author: WINTER, Circuit Judge:

text:
    AURORA MARITIME CO. and Medmar, Inc., Plaintiffs-Appellees, v. ABDULLAH MOHAMED FAHEM & CO., Defendant. The Hongkong & Shanghai Banking Corporation Limited, Garnishee-Appellant.
    No. 1102, Docket 95-7820.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 2, 1996.
    Decided May 20, 1996.

      David R. Gelfand, Milbank, Tweed, Hadley & McCloy, New York City (Russell E. Brooks, of counsel), for Garnishee-Appellant.
    Thomas L. Tisdale, Tisdale & Associates, New York City (Batrick F.‘ Lennon, of counsel), for Plaintiffs-Appellees.
    Before: OAKES, KEARSE, and WINTER, Circuit Judges.
   WINTER, Circuit Judge:

The Hongkong and Shanghai Banking Corporation Limited (“HSBC”) appeals from Judge Sotomayor’s denial of HSBC’s motion to vacate various Supplemental Admiralty Rule B attachments of Abdullah Mohamed Fahem & Co.’s (“Fahem”) account with HSBC in favor of a state law set-off right created by New York Debtor and Creditor Law Section 151. We hold that Section 151 is preempted by Rule B and affirm.

The facts relevant to this appeal may be simply stated. Aurora Maritime Company and Medmar, Inc. entered into an agreement with Fahem to transport grain from United States ports to Yemen. Disputes concerning performance arose and were submitted to arbitration in London, England. Aurora and Medmar prevailed. On January 26, 1994, Aurora served HSBC with supplemental process of maritime attachment and garnishment under Rule B and attached Fahem’s account with HSBC. At that time, Fahem’s account had a balance of $633,713.39. During mid-May 1994 and on several subsequent occasions, Medmar served HSBC with similar Rule B process of maritime attachment. Fahem has been indebted to HSBC in excess of $56 million at all pertinent times. HSBC moved on June 24,1994 for an order vacating Aurora’s attachment so that HSBC could exercise a right of set-off against Fahem’s account under Section 151. The district court treated the motion as having been made in both the Aurora and Medmar actions and denied it. It held that “[b]ecause plaintiffs obtained Rule B attachments before HSBC exercised its set-off rights under Section 151, plaintiffs gained a limited property interest under federal law that cannot be defeated by a subsequently executed state law set-off right.” Aurora Maritime Co. v. Abdullah Mohamed Fahem & Co., 890 F.Supp. 322, 329 (S.D.N.Y.1995). The district court sua sponte certified its orders in both the Aurora and Medmar actions for immediate interlocutory appeal under 28 U.S.C. § 1292(b). We agreed to hear the consolidated appeal.

Section 151 permits debtors such as HSBC “to set off and apply against any indebtedness, whether matured or unmatured, of [a] creditor to [the] debtor, any amount owing from such debtor to such creditor, at or at any time after [the issuance of the warrant of attachment].” N.Y. Debt. & Cred. Law § 151. Perhaps more important for purposes of this appeal,

the aforesaid right of set off may be exercised by such debtor against such creditor or ... attachment creditor of such creditor, ... notwithstanding the fact that such right of set off shall not have been exercised by such debtor prior to the making, filing or issuance, or service upon such debtor of [a warrant of attachment].

Id. A garnishee’s Section 151 set-off right is, therefore, “superior to the rights of intervening judgment creditors and may be exercised even after the judgment creditor has undertaken enforcement of his claim against the judgment debtor.... [T]he arsenal of [state law] enforcement mechanisms under CPLR article 52, clearly [is] subject to the superior right of setoff [provided in Section 151].” Aspen Indus., Inc. v. Marine Midland Bank, 52 N.Y.2d 575, 582, 421 N.E.2d 808, 812, 439 N.Y.S.2d 316, 320 (N.Y.1981), quoted in 890 F.Supp. at 327. The district court held, as a matter of statutory construction, however, that a Section 151 lien priority did not apply to a federal attachment under Rule B. Acknowledging that no federal court had decided this precise issue, the court looked to our opinion in United States v. Sterling Nat'l Bank & Trust Co. of New York, 494 F.2d 919 (2d Cir.1974), and concluded that the Section 151 lien priority “is only in relation to other ‘enforcement devices’, existing under New York State law.” 890 F.Supp. at 328 (quoting Aspen, 52 N.Y.2d at 582, 439 N.Y.S.2d 316, 421 N.E.2d 808). It went on to hold that

[u]nder either § 151 or Rule B, ... a property interest is created only when a party complies with the dictates of the rule; e.g., a party must execute its right of set-off under § 151 in order to gain a recognizable legal interest in a debtor-depositor’s account. Because plaintiffs obtained Rule B attachments before HSBC exercised its set-off rights under § 151, plaintiffs gained a limited property interest under federal law that cannot be defeated by a subsequently executed state law set-off right.

890 F.Supp. at 329. The district court did not, therefore, reach the question of whether Section 151 was preempted by Rule B and found instead that the appellees’ first-in-time Rule B attachments had priority over HSBC’s later-executed set-off right.

We do not agree with the district court’s conclusion that HSBC’s set-off right and appellees’ Rule B attachments do not conflict. First, we see nothing in Aspen or the statutory language of Section 151 to indicate that Section 151’s set-off right was intended to have priority only over enforcement devices provided by New York law. Second, we disagree with the district court regarding the thrust of Sterling. Unlike the instant matter, which the district court characterized as one of “Hen priority,” 890 F.Supp. at 327, “the defense of Hen priority [was] not before us” in Sterling, 494 F.2d at 921. The issue in Sterling was, rather, whether the existence of a Section 151 set-off right meant that the bank was not holding the “property” of the taxpayer. If the bank was deemed not to hold such “property,” it would have a defense for failing to comply with an I.R.S. demand. We held that “[t]he Hteral language of § 151 ... would indicate that the fuH amount in the account is the customer’s property,” at least “[u]ntil the bank acted to restrict his right to draw on the funds.” 494 F.2d at 922. The issue presented by this case is whether Section 151 invests a garnishee with a Hen senior to a Rule B attachment. Sterling is, therefore, inappHeable.

Section 151 plainly indicates that HSBC is permitted to set off Fahem’s loan obHgation to it “notwithstanding the fact that such right of set off shall not have been exercised by [HSBC] prior to [Aurora’s and Medmar’s] making, filing or issuance, or service” of a warrant of attachment. We must, therefore, decide whether such a result is preempted by federal law. We conclude that it is.

The parties agree that the preemption issue is governed principally by American Dredging Co. v. Miller, 510 U.S. 443, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994). In American Dredging, the Supreme Court reiterated that one consequence of exclusive federal admiralty jurisdiction is that state courts “may not provide a remedy in rem for any cause of action within the admiralty jurisdiction,” id. at -, 114 S.Ct. at 985 (quoting Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124, 44 S.Ct. 274, 277, 68 L.Ed. 582 (1924)) (internal quotation marks omitted), but that when a state court exercises in personam jurisdiction, it may “adopt such remedies, and ... attach to them such incidents, as it sees fit so long as it does not attempt to make changes in the substantive maritime law,” 510 U.S. at -, 114 S.Ct. at 985 (quoting Madruga v. Superior Court of California, 346 U.S. 556, 561, 74 S.Ct. 298, 301, 98 L.Ed. 290 (1954)) (internal quotation marks and citations omitted). American Dredging also noted that a state remedy is preempted when it “works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.” 510 U.S. at -, 114 S.Ct. at 985 (quoting Southern Pacific Co. v. Jensen, 244 U.S. 205, 216, 37 S.Ct. 524, 529, 61 L.Ed. 1086 (1917)) (internal quotation marks omitted). In our view, Section 151 does both.

Maritime attachment is by any test a “characteristic feature of the general maritime law.” Although the present Rule B was promulgated under the Rules Enabling Act, 28 U.S.C. § 2071 et seq., maritime attachment is a feature of admiralty jurisprudence that antedates both the congressional grant of admiralty jurisdiction to the federal district courts and the promulgation of the first Supreme Court Admiralty Rules in 1844. See Manro v. Almeida, 23 U.S. (10 Wheat.) 473, 487-89, 6 L.Ed. 369 (1825); 7A James W. Moore et al., Moore’s Federal Practice ¶ B.02 (2d ed.1995). Indeed, the Supreme Court has recognized that “[t]he "use of the process of attachment in civil causes of maritime jurisdiction by courts of admiralty ... has prevailed during a period extending as far back as the authentic history of those tribunals can be traced.” Atkins v. The Disintegrating Co., 85 U.S. (18 Wall.) 272, 303, 21 L.Ed. 841 (1873). Rule B is simply an extension of this ancient practice. See Maryland Tuna Corp. v. The MS Benares, 429 F.2d 307, 321 (2d Cir.1970). It is also self-evident that the maritime attachment is not merely well established in admiralty, but that it is a unique, characteristic feature of that branch of our law. See Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. De Navegacion, 732 F.2d 1543, 1549 (11th Cir.1984) (admiralty rules’ “lineage sets them apart from common law based sequestration, garnishment, and attachment laws”); Grand Bahama Petroleum Co. v. Canadian Transp. Agencies, 450 F.Supp. 447, 453 (W.D.Wash.1978) (“maritime attachment is part and parcel of admiralty jurisprudence and has its justification in the maritime context”); Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty, § 1-12, at 36 (2d ed. 1975) (“The maritime lien differs from others in that it is (at least as far as ships are concerned) entirely independent of possession, is non-consentual, and is commonly said not to be extinguished by transfer to a bona fide purchaser without notice of its existence.”) (footnotes omitted). Maritime attachment is, therefore, a “characteristic feature of the general maritime” law within the meaning of American Dredging.

Section 151 also materially interferes with important purposes, and reduces the effectiveness, of maritime law. The rationale underlying maritime attachment is twofold. First, attachment provides a means to assure satisfaction if a suit is successful. See, e.g., Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 693, 70 S.Ct. 861, 867, 94 L.Ed. 1206 (1950); Chilean Line Inc. v. United States, 344 F.2d 757, 760 (2d Cir.1965). HSBC seizes on this fact to argue that Rule B is merely a “procedural” rule that does not affect a litigant’s “substantive right to recover,” and thus does not warrant preemption under American Dredging. However, this argument ignores the second purpose of maritime attachment, namely, to insure a defendant’s appearance in an action, see Swift, 339 U.S. at 693, 70 S.Ct. at 867, an aspect of attachment inextricably linked to a plaintiffs substantive right to recover. As the Supreme Court has noted,

[t]o compel suitors in admiralty (when the ship is abroad and cannot be reached by a libel in rem) to resort to the home of the defendant, and to prevent them from suing him in any district in which he might be served with a summons or his goods or credits attached, would not only often put them to great delay, inconvenience and expense, but would in many eases amount to a denial of justice.

In re The Louisville Underwriters, 134 U.S. 488, 493, 10 S.Ct. 587, 589, 33 L.Ed. 991 (1890). Without maritime attachment, defendants, their ships, and their funds could easily evade the enforcement of substantive rights of admiralty law. By permitting a bank to set off amounts owed to it against a defendant’s account notwithstanding an earlier maritime attachment, therefore, Section 151 threatens to undermine the power of federal admiralty courts sitting in New York to enforce substantive admiralty law. In effect, an admiralty defendant with a New York bank account may enjoy the beneficial use of its account by borrowing from the bank without fear of the account serving as a vehicle for the enforcement of maritime rights against it. Were other states to adopt measures similar to Section 151, the enforcement of admiralty law in the United States would be substantially undermined.

Permitting Section 151 set-off rights to displace an existing Rule B attachment would, therefore, undermine the consistent nationwide application of Rule B, resulting in a concomitant decline in the usefulness of admiralty law to the maritime community. In so concluding, we do not endorse uniformity for uniformity’s sake, but rather recognize that it is both inevitable and tolerable that there be some lack of uniformity in maritime law due to state legislation. See Jensen, 244 U.S. at 216, 37 S.Ct. at 529. Nevertheless, given the importance of maritime attachment in light of the reasons discussed above, leaving the functional usefulness of Rule B attachments to the vagaries of the laws of fifty states would create a measure of anarchy in a federal scheme designed to insure that maritime actors may be sued where their property is found. Such anarchy would be inconsistent with an ancient purpose of admiralty law in providing convenient fora for those who want to enforce rights under maritime law against hard-to-catch defendants. It would also be detrimental to international commerce. Indeed, in light of the mobility of maritime defendants and their capital, permitting Section 151 to trump Rule B attachments would undermine “a rule upon which maritime actors rely in making decisions about primary conduct — how to manage their business and what precautions to take.” American Dredging, 510 U.S. at - - -, 114 S.Ct. at 988-89.

We therefore affirm.

      . Appellees informed us that there is a dispute over whether Medmar successfully attached Fa-hem’s accounts with HSBC. This issue does not, however, affect the disposition of this appeal.


source: Caselaw Access Project

author: JON O. NEWMAN, Chief Judge.

license: Public Domain

text:
    STONEWALL INSURANCE COMPANY, Plaintiff-Appellant-Cross-Appellee, v. ASBESTOS CLAIMS MANAGEMENT CORPORATION, Defendant-Appellee-Cross-Appellant, Liberty Mutual Insurance Company, Underwriters At Lloyds, Continental Casualty Company, American Motorists Insurance Company, Affiliated FM Insurance Company, Republic Insurance Company, First State Insurance Company, United States Fire Insurance Company, Houston General Insurance Company, Twin City Fire Insurance Company, Old Republic Insurance Company, American Centennial Insurance Company, The Constitution State Insurance Company, Employers Insurance Of Wausau, and Commercial Union Insurance Company, Defendants-Appellants-Cross-Appellees, and The Travelers Insurance Company, et al., Defendants. ASBESTOS CLAIMS MANAGEMENT CORPORATION, Third-Party-Plaintiff-Appellee-Cross-Appellant, v. INTERNATIONAL INSURANCE COMPANY, Third-Party-Defendant-Appellant-Cross-Appellee, and H.S. Weavers (Underwriting) Agencies, Ltd., Third-Party Defendant.
    No. 1300, Docket 93-7314(L).
    United States Court of Appeals, Second Circuit.
    Submitted Feb. 12, 1996.
    Decided May 20, 1996.

      Before NEWMAN, Chief Judge, and WINTER and MAHONEY, Circuit Judges.
   Petition for Rehearing

JON O. NEWMAN, Chief Judge.

The Asbestos Claims Management Corporation (“ACMC”) petitions for rehearing of our December 13, 1995, decision resolving numerous issues arising in a complex appeal by several insurers and a cross-appeal by ACMC concerning insurance coverage for asbestos-related injuries. See Stonewall Insurance Co. v. Asbestos Claims Management Corp., 73 F.3d 1178 (2d Cir.1995). The petition primarily seeks reconsideration of that aspect of our decision that affirmed, with one modification, the District Court’s method of allocating responsibility among ACMC and its insurers for asbestos bodily injury claims that trigger multiple policies.

The District Court had ruled, on motion for summary judgment, that the obligations of all triggered policies were to be prorated based upon the policies’ respective triggered time periods with one significant qualification. That qualification, referred to as the “proration-to-the-insured approach,” required the insured to bear a pro rata share of payment obligations for any periods in which the insured had no insurance, either because it did not purchase insurance or because the insurance it purchased had been consumed by prior payments. In effect, the insured was treated for uninsured periods as if it was an insurer that had issued an insurance policy to itself, and it was included in the allocation formula in the same way as the other insurers.

We affirmed the District Court’s allocation method, including the proration-to-the-insured approach, with one modification. We relieved the insured of a pro rata obligation for time periods after 1985 because, from that point on, the insurers’ policies included asbestos exclusion clauses. See Stonewall, 73 F.3d at 1201-04.

ACMC now challenges the allocation ruling, as modified, on two grounds. First, ACMC contends that the case should be remanded to afford it an opportunity to persuade the District Court that proration based solely on time on the risk is unfair and that a proper allocation would consider both time on the risk and the degree of risk assumed. Second, ACMC contends that the case should be remanded to afford it an opportunity to prove that its lack of sufficient insurance prior to 1986 resulted from the unavailability of insurance beyond the amounts it purchased. ACMC reasons that, since our prior decision exempted it from the proration-tothe-insured approach for years after 1985 when asbestos exclusion clauses made coverage unavailable, it should have the opportunity to prove comparable unavailability of coverage, beyond what it purchased, for the years before 1986.

We conclude that ACMC’s current challenges come too late to justify a rehearing. In its opening brief to this Court, ACMC contended that the District Court had erred in requiring any proration to the insured. Its view, repeated in its reply brief on the cross-appeal, was that the policy terms obligated the insurers to pay the entirety of all claims. As it stated, “[T]he legally required result is that once a policy is triggered by the underlying continuous bodily injuries, it is liable (subject to its policy limits) for the entirety of ACMC’s liability.” ACMC’s Reply Brief at 13. Though faulting the District Court for presuming that ACMC’s liability could be evenly prorated across all triggered policy periods, ACMC advanced this point only as a reason for rejecting proration to the insured. Nowhere in its submissions to this Court did ACMC contend, as a fallback position, that if there was to be proration to the insured, this Court should direct the District Court to use an allocation formula that included variables other than time.

ACMC endeavors to excuse its belated challenge to the specifies of the allocation technique by pointing out that the New Jersey decision on allocation, Owens-Illinois, Inc. v. United Insurance Co., 138 N.J. 437, 650 A.2d 974 (1994), some aspects of which we cited approvingly, see Stonewall, 73 F.3d at 1203, was rendered after the filing of ACMC’s reply brief. However, the unavailability of a helpful precedent did not preclude ACMC from urging us to construe New York and Texas law to require the same approach to allocation that the New Jersey Supreme Court would be persuaded to adopt in Owens-Illinois.

Equally belated is ACMC’s attempt to obtain a remand for a hearing to prove the unavailability in the years before 1986 of insurance above the amounts that it purchased. ACMC’s submissions to this Court nowhere suggested that if it failed to obtain total rejection of the proration-to-the-insured approach, it should at least be afforded an opportunity to present evidence justifying exemption from that approach for specific periods of time. Indeed, the partial exemption we adopted, sparing ACMC from proration for years after 1985, was done on our own motion, without the benefit of any argument advanced by ACMC. Having been gratuitously awarded a substantial exemption from the proration-to-the-insured approach, which it did not seek, ACMC cannot now claim that we erred in not treating it more generously.

In addition, we note that the requested remand would entail an extensive development of a factual record. That circumstance reinforces our conclusion not to entertain the request at this late date.

Finally, we accept the suggestion of ACMC to make a slight modification in one sentence of our prior opinion. Accordingly, the third sentence of the first paragraph of Part IV.A (beginning “Though ... ”), Stonewall, 73 F.3d at 1214, is modified to read, “Stonewall and OR have joined CSIC’s ‘known loss’ defense brief.” In all other respects the petition for rehearing is denied.

      . The insured is referred to in our prior opinion as NGC, the acronym of the National Gypsum Company. It is now the Asbestos Claims Management Corporation, or ACMC.


author: MORAN, Senior District Judge:

text:
    Jackson LEEDS, Plaintiff-Appellant, v. Jonathan S. MELTZ, Anthony Mansfield, Susan Ferraro, Merrick T. Rossein, Unknown John and Jane Does, Defendants-Appellees.
    No. 1328, Docket 95-9041.
    United States Court of Appeals, Second Circuit.
    Argued April 12, 1996.
    Decided May 21, 1996.

      Jackson Leeds, Pro se.
    Jonathan S. Meltz, Susan Ferraro and Anthony Mansfield, Pro se.
    Before: KEARSE and ALTIMARI, Circuit Judges, and MORAN, Senior District Judge.

        . Honorable James B. Moran, of the United States District Court for the Northern District of Illinois, sitting by designation.

   MORAN, Senior District Judge:

BACKGROUND

Plaintiff-appellant Jackson Leeds (Leeds) filed this lawsuit pursuant to 42 U.S.C.A. § 1983 (§ 1983) against the acting dean (Merrick Rossein) of the City University of New York (CUNY) Law School, and the three co-editors-in-chief (Jonathan Meltz, Anthony Mansfield, and Susan Ferraro) of CUNY Law School’s monthly paper, “The Brief’. Leeds alleges that the student editors violated his First and Fourteenth Amendment rights to free expression by failing to publish his paid advertisement. The district court granted defendants’ Rule 12(b)(6) motion to dismiss because plaintiffs “wholly conclusory allegations failfed] to support any plausible inference of state action.” Leeds v. Meltz, 898 F.Supp. 146, 151 (E.D.N.Y.1995). We affirm.

STANDARD OF REVIEW

We review the district court’s dismissal of a complaint pursuant to Rule 12(b)(6) de novo. See, e.g., Grimes v. Ohio Edison Co., 992 F.2d 455, 456 (2d Cir.) (citations omitted), cert. denied, — U.S. -, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993). We take all well-plead factual allegations as true, and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiffs. See, e.g., Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, — U.S. -, 115 S.Ct. 117, 130 L.Ed.2d 63 (1994)). While the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice. See, e.g., Albert v. Carovano, 851 F.2d 561, 572-573 (2d Cir.1988) (en banc) (§ 1981 and intentional discrimination); Martin v. N.Y. State Dept. of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978) (per curiam). A § 1983 suit may be dismissed if the defendants’ conduct did not occur under the color of state law. See, e.g., 42 U.S.C.A. § 1983; Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982).

DISCUSSION

The relevant facts are set out in the district court opinion, Leeds, supra, 898 F.Supp. 146, so we repeat only those necessary to our disposition. The Brief is the monthly journal of the CUNY Law School. In early 1995 Leeds submitted the following paid advertisement for publication:

INFORMATION WANTED
I. ANY material that could DISCREDIT: Haywood Burns, Victoria Ortiz, Jennifer Elrod, Rhonda Copelon, and Merrick Rossein for use in federal civil rights action. CONTACT JACKSON LEEDS; ...
II. Has CUNY Criminal Defense Clinic/Seminar DISCRIMINATED * ' against you?

ADD TO THE RECORD!

(Leeds Mem. at 1 (emphasis in original)). See also Leeds, 898 F.Supp. at 147. The student editors rejected appellant’s classified advertisement on February 10, 1995, for fear that its publication would subject them to a defamation lawsuit (Complaint, ¶ 30). The next business day Leeds filed suit pursuant to § 1983, claiming that the refusal to print his advertisement violated his First and Fourteenth Amendment rights to free expression. He sought declaratory and compensatory relief and punitive damages (Complaint, p. 9, ¶¶ 1-3).

The district court concluded that the complaint did not provide a plausible basis for inferring that the student editors were state actors in rejecting the advertisement, and we agree.

The complaint assumes that the rejection of the advertisement was state action. Therefore, plaintiff claims, that rejection violated his constitutional rights. The thrust of his allegations and exhibits is not, however, that CUNY controlled the newspaper but that it failed to exercise control. Plaintiff alleges that Rossein violated plaintiffs constitutional rights by failing to exercise sufficient control over the newspaper so as to assure that plaintiffs rights were not violated. While the complaint alleges that the newspaper is supported in part from mandatory student activity fees and froth food services funds allocated by a student association, the complaint reveals that that support was only $900 in 1994. Plaintiff further claims that Rossein had a,duty to allow free speech in the student publication and that he was in breach of that duty by failing to establish policies and procedures to protect First Amendment rights and by failing to appoint and train a faculty adviser.

In addition, plaintiffs own exhibits to the complaint include a legal memorandum to the CUNY Council of Presidents dated January 11, 1995, expressly disclaiming any right of the institution to control student publications, such as those financed through student activity fees. Another exhibit is an excerpt from the Manual of General Policy of the CUNY Board of Trustees, in which student publications “are asked” to follow certain advertisement standards, none of which is germane here. The closest plaintiff comes to alleging state action is an allegation, upon information and belief, that various CUNY employees prevented the publication of the advertisement.

We begin our analysis of this case with the observation that the press and the government have had a “history of disassociation.” Associates & Aldrich Co. v. Times Mirror Co., 440 F.2d 133, 136 (9th Cir.1971) (citation omitted). Cf. Potter Stewart, Or Of The Press, 26 Hastings L.J., 631, 634 (1974) (“The primary purpose of the constitutional guarantee of a free press was ... to create a fourth institution outside the Government as an additional cheek on the three official branches” (emphasis added)). This does not imply that all newspaper decisions are shielded from constitutional scrutiny. Rather, it indicates that when a paper’s editorial decision is being challenged the burden of proving state action or state coercion will be a stringent one.

It is axiomatic that the First and Fourteenth Amendments, and § 1983, apply only to state actors. At the same time, though, a private individual may be considered a state actor for purposes of a constitutional challenge if his/her conduct is “fairly attributable to the state.” Rendell-Baker, 457 U.S. at 838, 102 S.Ct. at 2769 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982)). Extensive regulation and public funding, either alone or taken together, will not transform a private actor into a state actor; instead, the state must have exerted its coercive power over, or provided significant encouragement to, the defendant before the latter will be deemed a state actor. See Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982) (citations omitted). Two other circuit courts of appeal have applied these rules to nearly identical facts. In Sinn v. The Daily Nebraskan, 829 F.2d 662 (8th Cir.1987), the college student newspaper at the University of Nebraska at Lincoln refused to publish a “roommate wanted” advertisement that described the advertiser’s sexual orientation. The plaintiff filed suit alleging a violation of her First Amendment right to free expression. The district court found that the paper was an “instrumentality of the state” but that the function of editorial decisionmaking was exempt from a constitutional challenge. See id. at 664. The Eighth Circuit affirmed, rejecting plaintiffs arguments that the committee which set the paper’s policies “derive[d] its existence, legal status, power, and authority from the Regents,” and that the paper was funded by the state. Id. at 664.

In Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073 (5th Cir.1976), cert. denied, 430 U.S. 982, 97 S.Ct. 1678, 52 L.Ed.2d 377 (1977), the Fifth Circuit held that a student newspaper at the Mississippi State University (MSU) need not publish a paid advertisement. The court minimized the fact that the paper was funded in part from a non-waivable fee charged to the students by MSU and instead relied on the fact that the students selected the paper’s editor. The court also found relevant MSU’s inability to forbid the paper from publishing the advertisement.

We do not mean to suggest that a student publication cannot be a state newspaper. As the dissent in Mississippi Gay Alliance v. Goudelock, supra, 536 F.2d at 1080-86, points out such an assertion would be far too sweeping. In Lee v. Board of Regents of State Colleges, 441 F.2d 1257 (7th Cir.1971), for example, the court found that plaintiffs free expression rights were violated when the school newspaper refused to publish his paid advertisement, but there the defendants conceded that the paper was a “state facility,” id. at 1258. But here the plaintiffs allegations and exhibits establish that CUNY did not, and recognized that it could not, control the editorial decisions of student editors. We do not believe that the bare conclusion upon information and belief that various CUNY employees somehow “prevented” publication rescues this complaint in light of those allegations and exhibits. The decision to reject the advertisement cannot be “fairly attributable” to the state.

We have reviewed the other arguments relied upon by plaintiff and find them without merit.

      . His advertisement was rejected at 7:10 p.m. on Friday, February 10, 1995; his complaint was docketed at 1:07 p.m. on Monday, February 13, 1995.


author: PER CURIAM.

text:
    Howard LASKER and Julianne Ramos, Plaintiffs-Appellants, v. NEW YORK STATE ELECTRIC & GAS CORPORATION and James A. Carrigg, Defendants-Appellees.
    No. 1234, Docket 95-7953.
    United States Court of Appeals, Second Circuit.
    Argued March 29, 1996.
    Decided May 22, 1996.

      Gary S. Graifinan, Chestnut Ridge, NY (Kantrowitz & Goldhamer, P.C., Chestnut Ridge, NY, Howard T. Longman, Stull, Stull & Brody, New York City, Steven Pasternak, Pasternak, Feldman & Plutnick, Livingston, NJ, on the brief), for Plaintiffs-Appellants.
    Stephen A. Radin, New York City (Dennis J. Block, Paul J. Collins, Weil, Gotshal & Manges LLP, New York City, John D. Draghi, Huber Lawrence & Abell, New York City, of counsel), for Defendants-Appellees.
    Before: OAKES and PARKER, Circuit Judges, and KNAPP, District Judge.

       Honorable Whitman Knapp, United States Senior District Judge for the Southern District of New York, sitting by designation.

   PER CURIAM.

Plaintiffs Howard Lasker and Julianne Ramos appeal from a Memorandum and Order of the United States District Court for the Eastern District of New York (Allyne R. Ross, Judge) dismissing their Amended Complaint against the New York State Electric & Gas Corporation (hereinafter “NY-SEG”) and James A. Carrigg, its Chairman, President and Chief Executive Officer. Filed on behalf of all those who purchased NYSEG common stock between May 15 and August 10, 1994 pursuant to the Company’s Dividend Reinvestment Plan Prospectus, the complaint alleged violations of: (1) Sections 11 and 12(2) of the Securities Act of 1933 (15 U.S.C. §§ 77k & 77Z(2)(1994)), which create a cause of action for material misrepresentations of fact made in connection with the sale of a security; (2) Section 10(b) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder (15 U.S.C. § 78j(b) (1994) & 17 C.F.R. 240.10b-5 (1994)), which make it unlawful to use or employ a “manipulative or deceptive device or contrivance” in connection with the purchase or sale of any security; and (3) Section 20 of the Securities Exchange Act of 1934 (15 U.S.C. § 78t (1994)), which establishes control person liability for a primary violation of the securities laws. For the following reasons, we affirm the judgment of the district court dismissing plaintiffs’ complaint in its entirety.

I.

BACKGROUND

The New York State Public Service Commission (hereinafter “PSC”) is the entity charged with regulating public utilities in New York State. On April 28,1992, the PSC issued an order authorizing NYSEG to invest up to 5% of its consolidated capitalization in certain unregulated businesses. NYSEG’s initial diversified investment came in May 1993. At that time, NGE Enterprises, Inc., a wholly-owned subsidiary of NYSEG, formed a computer software company, EnerSoft, to produce and market software applications for natural gas utilities.

Previously, on February 16, 1993, NYSEG had issued a Prospectus offering holders of NYSEG common stock the opportunity to reinvest cash dividends automatically in additional shares of the Company common stock — a “Dividend Reinvestment Plan.” The Prospectus incorporated by reference several documents previously filed with the SEC and further provided that “[a]ll documents filed by the Company pursuant to Sections 13 or 14 of the 1934 Act after the date of this Prospectus and prior to the termination of the offering of the securities offered hereby shall be deemed to be incorporated by reference in this Prospectus.”

On March 15, 1994, NYSEG filed its form 10-K for the fiscal year ending December 31, 1993, pursuant to § 13 of the ’34 Act. The 10-K contained the following language:

Diversification will play an important roje in the Company’s future. While the strength of the Company’s core electric and natural gas businesses remains its focus, and while the Company will not compromise its financial integrity, it is actively evaluating a number of corporate development opportunities for investment to help augment future earnings and dividend growth. In April 1992, the PSC issued an order allowing the Company to invest up to 5% of its consolidated capitalization ... in one or more subsidiaries that may engage or invest in energy-related or environmental services businesses and provide related services. In May 1993, NGE Enterprises, Inc. (“NGE”), a wholly owned subsidiary of the Company, formed a computer software company, Enersoft Corporation ... to produce and market software applications for natural gas utilities____ This represents NGE’s initial diversified investment.

The Company also issued its 1993 Annual Report. That report contained the identical language quoted above as well as other statements relating to the investment plan offered in the Prospectus, diversification activities, and projected earnings. With respect to the Prospectus, the Annual Report stated:

The PSC adopted a new, innovative approach in December 1993 when it issued an order to the Company that provides for advanced approval for financings during the Company’s three-year rate settlement. That order includes ... issuance of common stock through the Dividend and Stock Purchase Reinvestment Plan____ With this order, the Company has the flexibility to achieve its financial goals of further reducing financing costs and improving its financial health as market conditions allow.

With respect to diversification, the Annual Report stated:

NGE Enterprises Inc ____ has formed Enersoft Corporation, a computer software company that produces and markets software applications for natural gas utilities, marketers, and pipelines____ In October EnerSoft began a strategic alliance with the New York Mercantile exchange to develop an information super highway that will provide the natural gas industry with a single system for monitoring and trading natural gas and pipeline capacity in the North American market. These diversification activities demonstrate our commitment to create earnings opportunities out of the challenges to utility deregulation.

With respect to future earnings, the Annual Report stated:

We must significantly improve earnings if we are to continue even modest annual dividend increases____
It’s a wide open game now in the natural gas industry. We are convinced our business strategies will lead to continued prosperity. With the December hook-up of a large pharmaceutical company in northern New York state we added 350,000 dekatherms of sales and surpassed our 1993 sales goal. Our 1994 sales goal is the most aggressive ever____

In August 1994, the Company filed its Form 10-Q with the SEC for the quarterly period ending June 30,1994. With regard to diversification, the 10-Q reported:

Progress at Enersoft has been slower than anticipated as it is taking longer than expected to bring the software products and services to market. As a result, NGE has invested a greater amount in EnerSoft than originally projected and, like most start-up companies, EnerSoft has been incurring operating losses. It is anticipated that EnerSoft will continue to incur operating losses in the near term.

Also in August, NYSEG issued a press release conceding losses resulting in part from “start-up diversification efforts [which] will prohibit us from earning our allowed return.” The dividend paid to shareholders was reduced by 30% as compared to past years. The stock price fell $4% to $20%.

Shortly thereafter, plaintiffs filed this lawsuit. Alleging violations of the Securities Act of 1933 and the Securities Exchange Act of 1934, they claimed that defendants had misled shareholders by making unduly optimistic statements in NYSEG’s 1993 Annual Report and March 1994 Form 10-K about the likely financial effect of diversification. On August 21,1995, the district court granted the defendants’ motion to dismiss the claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief could be granted. Lasker v. New York Elec. & Gas Corp., No. 94 Civ. 3781 (E.D.N.Y. Aug. 21, 1995). This appeal followed.

II.

DISCUSSION

Each of the securities laws invoked by plaintiffs requires that they identify a materially misleading statement made by the defendants. I. Meyer Pincus & Assoc. v. Oppenheimer & Co., 936 F.2d 759, 761 (2d Cir.1991). Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), prohibits any person from using or employing a “manipulative or deceptive device or contrivance” in connection with the sale of a security. Rule 10b-5, 17 C.F.R. § 240.10b-5, issued under that statute, prohibits the making of “any untrue statement of a material fact or [omission of] a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, creates a cause of action when any part of a registration statement “contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading.” Finally, Section 12(2) of the Act imposes liability on any person who offers or sells a security by means of a prospectus or oral communication including a materially misleading statement or omission. 15 U.S.C. § 771(2).

Plaintiffs maintain that the portions of NYSEG’s Annual Report and Form 10-K excerpted above contain material, false, and misleading statements designed to lull investors into believing that diversification would only enhance future earnings and ensure increases in dividend payments. They claim that these statements were knowingly false and misleading, as NYSEG was aware that other utilities that had attempted to diversify had suffered a significant decrease in earnings. Thus, the argument goes, the company should have revealed to investors that the prospects of diversification were, at best, speculative.

In a thorough and well-reasoned opinion, the district court dismissed plaintiffs’ complaint in its entirety. Lasker v. New York State Electric & Gas Corp., No. 94 Civ. 3781 (E.D.N.Y. Aug. 21, 1995). We adopt the holding and reasoning of the district court insofar as it found that the statements invoked by plaintiffs were neither misleading nor material, and therefore could not form the basis for a securities fraud claim.

The court began by holding that the statements in NYSEG’s annual report and 10-K form regarding future earnings, sales goals, and NYSEG’s desire to achieve continued prosperity were “just the sort of predictive statements of opinion and belief that courts have found immaterial.” Id. at 12 (“Statements that a company is committed to increasing earnings, convinced of its business strategy, and has set its most aggressive goals ever are not considered seriously by the marketplace and investors in assessing a potential investment.”). It went on to reject plaintiffs’ reliance on statements in the 10-K Form and prospectus, which plaintiffs claimed had misled them in believing that diversification would augment future earnings and would not affect the company’s financial integrity.

A reasonable investor reading the language in the 10-K could only recognize that NYSEG was indeed seeking to enhance its growth by pursuing other development opportunities such as those available through NGE. The Company could not guarantee and did not guarantee, as plaintiffs contend, that its investment choices would yield increased future earnings. Contrary to plaintiffs’ assertion, ... the [C]ompany stated that it would not compromise its financial integrity, not that diversification would not affect the Company’s financial integrity. The only reasonable interpretation of the 10-K language was that the Company would attempt to pursue diversification projects likely to succeed and would not over-extend its investments into diversification in a manner that would jeopardize the long-term financial stability of the Company. In other words, this statement merely indicates the Company’s intention to avoid financial risks that could threaten the financial stability of the Company; it is not a guarantee that diversification will never adversely impact growth and earnings.

Id. at 15.

In addition, the district court rejected plaintiffs’ claim that NYSEG was under an obligation to reveal to its shareholders the financial troubles of other utilities that had attempted to diversify:

Plaintiffs do not suggest that the other utility companies attempted similar projects — such as software development— such that NYSEG might be deemed reckless in ignoring such information and in breach of an obligation to disclose it to potential investors. Plaintiffs assert nothing more than that other companies (Brooklyn Gas, for one) attempted to diversify, unsuccessfully, in some unspecified way.

Id. at 16.

We agree with the district court’s conclusion: Plaintiffs have failed to point to any material misstatement on the part of NYSEG. By telling its investors that it would not “compromise its financial integrity,” NYSEG was not representing that its actions would in no way impact the company’s finances. Nor did it certify that the company would not suffer losses when it touted its “commitment to create earnings opportunities.” Likewise, by proffering its conviction that these “business strategies [would] lead to continued prosperity,” NY-SEG was in no way insuring that dividend rates would remain constant, or that the stock price would not decline. These statements consist of precisely the type of “puffery” that this and other circuits have consistently held to be inaetionable. See, e.g., San Leandro Emergency Medical Group Profit Sharing Plan v. Philip Morris Cos., Inc., 75 F.3d 801, 811 (2d Cir.1996) (“Such puffery cannot have misled a reasonable investor....”); Raab v. General Physics Corp., 4 F.3d 286, 289-90 (4th Cir.1993) (“ ‘Soft,’ ‘puffing’ statements ... generally lack materiality....”).

A reasonable investor would not believe that, by merely making the broad, general statements cited in this complaint, NYSEG had insured against the risks inherent in diversification. Plaintiffs have not come close to alleging an actionable case of stock fraud.

The judgment of the district court is affirmed.

      . This determination provides sufficient grounds to dismiss plaintiffs' claims. As a result, we need not reach any of defendants' additional arguments, or the district court's additional grounds for dismissal.


author: JON O. NEWMAN, Chief Judge:

text:
    UNITED STATES of America, Appellee, v. Juan VASQUEZ, Defendant-Appellant.
    Nos. 1601, 1050, Dockets 94-1433(L), 94-1469.
    United States Court of Appeals, Second Circuit.
    Submitted Feb. 20, 1996.
    Decided May 22, 1996.

      Robert Koppelman, New York City, for defendant-appellant.
    Thomas M. Finnegan and Alexandra Re-bay, Asst. U.S. Attys., New York City, submitted a letter brief for appellee.
    Before: NEWMAN, Chief Judge, McLAUGHLIN, and LAY, Circuit Judges.

       The Honorable Donald P. Lay of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

   JON O. NEWMAN, Chief Judge:

This appeal from a judgment that includes a conviction for a firearm offense in violation of 18 U.S.C. § 924(e) is before the Court on remand from the Supreme Court “for further consideration in light of Bailey v. United States,” — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Bailey narrowed the definition of “use” of a firearm for purposes of section 924(c) from the definition previously prevailing in this Circuit, see, e.g., United States v. Santos, 64 F.3d 41, 45 (2d Cir.1995), and applied in this case by both the District Court in the jury instructions and by this Court in initially affirming the conviction.

In response to our invitation to the parties to express their views as to the appropriate disposition, the Government has acknowledged that Bailey has rendered the jury charge on the section 924(c) count erroneous. Furthermore, the Government has conceded that, on the facts of this case, the erroneous jury instruction requires that the section 924(c) conviction be vacated. The Government represents that it will not retry Vasquez on the section 924(c) charge, but urges that the case be remanded for resentencing on the three remaining counts, which involve narcotics offenses.

1. Vacating the section 92U(c) count. Preliminarily, we observe that the Government’s concession that the section 924(e) conviction should be vacated does not automatically govern an appellate court’s disposition of an appeal. See Gibson v. United States, 329 U.S. 338, 344 & n. 9, 67 S.Ct. 301, 304 & n. 9, 91 L.Ed. 331 (1946) (reversal, after independent consideration, following Solicitor General’s confession of error); Young v. United States, 315 U.S. 257, 258-59, 62 S.Ct. 510, 511-12, 86 L.Ed. 832 (1942) (same); see also DeMarco v. United States, 415 U.S. 449, 450, 94 S.Ct. 1185, 1186, 39 L.Ed.2d 501 (1974) (Rehnquist, J., dissenting) (“It is well established that this Court does not, or at least should not, respond in Pavlovian fashion to confessions of error by the Solicitor General.”); Petite v. United States, 361 U.S. 529, 532, 80 S.Ct. 450, 452, 4 L.Ed.2d 490 (1960) (Brennan, J., dissenting) (“Even where the Government confesses error, this Court examines the case on the merits....”). Cf. Alvarado v. United States, 497 U.S. 543, 544-45, 110 S.Ct. 2995, 2996-97, 111 L.Ed.2d 439 (1990) (remanding for reconsideration in light of Solicitor General’s position, without independent assessment); Chappell v. United States, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) (same).

In the aftermath of Bailey, the status of pre-Bailey convictions for violations of section 924(c) is somewhat unclear, although the ground-rules are emerging. We have ruled that where a section 924(c) conviction is challenged for insufficiency of the evidence, the sufficiency of the evidence to support conviction on the “carrying” prong of the statute may be relied upon to sustain the conviction, notwithstanding the insufficiency of the evidence to support a conviction on the “use” prong, as narrowed by Bailey. See United States v. Giraldo, 80 F.3d 667, 675-76 (2d Cir.1996). Giraldo applied the doctrine of Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), which held that where evidence is sufficient to support one theory of committing an offense but insufficient to support another theory and both theories were submitted to the jury, a general verdict will be sustained on the assumption that the jury rested its verdict on the valid theory. Griffin, 502 U.S. at 56-58, 112 S.Ct. at 472-74. Griffin, however, distinguished its approach from the situation where one of two theories submitted to a jury is legally deficient (evidently not regarding insufficiency of the evidence as a “legal” deficiency in this context). Id. at 58-59, 112 S.Ct. at 473-74. This approach was implicitly approved by Bailey itself, which remanded for consideration of sufficiency of the evidence as to “carrying” after ruling that the evidence was insufficient as to “use.” Bailey, — U.S. at -, 116 S.Ct. at 509.

The pending case presents a different issue — whether a jury instruction, erroneous under Bailey, requires reversal. We have recently held a Bailey error in an instruction to be harmless where it could be said, based on consideration of the entire jury charge and the evidence, that the jury’s finding of a section 924(c) violation was the “functional equivalent,” Sullivan v. Louisiana, 508 U.S. 275, 279-81, 113 S.Ct. 2078, 2082, 124 L.Ed.2d 182 (1993), of a finding that the firearm had been unlawfully carried. United States v. Pimentel, 83 F.3d 55 (2d Cir.1996). That conclusion was reached in Pimentel because the firearm was only in one location, and that location was immediately accessible to a co-defendant for whose offense the appellant was liable under a Pinkerton charge.

Unlike Pimentel, the evidence in the pending ease, if accepted by the jury, reveals that the gun could have been found to have been located at either (or both) of two locations. One location was Vasquez’s apartment. The other was on his person when he went to a meeting with his narcotics associates. Under the instructions, the jury could have improperly found the first circumstance to be “use” and properly found the second circumstance to be “carrying.” Since we are unable to determine whether the verdict rested on a legally sufficient theory and the verdict is not the functional equivalent of a necessary finding of “carrying,” we agree with the Government that the firearm conviction must be vacated.

2. Remanding for resentencing. We also agree with the Government that, in a ease such as this, a remand for consideration of resentencing on the remaining counts is appropriate. Though we have not countenanced a revision of a sentence imposed on a count unrelated to counts that were vacated, see United States v. Pisani, 787 F.2d 71, 75-76 (2d Cir.1986), we have recognized that Pisani is limited to the context of unrelated counts, see United States v. Bohn, 959 F.2d 389, 395 (2d Cir.1992). Pursuant to this distinction, we have frequently upheld increased sentences on remaining counts after conviction of a related section 924(e) count has been vacated. See United States v. Medina, 74 F.3d 413, 417 (2d Cir.1996); United States v. Diaz, 834 F.2d 287, 290 (2d Cir.1987), cert. denied, 488 U.S. 818, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988); McClain v. United States, 676 F.2d 915, 918 (2d Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982).

Accordingly, the conviction on Count Thirteen (section 924(c) violation) is vacated, the convictions on the remaining counts are affirmed, and the case is remanded to permit the District Court to consider resentencing.


author: PARKER, Circuit Judge: VAN GRAAFEILAND, Circuit Judge,

text:
    David JEMMOTT, Jr., Plaintiff-Appellee, v. Thomas COUGHLIN, as Commissioner of the New York State Department of Correctional Services; Joseph W. Kennedy, Individually and as Superintendent of the Mt. McGregor Correctional Facility; James Murphy, Individually and as Captain at Mt. McGregor Correctional Facility; Thomas Carpenter, Individually and as Lieutenant at Mt. McGregor Correctional Facility; Felix Perry, Individually and as Sergeant at Mt. McGregor Correctional Facility; William Schnorr, Individually and as Lieutenant at Mt. McGregor Correctional Facility; Richard Windel, Individually and as Lieutenant at Mt. McGregor Correctional Facility; Richard Little, Individually and as a Correction Officer at Mt. McGregor Correctional Facility; and Clyde Sanbourne, Individually and as Sergeant at Mt. McGregor Correctional Facility, Defendants-Appellants.
    No. 540, Docket 95-7235.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 1, 1995.
    Decided May 23, 1996.

      Daniel Smirlock, Assistant Attorney General, Albany, NY (Dennis C. Vacco, Attorney General of the State of New York, Peter H. Schiff, Deputy Solicitor General, Nancy A. Spiegel, Assistant Attorney General, Albany, NY, of counsel), for Defendants-Appellants.
    Lanny E. Walter, Albany, NY (Walter, Thayer, & Mishler, P.C., Albany, NY, of counsel), for Plaintiff-Appellee.
    Before: VAN GRAAFEILAND, JACOBS and PARKER, Circuit Judges.
   PARKER, Circuit Judge:

Defendants-appellants challenge a decision of the United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge, denying their motion for summary judgment. Plaintiff-appellee alleges that defendants subjected him to severe harassment on the job because of their animosity towards him as an African-American Correction Officer, in violation of 42 U.S.C. § 2000e-2(a)(l) (“Title VII”), and 42 U.S.C. §§ 1981 and 1983. The individual defendants ask this court to reverse the district court’s denial of qualified immunity on the § 1983 claim. Because we find that, if proven, defendants’ alleged conduct violated Jemmott’s clearly established rights, and that it was not objectively reasonable for the defendants to believe otherwise, we affirm the order of the district court denying their motion for summary judgment.

I. BACKGROUND

Plaintiff David Jemmott is a Correction Officer at Mt. McGregor Correctional Facility in Saratoga County, New York. Mt. McGregor is a medium/minimum security prison that employs approximately 280 security officers. Of these 280 officers, two, including Jemmott, are African-American.

Jemmott commenced the present action in the United States District Court for the Northern District of New York on May 27, 1993. His complaint, as later amended, alleged that defendants had discriminated against him on the basis of his race in violation of 42 U.S.C. § 2000e-2(a)(l) (“Title VII”), 42 U.S.C. § 1981, and 42 U.S.C. § 1983. The complaint named as defendants nine employees of the New York State Department of Correctional Services (“DOCS”): Thomas Coughlin, DOCS Commissioner; Joseph W. Kennedy, Superintendent of Mt. McGregor; James Murphy, Captain at Mt. McGregor; Thomas Carpenter, William Schnorr, and Richard Windel, Lieutenants at Mt. McGregor; Felix Perry and Clyde Sanbourne, Sergeants at Mt. McGregor; and Richard Little, Correction Officer at Mt. McGregor. All of the defendants are white, and all but Coughlin were sued in their individual as well as their official capacities. Superintendent Kennedy and Captain Murphy have supervisory authority over Jemmott, and over the remaining defendants.

A. Plaintiff’s Allegations

In support of his claim of racial discrimination, Jemmott’s complaint describes incidents of harassment dating as far back as 1983. Incidents occurring prior to 1991, included in the complaint under the heading “Background Information,” were not considered by the district court in denying the defendants’ request for qualified immunity. For the purpose of this appeal, we also confine our analysis to the harassing conduct alleged to have occurred in 1991. The eight incidents attributed to the defendants are described below.

In January 1991, Sergeant Perry accused Jemmott of failing to repossess civilian clothing that had been loaned to two prisoners for their work release. Prison officials subsequently discovered that Jemmott could not have been responsible for this security breach because he had not been working on the day it occurred. Jemmott alleges that Perry levelled this false accusation purposefully and knowingly in order to get Jemmott fired because Jemmott is an African-American who “will not ignore the racial bigotry that pervades Mt. McGregor.” Captain Schnorr allegedly assisted Perry in making this false claim. Jemmott reported his suspicions to Superintendent Kennedy, who, to the best of Jemmott’s knowledge, took no action.

During that same month, Sergeant Perry “arbitrarily” refused to give Jemmott keys to a storage area that he needed to do his job. Perry then referred to Jemmott as a “nigger.” Jemmott reported this behavior to Superintendent Kennedy, who did not reprimand Perry. When Jemmott complained to Superintendent Kennedy, he referred the complaint to the Affirmative Action Office, but took no further action.

In March of 1991, Jemmott was again accused of aEowing an inmate to keep eivihan clothing in his ceE, this time by Lieutenant Carpenter. The clothing, which the inmate had worn to court on December 28, was discovered in his ceE on March 27. Jemmott admits that he worked on December 28, but claims that he took custody of the eivihan clothes and returned them to the State shop as he was required to do. He aheges that Lieutenant Carpenter, at the direction of Captain Murphy and with the cooperation of Superintendent Kennedy and Lieutenant Schnorr, planted the clothing in the prisoner’s ceE in order to cause Jemmott to be fired or to resign. In support of this claim, Jemmott points out that the prisoner’s ceE had been searched twice between December 28 and March 27. No eivihan clothing had been found. In addition, the clothing was not held as contraband as Department regulations require, but was returned to storage and mixed with the rest of the eivihan clothing wardrobe.

In May of that same year, Jemmott requested and was granted a shift change. With his change in shifts came a change in his regular days off. Although he arranged the shift change, Lieutenant Windel did not inform Jemmott of his new days off. Jemmott asked Correction Officer Little, the “responsible person,” when he was scheduled to be off. Little told him May 27 and 28, and Jemmott did not appear for work on these days. He subsequently learned that his actual days off were May 27, June 1 and June 2. Jemmott was accused of being absent without authorization on May 28, and was denied one day’s pay. He claims that Windel and Little conspired to cause him lost wages and aggravation because of their bias toward him as an African-American Correction Officer.

On June 11, Sergeant Perry was in charge of correction officer assignments. According to prison procedure, he was to give the available correction officers a choice of assignment based on seniority. Even though Jemmott had the most seniority among the available officers, Perry assigned him to an undesirable post in the infirmary. A less senior officer was assigned to the job Jemmott preferred. When Jemmott complained, Perry replied: “I don’t give a fuck about seniority. You have the infirmary.” Jemmott brought this treatment, which he claims stemmed form Perry’s bias towards an African-American Correction Officer, to the attention of Commissioner Coughlin and Superintendent Perry. To the best of plaintiffs knowledge, no action was taken against Perry.

In July, Superintendent Kennedy revoked Jemmott’s right to carry a firearm while off-duty after a citizen complained that Jemmott had used his handgun in an improper manner. Jemmott disputes the particulars of the incident and claims that white officers are not denied this privilege under similar circumstances.

On August 27, Jemmott 'made a routine request for backup support from other guards while working in the infirmary. He registered his request with Sanbourne, who denied the assistance after consulting with Carpenter. Plaintiff believes that white officers are routinely given assistance in similar circumstances and that the incident was designed to remind him “who’s in charge.”

Finally, also on August 27, Captain Murphy ordered that Jemmott be searched in the infirmary, in front of prisoners, after having received a report that Jemmott was carrying a pager in violation of prison policy. Routine policy dictates that an officer should be taken into a private area before being searched. Nothing improper was found during the search.

B. The Proceedings Below

In October 1991, Jemmott initiated formal action against the defendants by filing a complaint with the Equal Opportunity Employment Commission (“EEOC”). After obtaining a right to sue letter on April 8, 1993, Jemmott filed suit in district court.

Based in part on a claim of qualified immunity, the defendants moved for summary judgment on October 28,1994. Holding that Jemmott’s colorable allegations of harassing conduct undertaken with discriminatory animus precluded a finding of qualified immunity, the district court denied the motion. This appeal followed.

II. DISCUSSION

A. Appellate Jurisdiction

Ordinarily, the federal courts of appeals may exercise jurisdiction only over “final decisions” of the district courts. 28 U.S.C. § 1291. Thus, interlocutory appeal is generally not available from a denial of summary judgment. Rivera v. Senkowski, 62 F.3d 80, 83 (2d Cir.1995). However, under the “collateral order” doctrine, a pre-trial order, such as a denial of summary judgment, may be appealable if the decision falls within “that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole ease is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949).

The Court applied Cohen’s reasoning to some claims of qualified immunity in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The doctrine of qualified immunity provides that officers performing discretionary functions are immune from liability for civil damages if their conduct either “did not violate clearly established rights of which a reasonable person would have known, or that it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.” Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir.1993) (internal quotations omitted); see also Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982). The doctrine is intended to strike a fair balance between (1) the “need to provide ‘a realistic avenue for vindication of constitutional guarantees,’” Martin v. D.C. Metro. Police Dep’t, 812 F.2d 1425, 1433 (D.C.Cir.1987) (quoting Harlow, 457 U.S. at 814, 102 S.Ct. at 2736), and (2) the “ ‘need to protect public officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.’” Id. at 1433 (quoting Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978)). Since qualified immunity recognizes a limited entitlement not to stand trial or face the other burdens of litigation, the Supreme Court held that interlocutory appeal may be had from a district court opinion denying qualified immunity if the decision turned on a question of law. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (“The entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a ease is erroneously permitted to go to trial.”); see also Johnson v. Jones, — U.S. -, -, 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238 (1995). However, courts of appeals do not have jurisdiction to review a denial of qualified immunity based on a question of fact, such as “ ‘evidence sufficiency’, i.e. which facts a party may, or may not, be able to prove at trial.” Johnson, — U.S. at -, 115 S.Ct. at 2156.

In this case, the defendants’ motion seeking summary judgment on the ground of qualified immunity was denied by the district court because “plaintiff has raised questions of fact as to the defendants’ actions and intent sufficient to preclude a finding” of qualified immunity at this stage. For the purpose of this appeal, however, the defendants are not contesting the sufficiency of plaintiffs proof, or the district court’s ruling that disputed issues of fact require the denial of their summary judgment motion. Instead, they argue that even if plaintiffs allegations are accepted as true, no clearly established constitutional right was violated. Thus, we proceed as if the defendants had moved to dismiss plaintiffs complaint under Rule 12(b)(6) for failure to “state a claim of violation of clearly established law.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. See also Behrens v. Pelletier, — U.S. -, -, 116 S.Ct. 834, 840, 133 L.Ed.2d 773 (1996) (“legally relevant factors” on qualified immunity issue are different at motion to dismiss stage than at summary judgment stage); Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S.Ct. 1789, 1792-93, 114 L.Ed.2d 277 (1991) (same). The district court’s rejection of the defendants’ argument is a purely legal determination that we have jurisdiction to review. See Mitchell, 472 U.S. at 528 n. 9, 105 S.Ct. at 2816 n. 9 (holding that an appeals court could review a district court’s denial of summary judgment for qualified immunity when the issue was a “purely legal one: whether the facts alleged ... support a claim of violation of clearly established law”); Behrens, — U.S. at -, 116 S.Ct. at 842.

B. The Merits of Defendants’ Qualified Immunity Claim

Defendants claim that they are entitled to qualified immunity because, even if they mistreated Jemmott in precisely the manner he alleges, it was objectively reasonable for them to think that their actions did not violate his clearly established rights. Their reasoning is as follows: Jemmott bases his § 1983 claim, grounded in the Equal Protection clause, on defendants’ supposed creation of a race-based hostile work environment at Mt. McGregor. According to Title VII law, which is utilized by courts considering § 1983 Equal Protection claims, a plaintiff must prove discrimination that was “sufficiently severe or pervasive” to alter the conditions of his employment in order to prevail on a hostile work environment claim. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). There is no respondeat superior liability under § 1983. Gierlinger v. New York State Police, 15 F.3d 32, 34 (2d Cir.1994). Therefore, before holding any one individual defendant liable, a court would have to find that he personally behaved in such a way as to create an atmosphere of severe and pervasive harassment. According to defendants, no individual’s actions, considered in isolation, were sufficiently severe or pervasive to give rise to a hostile environment claim. Thus, each defendant is entitled to qualified immunity on Jemmott’s § 1983 claim.

It is true that several circuits have held that, when § 1983 is used as a parallel remedy with Title VII in a discrimination suit, as it is here, the elements of the substantive cause of action are the same under both statutes. See Risinger v. Ohio Bureau of Workers’ Compensation, 883 F.2d 475, 483 (6th Cir.1989); Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1st Cir.1988); Nilsen v. City of Moss Point, 701 F.2d 556, 559 n. 3 (5th Cir.1983) (en banc). In addition, to state a hostile work environment claim under Title VII, it is well established that a plaintiff must point to conduct “severe or pervasive” enough to result in an environment that “would reasonably be perceived, and is perceived, as hostile or abusive.” Harris v. Forklift Systems, Inc., 510 U.S. 17, -, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993). Finally, there is clearly no respondeat superior liability under § 1983. Gierlinger, 15 F.3d at 34.

Nonetheless, we reject defendants’ assertion that they are entitled to qualified immunity from Jemmott’s § 1983 claim. Each individual defendant’s alleged conduct towards Jemmott, if proven, did amount to “severe and pervasive” harassment, which therefore violated Jemmott’s clearly established rights.

The Supreme Court has held that “whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.” Harris, 510 U.S. at -, 114 S.Ct. at 371. Relevant circumstances identified by the Court include the “severity” of the conduct, “whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. (Emphasis added). As alleged by Jemmott, each defendant intentionally jeopardized his ability to perform or even keep his job (planting clothing in order to frame him, tricking him into skipping a day of work, and levelling false charges against him), or put him in danger of physical harm (refusing to send requested back-up assistance, and humiliating him in front of prisoners he is required to control). We hold that the acts of each defendant, if true as alleged, were sufficiently severe to create a hostile or abusive work environment under the factors articulated in Harris. If the alleged acts were caused by discriminatory animus towards Jemmott as a black Correction Officer, they violated clearly established law. We simply cannot accept defendants’ contention that an objectively reasonable correction officer would believe in 1991 that attempting to get a co-worker fired because of his African-American origins was not clearly against the law.

In addition, at least two defendants, Superintendent Kennedy and Captain Murphy, are not entitled to qualified immunity at this stage in the litigation as a result of their supervisory authority over the remaining appellants. Jemmott has alleged that, although he informed both supervisors of the harassment to which he was subjected, they failed to reasonably investigate or address his allegations. If such nonresponsiveness is shown to lead to an environment in which discrimination is an “accepted custom or practice” of an employer, it violates an employee’s clearly established right to work in an environment free of race-based invidious discrimination. Gierlinger, 15 F.3d at 34.

Of course, to prevail at trial on his Equal Protection claim, Jemmott must prove that defendants intentionally discriminated against him based on his race. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 245, 96 S.Ct. 2040, 2050, 48 L.Ed.2d 597 (1976). The district court found that Jemmott has articulated sufficient facts at this stage to withstand summary judgment. Given this finding, and the fact that defendants are accused of violating what they reasonably should have known is a clearly established right, we decline to grant qualified immunity to the defendants.

The decision of the district court is affirmed.

VAN GRAAFEILAND, Circuit Judge,

concurring:

I concur in the result.

      . Since Commissioner Coughlin was not sued in his individual capacity, he is not eligible for qualified immunity. Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987); Genas v. State of New York Dep’t of Correctional Servs., 75 F.3d 825, 829 n. 3 (2d Cir.1996). Therefore, we do not consider him as an appellant in this action and none of our statements about the sufficiency of Jemmott’s allegations applies to him.

      . Although it is not clear from the record, Jemmott may have stipulated that the pre-1991 incidents are time barred because they occurred outside Tide VII’s three year limitations period. We make no comment as to whether incidents occurring before 1991 are relevant to Jemmott's claims, since the 1991 incidents provide sufficient ground to affirm the district court's denial of qualified immunity.

      . Jemmott’s § 1981 claim was dismissed in light of the Supreme Court’s decisions in Patterson v. McLean Credit Union, 491 U.S. 164, 176-78, 109 S.Ct. 2363, 2372-73, 105 L.Ed.2d 132 (1989), and Rivers v. Roadway Express, Inc., - U.S. -, -, 114 S.Ct. 1510, 1519, 128 L.Ed.2d 274 (1994). Together, those cases establish that prior to the enactment date of the Civil Rights of Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, § 1981 applied to discrimination in the formation of contracts, but not in the performance of contracts. Jemmott does not appeal this decision.

      . Qualified immunity is intended to alleviate, inter alia, the "distraction of officials from their governmental duties, [the] inhibition of discretionary action, and deterrence of able people from public service.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815 (quoting Harlow, 457 U.S. at 816, 102 S.Ct. at 2737).

      . We leave to further factual development the issue of whether other defendants acted improperly in supervisory roles or not.