Filed: May 07, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1002 VINCENT CAMASTRO, Plaintiff - Appellant, v. CITY OF WHEELING; BARRY CROW, individually and in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. FA
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1002 VINCENT CAMASTRO, Plaintiff - Appellant, v. CITY OF WHEELING; BARRY CROW, individually and in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. FAB..
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 policy-
making 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 self-
help, 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
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.
9
