of the signs, it 

would bring little additional leverage to bear, and thus would 

not “deter a person of ordinary firmness from the exercise of 

First Amendment rights.” Constantine, 411 F.3d at 500 

(citations and punctuation omitted). 

B. 

 We turn next to Camastro’s claim of “retaliation for 

Plaintiff’s right to petition.” See Br. of Appellant at 2. 

Camastro bases this claim on the letter from the City Solicitor, 

which read in part: 

Please be advised that due to your outright inaccurate 

misstatements, do not contact this department by 

telephone or in person again. I will also not respond 

to the other false allegations and requests made by 

you in correspondence and shall advise other City of 

Wheeling Departments to similarly respond. 

JA 151a. Camastro reads this letter as “cutting off Plaintiff’s 

access to all of the departments in the City-County Building.” 

Br. of Appellants at 35. Nevertheless, Camastro acknowledges 

that, even before he filed a complaint in this case, the City 

8 
9 

Solicitor provided him assurances that the City would not 

interfere with his “right to communicate with city departments.” 

JA 148a. And Camastro admits to having continued contact with 

City officials even after receiving the letter. As such, it is 

plain that the City Solicitor’s letter, coupled with her 

subsequent assurances that the City would not restrict 

Camastro’s access to City departments, falls far short of the 

sort of retaliatory conduct that would “deter a person of 

ordinary firmness from the exercise of First Amendment rights.” 

Constantine, 411 F.3d at 500 (citations and punctuation 

omitted). This conclusion is especially easy to draw given that 

the City Solicitor’s conduct failed to halt Camastro’s ongoing 

contact with the City. See id. (“[While not dispositive,] the 

plaintiff’s actual response to the retaliatory conduct provides 

some evidence of the tendency of that conduct to chill First 

Amendment activity.”). 

IV. 

 Having concluded that Camastro’s retaliation claims must 

fail for the reasons stated above, we need not consider whether 

the claims might also fail on myriad other grounds, including 

those raised in the briefs and the opinion below. 

 For the foregoing reasons the decision below is 

AFFIRMED.