                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
