Sanchez v. Foley ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-1994
LUIS B. SÁNCHEZ,
Plaintiff, Appellee,
v.
JAMES J. FOLEY, individually and as a Massachusetts State Police
Officer; MICHAEL A. SWEET, individually and as a Massachusetts
State Police Officer; DANIEL T. PURTELL, individually and as a
Massachusetts State Police Officer,
Defendants, Appellants,
COMMONWEALTH OF MASSACHUSETTS,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Selya, and Lipez,
Circuit Judges.
Joseph P. Kittredge, with whom Lorena Galvez and Rafanelli
Kittredge, P.C. were on brief, for appellant James J. Foley.
Daniel J. Moynihan, with whom Law Office of Daniel J.
Moynihan, P.C. was on brief, for appellant Michael A. Sweet.
David J. Officer, with whom David J. Officer, P.C. was on
brief, for appellant Daniel T. Purtell.
Héctor E. Piñeiro, with whom Robert A. Scott, Law Office of
Héctor Piñeiro, and Lizabel M. Negrón-Vargas were on brief, for
appellee.
August 18, 2020
LIPEZ, Circuit Judge. After suffering a head injury at
the Andover, Massachusetts State Police Barracks in January 2012,
appellee Luis B. Sánchez filed a civil suit against the three
troopers involved in his booking -- the appellants here -- alleging
constitutional and state law violations. A jury found all three
officers liable for conspiracy to violate Sánchez's civil rights.
It also found one of them, Trooper James J. Foley, liable on
several other claims, including the use of excessive force in
violation of the Fourth Amendment. The jury awarded Sánchez
approximately $78,000.
Appellants now argue that the district court erred in
denying their motions for judgment as a matter of law or, in the
alternative, for a new trial or remittitur. After careful review
of the record, we affirm.
I.
A. Evidence Presented at Trial
Sánchez's claims stem from his interactions with the
troopers in the early morning hours of January 31, 2012, following
his arrest by Trooper Foley for operating a vehicle while under
the influence of alcohol on Route 28 in Lawrence, Massachusetts.1
1Because appellants focus their arguments on the district
court's denial of their motions for judgment as a matter of law,
we present the facts primarily by construing the evidence in the
light most favorable to the verdict. See Cortés-Reyes v. Salas-
Quintana, 608 F.3d 41, 45, 50 n.8 (1st Cir. 2010) (reciting
evidence in the light most favorable to the verdict when reviewing
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After transporting Sánchez to the Andover Police Barracks, Foley
began the booking process. Because Sánchez speaks limited English
and Foley does not speak Spanish, Foley called a translator to
assist via speakerphone in advising Sánchez of his Miranda rights.
The ensuing conversation among Foley, Sánchez, and the
interpreter, as well as other conversations that occurred in the
barracks before and after Sánchez was injured, were recorded by
the interpreter service and later transcribed. The audiotape was
admitted into evidence at trial.
After Foley notified Sánchez of his right to counsel,
Sánchez invoked that right. Foley responded "[t]hat's fine" and
continued with the Miranda warnings. When Foley had finished, he
told the interpreter to ask Sánchez if he understood his rights,
and Sánchez responded that he did not. Foley then asked "[w]hat
doesn't he understand with those rights?" After Sánchez reiterated
that he "d[id]n't understand, what [Foley was] telling [him]," the
conversation was abruptly interrupted.
a district court's denial of motions for judgment as a matter of
law and a new trial, when the appellants did not raise additional
arguments in support of their motion for a new trial other than
their contention that the verdict was against the clear weight of
the evidence). Appellants do argue that the district court ignored
the weight of the evidence in denying their motions for a new
trial. To provide context and aid our analysis of those arguments,
we also note some significant points of dispute between the
parties.
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The parties presented differing evidence at trial about
the cause of that interruption. Sánchez testified that Foley,
upset that Sánchez said he did not understand his rights, grabbed
him by the neck and pushed him closer to the speakerphone connected
to the interpreter. Sánchez stated that Foley used "a strong level
of force," so much so that Sánchez "thought [Foley] was going to
break [his] head against the desk right next to the phone." In
response, Sánchez began screaming, addressing Foley as "friend" in
Spanish, and told him that he could not "grab [him] like that."
Sánchez testified that he was handcuffed during the entire episode.
Wilfredo De León, who had been arrested by Trooper Daniel
T. Purtell for operating a vehicle without a license and was
present in the booking room, also observed this initial
confrontation between Foley and Sánchez. Like Sánchez, De León
testified that Foley "grabbed [Sánchez] from the back of his neck
to pull him closer to the phone" when Sánchez stated that he did
not understand his rights. After that, Sánchez became agitated,
telling Foley that he was hurting him and not to touch him in that
way.
Foley and Trooper Michael A. Sweet offered a different
version of the confrontation to the jury. According to Foley,
Sánchez took a step back from where he was standing next to Foley
in front of the speakerphone. Out of concern for a third arrestee,
Kevin Waugh, who was sitting on a bench behind Sánchez, Foley "put
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[his] hand out" behind Sánchez in an effort "to guide him back up
towards the booking desk." But, according to Foley, Sánchez, who
was not in handcuffs at this point, did not respond well to this
contact. Foley testified that Sánchez "began to push back, flail
his arms, and get resistant." Accordingly, Foley "grabbed
[Sánchez's] arm and shoulder and collarbone area" and placed
handcuffs on him.
Trooper Sweet, who was sitting on the other side of the
booking desk and doing paperwork, echoed Foley's account. Although
Sweet observed Foley put one hand on the back of Sánchez's shoulder
and another hand on Sánchez's arm, he testified that he never saw
Foley "grab [Sánchez] by the neck."2
Throughout this initial confrontation, the recording
captured the following conversation:3
Sánchez: (Amigo) Friend . . .
Foley: Hey, hey, Come here . . .
Sánchez: You have to be respectful . . . you
have to be respectful, you cannot grab me
like that . . .
2Waugh, the arrestee sitting behind Sánchez, testified that
Sánchez's arms were in the air at some point while he stood at the
speakerphone. However, Waugh did not state whether Sánchez began
backing up toward him, nor did he provide details about Foley's
physical contact with Sánchez. He simply stated that, after
Sánchez told Foley that he did not understand his rights, Foley
told Sánchez he had to go in a cell and "grabbed him by the arm."
3This transcript includes the English translation of some
conversation originally spoken and recorded in Spanish.
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Foley: Hey.
Sánchez: What you fucking? You cannot do
that. You can't do that. Tell him . . .
of the lawyer.
Foley: Look, stop resisting.
Sánchez: No.
Foley: Okay.
Sánchez: You cannot force me.
Foley: Wait.
Sánchez: He cannot force me . . . Why fucking
problem . . . He cannot force me. He
cannot force me to do whatever you want
. . . Okay, I am as gringo as you. What
you fucking . . . Record it . . . Hey
he's mistreating/abusing me here . . .
he's mistreating me.
There is no dispute that, at some point during this
conversation, Troopers Sweet and Purtell joined Foley in
restraining Sánchez.4 Sweet, moving from the other side of the
booking desk, arrived first, taking hold of Sánchez's right side.
Purtell, who had been sitting in an adjacent room doing paperwork
for De León's arrest, came into the booking room when he heard a
commotion and took hold of Sánchez's left arm. Sánchez described
4 Because there was inconsistent evidence about whether
Sánchez was in handcuffs during Foley's explanation of his Miranda
rights, the testimony differed as to whether the three troopers
placed Sánchez in handcuffs at this point or simply took hold of
him.
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feeling severe pain when the officers took hold of his arms and
testified that he "thought they were going to break [his] arms."
With Sánchez in handcuffs, the three troopers -- Sweet
on the right, Purtell on the left, and Foley behind -- moved
Sánchez across the booking room toward a doorway leading to a
cellblock. The parties, again, presented conflicting evidence of
what happened next -- and what caused Sánchez's injury.
Sánchez testified that, when the officers took hold of
him, they "pushed [his] head all the way down," so that his hands
were up in the air and he could not see where he was going. Shortly
thereafter, he felt "a bang" and he "felt really heavy pain in
[his] head." Because he could not see where he was going, he
testified that he "didn't really know what had happened" to cause
the pain he felt. But he testified, as he had during his
deposition, that he had already crossed the booking room and was
"crossing through the door" when he first felt an impact on his
head. Sánchez testified that he then lost consciousness briefly.
When he regained consciousness, he was moaning in pain and,
although he was not sure whether he was in the cell itself or
elsewhere, he could see a pool of blood on the ground.
As the recording reveals, there is a period of
approximately twenty seconds when the troopers' voices can be heard
but Sánchez's cannot. After that, Sánchez can be heard for
approximately two minutes repeatedly saying "he killed me,"
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identifying himself as "a good man," and asking for an ambulance.5
Sánchez testified that he "was losing a lot of blood" and that, as
he kept attempting to say in English that he needed an ambulance,
the officers "were laughing" and "making fun."6
De León, who was handcuffed to a bench in the booking
room next to the entrance to the cellblock, testified that, as the
troopers moved Sánchez, he observed Sánchez's head strike the
wooden doorjamb of the entrance. Sánchez presented expert
5 During the period when Sánchez cannot be heard on the
recording and he testified that he was unconscious, Foley says
"get an ambulance." Although there is some incomprehensible
speaking on the recording after Foley asks for an ambulance, Foley
cannot be heard saying anything specifically for approximately two
minutes as Sánchez was calling out for help.
6 After Sánchez had been crying out for approximately a minute
and a half, the following exchange occurred:
Sánchez: Hey, 90, 91 please, 91 please, 91,
91 please. Oh my God, 91 please, hey 91.
Ay, 91 please, no problema with you . . .
91, 91, they 91, 91, 91.
Foley: What?
Sánchez: 91, please 91, 91 please.
Foley: 91 what?
Sánchez: 911.
Foley: 911 Yeah. It's coming.
Sánchez: 911.
Foley: They're coming.
Although there are incomprehensible words throughout the
recording, laughter can be heard only at the end as the recording
cuts off, approximately eight minutes after Sánchez entered the
cellblock.
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testimony by Dr. Alexander Chirkov that this impact could have
caused the laceration to his head. Although De León testified
that he could not see any blood or injuries to Sánchez's head from
where he was sitting, and stated that he could not tell whether
the officers intentionally struck Sánchez's head, he told the jury
that he heard the noise of the impact. On the recording, Trooper
Purtell is heard saying, "get out that door, oops." De León said
that the three troopers "pulled [Sánchez] back a little bit" and
then proceeded with him into the cellblock.
At that point, De León could no longer see Sánchez or
the troopers from his location in the booking room. But he
testified that he continued to hear an argument and then "really
loud noise." De León stated that he "could only imagine" what was
happening and "thought there were steps because it sounded like
somebody just fell down the stairs." Sánchez then began to scream,
"shouting at [De León], 'They're killing me, they're killing me.'"7
From then on, De León testified, he "could just hear noises" and
he did not "know what happened inside." According to De León, all
three troopers were inside the cellblock when De León heard the
"really loud noise" and "all the shouting."
7 Although De León testified that Sánchez yelled "they're
killing me," the recording reveals that Sánchez said "he killed
me" and "this guy killed me" repeatedly.
- 10 -
At some point after Sánchez began screaming "he killed
me," De León testified that Sánchez called out to him for help.
Because De León was handcuffed to the bench in the booking room
and also was scared that the officers might hurt him if he tried
to intervene, he told Sánchez in Spanish that he could not do
anything.8 The recording captured the following exchange:
De León: The ambulance is coming but you need
to cooperate. Please relax . . .
Sánchez: Yes, okay thank you.
De León: Don't worry, if you don't behave,
they are going to treat you badly. You
have time to talk to them.
Sánchez: I don't want to stay here with them.
De León: You have to cooperate.
Sánchez: I don't want them to kill me in
here.
De León: Yes, I understand but you have to
cooperate with them so that nothing
happens.
Sánchez: I am with you, I want to be with
you.
. . .
Sánchez: I want to be . . . I want to be with
the partner.
8 On the recording, Sánchez can be heard calling out to someone
he addresses as "witness" and, at another point, as "Latino" and
"Hispanic." However, De León did not respond to Sánchez's cries
until a trooper told him to let Sánchez know that an ambulance was
coming.
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De León: I understand but don't move, I am
over here . . . don't move, okay.
Sánchez: (Ellos me partieron la [mierda]),
they kicked the shit out of me.
De León: I understand but try to cooperate
because the ambulance is on its way.
Sánchez: They hit me in the head.
De León: I know, I know but try to relax, if
you don't behave they are not going to
treat you well.
Sánchez: Take a picture of me, take a picture
of me.
De León: I can't otherwise they will hit me
hard as well.
When an ambulance arrived, the troopers brought Sánchez
back into the booking room. De León told the jury that, at that
point, he observed that Sánchez "had blood on his face and head,"
though De León still could not see the actual injury on top of
Sánchez's head. De León testified that he did not remember seeing
any trooper go to call an ambulance or bring a first aid kit.
Later that night, Foley reported to Sergeant Eric
Bernstein, the supervisor who came to investigate Sánchez's
injury, and who testified at trial, that the three troopers had
together taken Sánchez into the cellblock and that Sánchez had
sustained his head injury in the presence of all three troopers.
At trial, however, all three troopers presented a different --
albeit, unified -- account of the evening. Each emphasized that
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Sweet and Purtell never entered the cellblock and were not present
when Sánchez sustained his head injury. As Sweet put it at trial,
he "one hundred percent did not" enter the cellblock.
According to the testimony of the troopers, the doorway
into the cellblock is narrow. Thus, when they reached that door
with Sánchez, Sweet testified that he "hit the door frame on the
right side" and he "popped off from Sánchez." Sweet testified
that he "let go" of Sánchez at that point, because no one would
have been able to get through the door if he kept his hold. Sweet
recalled that, at the point that he (not Sánchez) hit the
doorframe, Purtell said "oops," which can be heard on the
recording. Purtell similarly testified that he hit the left side
of the door, so he also let go of Sánchez at the threshold to the
cellblock. According to the troopers, only Foley kept his grip on
Sánchez and only the two of them entered into the cellblock.
Sweet and Purtell testified that they did not reassume
their positions holding onto Sánchez once he had gone through the
doorway or follow Foley into the cellblock. Instead, Purtell
testified that he simply "turned around" at that point and "started
walking back to finish [his] report." Although Sweet testified
that he initially remained in the doorway to the cellblock where
he could observe inside, he turned around once he heard Foley
moving the cell door. Purtell and Sweet both stated that they
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returned to assist Foley only when they heard Foley say "oh, he
fell" and ask for an ambulance.
Thus, Foley was the only trooper who presented testimony
about what happened inside the cellblock.9 He testified that
Sánchez was "completely uncontrollable," and when they reached the
entrance to the cell itself, Foley got stuck at the door. Foley
testified that Sánchez was "struggling" and "squirming," and Foley
lost his grip on him. At that point, Foley stated, Sánchez took
several steps forward into the cell, lost his balance, and fell
"head first into the toilet." According to Foley, the impact of
Sánchez's head on the toilet bowl rim caused the cut across the
center of his head. Dr. Jennifer Lipman, an expert witness for
the troopers, testified that this fall caused the laceration to
Sánchez's head.10
9 The defense also called the desk officer on duty at the
barracks, Trooper George Driscoll, to testify. Based on his
observation of a live-feed surveillance camera of the cellblock,
he testified that he saw Sánchez fall "towards the back wall" of
the cell as he was being placed into the cell by Foley. Because
of the angle of the camera, however, he testified that he could
not see Sánchez hit his head. He also acknowledged that he may
have been watching up to twelve cameras on a single monitor and
that there is no audio available on the surveillance feed.
10Waugh, the third arrestee in the barracks, whom the troopers
called to testify, offered testimony that was not entirely
consistent with the plaintiff's or defendants' accounts. He stated
that, as Sánchez was being moved toward the cellblock, his legs
got "wobbly," he fell, and Foley then fell on top of Sánchez.
Although Waugh denied seeing Sánchez hit his head when he fell, he
was impeached on cross examination by Sánchez's attorney with an
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On the recording, Foley can be heard saying "oh, he
fell." Although Foley acknowledged making the statement, he denied
on cross examination that he did so only to protect himself --
that is, to provide an exculpatory explanation to the other
arrestees in the booking room who might hear the loud sounds and
screams coming from the cellblock, which might also be recorded.
Approximately five seconds later on the recording, Foley can be
heard saying "[s]tep up, step up" and, after another four seconds,
"[g]et an ambulance." Approximately six seconds later, Sánchez
can be heard for the first time moaning and saying "he killed me."
Foley testified that Sánchez was conscious throughout the
approximately twenty-second period in which he cannot be heard on
the recording.
Sweet testified that, after hearing Foley say that
Sánchez fell and that an ambulance was needed, he went into the
bathroom and brought a stack of paper towels to Foley. Sweet also
said that, eventually, he asked De León if he spoke Spanish, and
he told him to let Sánchez know that an ambulance was coming.
Purtell testified that he went to the desk area and asked another
trooper to call an ambulance after he heard a bang and Foley's
request for an ambulance. Upon entering the booking room, Purtell
testified that he could see into the cellblock, where he saw
affidavit he signed in 2012, which stated that Sánchez's head hit
"the wall" next to the doorway to the cellblock.
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Sánchez sitting in front of the cell with Foley applying pressure
to Sánchez's head. Purtell, like Sweet, said that he asked De
León to tell Sánchez in Spanish that an ambulance was on the way.
Although at his deposition Purtell denied seeing blood on the floor
of the cellblock, he admitted at trial, when confronted with photos
showing a trail of blood between the cell and the cellblock, that
there was blood on the floor.
Sánchez was treated at Lawrence General Hospital for his
head laceration, which was approximately three inches long and
required eleven staples. At trial, photographs of the wound were
introduced into evidence. Sánchez testified that his scar
continues to bother him and that his "head hurt constantly" after
the incident. He also experienced "huge pain" in his back, neck,
and shoulders. As a result of these injuries, he had follow-up
treatment with his primary care doctors, attended physical
therapy, and was placed on new medications. He introduced evidence
of approximately $7,000 in medical expenses stemming from his
injury. Finally, Sánchez testified that the incident had affected
him "a lot" emotionally. When he sees the police now, he "tr[ies]
to avoid them" and "panic[s]." Although he had been an "active
and happy person" before the incident, he has "been down" since
then.
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B. Procedural History
Sánchez filed this action in January 2015 alleging eight
federal and state causes of action. He proceeded to trial in
October 2017 on five claims against all three officers:11 (1) the
use of excessive force in violation of the Fourth Amendment of the
United States Constitution, actionable pursuant to 42 U.S.C. §
1983; (2) civil conspiracy to act in violation of the Fourth
Amendment, also pursuant to section 1983; (3) assault and battery;
(4) violation of the Massachusetts Civil Rights Act ("MCRA"); and
(5) intentional infliction of emotional distress. He pursued a
sixth claim only against Foley for malicious prosecution.
During a four-day trial, as reflected in our account of
the evidence, Sánchez and the three troopers testified, and each
side also presented additional witnesses, including De León,
Waugh, experts, and the supervisor who investigated the incident.
At the close of Sánchez's case, the three troopers filed motions
for judgment as a matter of law on the claims alleging conspiracy
in violation of section 1983, intentional infliction of emotional
distress, and violation of the MCRA. See Fed. R. Civ. P. 50(a).
Sánchez opposed those motions and also filed a motion for judgment
11
Sánchez voluntarily dismissed several claims prior to
trial: a violation of the Massachusetts Tort Claims Act against
the Commonwealth of Massachusetts; a claim of negligent infliction
of emotional distress against the three troopers; and a claim for
malicious prosecution against Sweet and Purtell.
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as a matter of law. The district court denied both plaintiff's
and defendants' motions. The parties renewed their motions for
judgment as a matter of law at the close of the trial, and the
district court again denied them.
The jury found Foley liable on all six claims and the
other two troopers liable only on the civil rights conspiracy
claim. The jury awarded Sánchez $8,000 for his medical bills and
$70,000 for pain and suffering, as well as pre-judgment interest.12
Each defendant moved for judgment as a matter of law,
pursuant to Rule 50(b), or, in the alternative, for a new trial,
pursuant to Rule 59(a), on each count for which he was found
liable. Foley also moved, pursuant to Rule 59(e), for remittitur.
The district court denied all of the motions, concluding that the
trial evidence supported the verdicts. The troopers filed this
timely appeal.
II.
A. Motions for Judgment as a Matter of Law
The appellants argue that the district court erred by
denying their post-verdict motions for judgment as a matter of law
on each of the counts for which they were found liable. However,
because all three troopers were found liable on the civil rights
12The verdict form specifically asked the jury whether it
"award[ed] pre-judgment interest on the award of compensatory
damages." The court then specified the rate of pre-judgment
interest on the judgment it entered.
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conspiracy claim, and the damages can be upheld based on their
liability on that claim alone, we consider only whether the
district court erred in denying their motions for judgment as a
matter of law with respect to that claim. Given our conclusion
that there was no such error, we need not address Trooper Foley's
arguments about the other claims for which the jury found him
liable.
We review denials of post-verdict motions for judgment
as a matter of law de novo. Blomquist v. Horned Dorset Primavera,
Inc., 925 F.3d 541, 546 (1st Cir. 2019). "Nonetheless, our
scrutiny of the jury verdict is tightly circumscribed[.]" Sailor
Inc. F/V v. City of Rockland, 428 F.3d 348, 351 (1st Cir. 2005)
(internal quotation marks omitted) (quoting Foisy v. Royal
Maccabees Life Ins. Co., 356 F.3d 141, 145 (1st Cir. 2004)). We
construe the facts in the light most favorable to the jury verdict
and draw any inferences in favor of the non-movant. Blomquist,
925 F.3d at 546. "[W]e do not evaluate the credibility of the
witnesses or the weight of the evidence." Id. (quoting Lama v.
Borrás, 16 F.3d 473, 475 (1st Cir. 1994)). Ultimately, "[w]e must
sustain the district court's denial of a Rule 50(b) motion for
judgment as a matter of law unless the evidence . . . could lead
a reasonable person to only one conclusion, namely, that the moving
party was entitled to judgment." Id. (alterations in original)
(quoting Lama, 16 F.3d at 477).
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A civil rights conspiracy under section 1983 is
commonly defined [as] "a combination of two or
more persons acting in concert to commit an
unlawful act, or to commit a lawful act by
unlawful means, the principal element of which
is an agreement between the parties to inflict
a wrong against or injury upon another, and an
overt act that results in damages."
Estate of Bennett v. Wainwright, 548 F.3d 155, 178 (1st Cir. 2008)
(quoting Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988)). To
establish a civil rights conspiracy, a plaintiff must show "not
only a conspiratorial agreement but also an actual abridgment of
some federally-secured right." Nieves v. McSweeney, 241 F.3d 46,
53 (1st Cir. 2001). That is, if a jury finds that a plaintiff's
civil rights were not actually violated by any defendant, the jury
must also find that the defendants are not liable for a conspiracy
to violate those same civil rights. See Earle, 850 F.2d at 845(concluding that district court erred in directing verdict for
defendant officer on a civil rights conspiracy claim because there
was sufficient circumstantial evidence from which to infer a
conspiratorial agreement but finding that error harmless because
the jury found there had been no "illegal arrest, use of excessive
force, [or] illegal searches").
Our requirement that there be "an actual deprivation of
a right secured by the Constitution and laws" for a "conspirac[y
to] be actionable under section 1983" reflects the fact that
"[c]onspiracy is merely the mechanism by which to obtain the
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necessary state action, or to impose liability on one defendant
for the acts of the others performed in pursuance of the
conspiracy." Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st
Cir. 1980) (internal citations omitted). In other words, a
conspiracy under section 1983 permits a jury to hold co-
conspirators liable for the damages flowing from a constitutional
deprivation that all of the co-conspirators may not have personally
carried out.
Sánchez asserts that the troopers conspired to deprive
him of his right to be free from excessive force, in violation of
the Fourth Amendment, thus making the troopers together liable for
the injuries Sánchez sustained as a result of the excessive force
Foley used. In effect, Sánchez contends that a jury could infer
that the troopers engaged in a conspiracy to deprive Sánchez of
his Fourth Amendment rights by participating in the prelude to
Sánchez's injury -- thus communicating their assent to Foley's use
of excessive force -- and implicitly agreeing before Foley injured
Sánchez that they would cover it up later. According to this
theory of the conspiracy claim, Foley used excessive force because
he felt assured beforehand that Sweet and Purtell would cover for
him. As Sweet and Purtell themselves put it in their brief, Foley
"felt free to use excessive force without fear that his deeds would
be exposed" because of the implicit agreement among the officers.
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Appellants assert that the evidence was insufficient to
permit a reasonable jury to conclude that Sánchez had established
either an actual deprivation of his rights, namely the use of
excessive force, or an agreement among the troopers to carry out
that abridgment. They therefore contend that the district court
erred in denying their motions for judgment as a matter of law on
the civil rights conspiracy claim. We begin by considering the
evidence relating to the agreement among the officers.
1. Agreement
To establish the first element of a section 1983
conspiracy -- an agreement among the members of the conspiracy --
the plaintiff must prove either the existence of a "single plan[,]
the essential nature and general scope of which [was] known to
each person who is to be held responsible for its consequences,"
or "[a]t the least" that "the parties decide[d] to act
interdependently, each actor deciding to act only because he was
aware that the others would act similarly." Aubin v. Fudala, 782
F.2d 280, 286 (1st Cir. 1983) (first alteration in original)
(internal quotation marks omitted) (quoting Hampton v. Hanrahan,
600 F.2d 600, 621 (7th Cir. 1979), rev'd in part on other grounds,
446 U.S. 754 (1980)). While there must be sufficient evidence
from which a reasonable jury can infer an agreement "without
speculation and conjecture," Earle, 850 F.2d at 844 (quoting Aubin,
782 F.2d at 286), a plaintiff need not present direct evidence of
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the agreement. See id. at 845 (concluding that there was
sufficient circumstantial evidence in the record for a reasonable
jury to infer a conspiracy among three officers). "[T]he agreement
that rests at the heart of a conspiracy is seldom susceptible of
direct proof: more often than not such an agreement must be
inferred from all the circumstances." Id. at 843.
We have previously held that officers involved solely in
the cover up of another officer's assault and battery of a suspect,
without any evidence of a conspiratorial agreement prior to the
incident, cannot be held liable for the original tort through a
civil rights conspiracy. See Landrigan, 628 F.2d at 742 (rejecting
plaintiff's theory that officers who helped cover up another
officer's assault and battery of plaintiff were liable for the
original tort, because they did not participate in the tort "and
the conspiracy in which all were allegedly involved did not
commence until after plaintiff's leg was broken"); see also Aubin,
782 F.2d at 286 (concluding that officers' after-the-fact acts to
conceal a fellow officer's fatal shooting at the scene of a
suspected burglary did not sufficiently demonstrate a
conspiratorial agreement to deprive the shooting victim of his
constitutional rights). However, we have held that, for purposes
of a civil rights conspiracy, a jury may reasonably infer the
conspiratorial agreement from evidence of communication among
officers before the alleged unlawful conduct occurred, coupled
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with a story that a jury could conclude was fabricated to justify
or cover up the original actions. See Santiago v. Fenton, 891
F.2d 373, 389 (1st Cir. 1989) (reversing directed verdict in favor
of defendant officer because the jury could have reasonably
inferred that the officers conspired to arrest the plaintiff, in
violation of his Fourth Amendment rights, based on evidence of
"discussions between the officers" before the arrest and the jury's
possible inference that the officers had fabricated the reason for
the arrest).
Sweet and Purtell contend that the record does not
support a finding that they conspired with Foley before he used
excessive force such that he could "fe[el] free to use excessive
force without fear that his deeds would be exposed." They claim
that the only evidence suggestive of an agreement among the
officers is that all three testified consistently at trial that
Foley alone was present in the cellblock when Sánchez was injured,
even though Foley originally reported to the supervisor that all
three officers were present, an account that aligned with De León's
testimony. Sweet and Purtell argue that, even if the jury relied
on the discrepancy in Foley's statements and on De León's testimony
to conclude that all three officers entered the cellblock, and
that Sánchez sustained his injury there, that would be an
insufficient basis for inferring an agreement. In their view,
this evidence shows, at best, Sweet and Purtell's "presence at the
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commission of a culpable act" or involvement in efforts after the
injury to cover up what Foley had done. They argue that, without
evidence of a conversation among the officers or suspiciously
consistent or inconsistent reports of the injury-causing incident,
inferring a conspiracy is impermissibly speculative. As they put
it, "[t]he mere fact that Foley testified inconsistently with an
earlier report does not provide the basis for an inference that
[the troopers] together reached an agreement to violate Sánchez's
civil rights."
We disagree. Sweet and Purtell offer an overly myopic
view of the evidence in depicting as unduly speculative the
possibility of an agreement before Foley's use of excessive force.
A jury could reasonably infer a conspiratorial agreement to deprive
Sánchez of his Fourth Amendment rights based on Sweet and Purtell's
direct aid to Foley in subduing Sánchez (whom the jury could have
concluded was already in handcuffs) in the booking room, even as
Sánchez was yelling "you have to be respectful" and "you cannot
grab me like that"; Sánchez's head hitting the doorjamb, according
to De León, while all three troopers were moving him; the
incomprehensible conversation inside the cellblock, captured on
the recording; the officers' comments ("oops" and "oh, he fell"),
which the jury could have interpreted as efforts, in real time, to
distort the other arrestees' perception of what the officers were
doing to Sánchez; De León's testimony that the troopers all
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remained in the cellblock as Sánchez was yelling "he killed me"
and pleading that he is "a good man"; Sánchez's testimony that
they laughed at him; and, finally, evidence of the troopers'
efforts to fabricate a story that Sánchez had accidentally fallen
with only one witness present.
The jury apparently concluded that Sweet and Purtell's
actions did not themselves amount to excessive force, as evidenced
by its finding against only Foley on the separate excessive force
claim. Nevertheless, it could have reasonably inferred from these
actions preceding Sánchez's injury that Sweet and Purtell had at
least implicitly communicated their assent to Foley's actions and
their intention to conceal them, thereby leaving Foley
unrestrained in his interactions with Sánchez.
2. Deprivation of a Federally Secured Right: The Use of
Excessive Force by Foley
Law enforcement "use of excessive force or violence
. . . violates the victim's constitutional rights," Landrigan, 628
F.2d at 741-42, and thus satisfies the requirements that there be
an overt act and an actual deprivation of civil rights to establish
a civil rights conspiracy. To determine whether an officer has
used excessive force, we consider "whether the force used to effect
a particular seizure is 'reasonable' under the Fourth Amendment."
Graham v. Connor, 490 U.S. 386, 396 (1989). It is well established
that the reasonableness test "requires a careful balancing of 'the
- 26 -
nature and quality of the intrusion on the individual's Fourth
Amendment interests' against the countervailing governmental
interests at stake." Id. (quoting Tennessee v. Garner, 471 U.S.
1, 8 (1985)). In assessing reasonableness, we must pay "careful
attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade
arrest by flight." Id.Although Sánchez brought claims for excessive force
against all three troopers, the jury found that only Foley used
excessive force. The record in this case, viewed in the light
most favorable to the verdict, amply supports that finding against
Foley. De León testified that, after Foley "grabbed [Sánchez] by
his neck," all three troopers grabbed onto Sánchez and moved him
toward the cellblock. At that point, Sánchez was already in
handcuffs. While the troopers were holding onto Sánchez, De León
observed from his seat next to the entrance to the cellblock
Sánchez's head hit the doorjamb. Sánchez's expert witness Dr.
Chirkov testified that this impact could have caused the laceration
to Sánchez's head. De León then saw the three officers enter the
cellblock with Sánchez. Although De León could not see what the
officers were doing inside, he heard an argument and then a loud
noise. He next heard Sánchez repeatedly scream he "killed me" and
- 27 -
eventually ask De León for help. When Sánchez was brought out of
the cellblock, De León saw that he had blood on his face and head.
Sánchez testified that he felt a severe impact on his
head as the officers moved him toward the cellblock. Although
Sánchez could not see where he was going and, thus, did not know
what his head struck, he "felt really heavy pain in [his] head"
and shortly thereafter lost consciousness. On the recording,
Sánchez can also be heard yelling from the cellblock to De León
that "they kicked the shit out of me" and "[t]hey hit me in the
head."
Based on this testimony, viewed in the light most
favorable to the verdict, a jury could reasonably conclude that
Foley caused the wound to Sánchez's head. There are at least two
points at which the jury could have found that Sánchez was injured.
First, the jury could have found that Foley purposely struck
Sánchez's head on the doorjamb as he was entering the cellblock,
causing his injury. Additionally, the jury could have concluded
that Foley injured Sánchez inside the cellblock, based on, among
other things, De León's testimony that there was a loud bang once
the troopers and Sánchez were out of his sight, and Sánchez's
screams and cries for help captured on the recording.13 Given that
13 Although Sánchez presented evidence to show that he could
have sustained his injury when his head struck the doorjamb, he
also acknowledged to the jury that, because he could not see where
he was going and everything happened quickly, he was not sure what
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Sánchez had been searched for weapons and was handcuffed both as
he entered the cellblock and once he was inside, it was reasonable
for the jury to conclude that Foley used excessive force in
violation of Sánchez's Fourth Amendment rights.14
Foley attempts to undermine the validity of this
excessive force finding by pointing to two asserted
inconsistencies in the evidence. First, Foley asserts that De
León's testimony on how Sánchez's head struck the doorjamb was
inconsistent with the testimony of Sánchez's own expert, Dr.
Chirkov, on the position of Sánchez's head if the doorjamb caused
the injury. Specifically, Dr. Chirkov explained that Sánchez could
have sustained the horizontal laceration on the top of his head
from being shoved into a vertical portion of the doorjamb (where
De León indicated Sánchez's head hit) only if his head was turned
sideways at the point of the collision. Although Foley is correct
that neither Sánchez nor De León testified that Sánchez's head was
he banged into and what caused the "heavy pain" to his head before
he was knocked unconscious. Both theories of injury were also
reflected in Sánchez's counsel's closing argument. Although he
focused on the fact that Sánchez "was hit on the way into the
[cellblock]," he also argued to the jury that "something else
happen[ed] inside the cell room as well."
14 Because the jury could reasonably conclude that Foley used
excessive force at the entrance to the cellblock, once inside, or
on both occasions, we need not address Foley's argument that there
was insufficient evidence from which to conclude that his contact
with Sánchez near the speakerphone before Sweet and Purtell arrived
constituted excessive force.
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so turned, neither witness was asked specifically about the
position of Sánchez's head when it struck the doorjamb. Rather,
De León testified generally that Sánchez's head was "down," meaning
that his head was bent forward in front of his body. And Sánchez
was not even sure what he struck when he first felt sharp pain,
let alone precisely how his head was turned at that moment. Thus,
contrary to Foley's argument, Dr. Chirkov's testimony was not
incompatible with the other witnesses' testimony. In any event,
this asserted inconsistency concerning Sánchez's collision with
the doorjamb is immaterial in light of the evidence presented on
the events inside the cellblock. Even if the jury did not believe
that Sánchez's injury was caused by striking the doorjamb, the
jury could readily infer, as we explained above, that Foley -- who
admitted he was the lone officer holding Sánchez once inside the
cellblock -- used excessive force inside the cellblock.
Second, Foley points to the change in Sánchez's
description of what caused his injuries. He notes that Sánchez
told medical personnel the day after the incident that the police
had kicked him inside the cell, and he reiterated that report
during his deposition. At trial, however, Sánchez presented
evidence that his injury occurred when his head struck the
doorjamb. Foley contends that, in light of this inconsistency,
there was insufficient evidence from which a reasonable jury could
conclude that he used excessive force. We disagree. Foley's
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argument is, in effect, nothing more than a belated attack on
Sánchez's credibility. It was up to the jury to weigh the
credibility of Sánchez and the other witnesses, and we may not
second guess such assessments when reviewing motions for judgment
as a matter of law. See Blomquist, 925 F.3d at 546. Moreover,
there was abundant evidence besides Sánchez's testimony -- namely
the recording and De León's largely corroborating testimony --
from which the jury could have concluded that Foley used excessive
force either at the entrance to the cellblock, or once inside, or
on both occasions.
Finally, Foley makes an insufficiency argument because
of the jury's finding that he alone used excessive force, but that
all three troopers had conspired to violate Sánchez's civil rights.
Foley argues, in effect, that a civil rights conspiracy among
officers can exist only if each alleged co-conspirator is found to
have personally violated a federally secured right of the
plaintiff. Foley is incorrect. As we have explained, a civil
rights conspiracy is "the mechanism . . . to impose liability on
one defendant for the acts of the others performed in pursuance of
th[at] conspiracy." Landrigan, 628 F.2d at 742. So long as there
was an agreement among the three troopers to deprive Sánchez of
his Fourth Amendment rights before the deprivation occurred, an
overt act in furtherance of the conspiracy, and an actual
deprivation of Sánchez's Fourth Amendment rights, all three
- 31 -
troopers were liable for that deprivation through the civil rights
conspiracy claim, even if the jury concluded that they did not
each personally use excessive force. Foley's argument therefore
fails.
In sum, construing the evidence in the light most
favorable to the verdict, there was sufficient evidence for a
reasonable jury to find that the three troopers reached an
agreement to deprive Sánchez of his Fourth Amendment rights and
that Foley carried out that deprivation by using excessive force.
The district court therefore correctly denied the troopers'
motions for judgment as a matter of law on the civil rights
conspiracy claim.
B. Motions for a New Trial
A district court may grant a motion for a new trial,
pursuant to Rule 59(a), "only 'if the verdict is against the law,
against the weight of the credible evidence, or tantamount to a
miscarriage of justice.'" Thomas & Betts Corp. v. New Albertson's,
Inc., 915 F.3d 36, 60 (1st Cir. 2019) (quoting Teixeira v. Town of
Coventry, 882 F.3d 13, 16 (1st Cir. 2018)). Unlike its
consideration of a motion for judgment as a matter of law, which
requires the district court to construe the evidence in the light
most favorable to the verdict, "a district court is free to
independently weigh the evidence" when assessing whether to grant
a motion for a new trial. See Jennings v. Jones, 587 F.3d 430,
- 32 -
436 (1st Cir. 2009); see also 11 Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure § 2806 (3d
ed. 2020). Nonetheless, we have noted that, "[i]n general,
conflicting testimony or a question as to the credibility of a
witness are not sufficient grounds for granting a new trial."
Blomquist, 925 F.3d at 551 (quoting United States v. Garcia, 978
F.2d 746, 748 (1st Cir. 1992)). We review the denial of such a
motion for an abuse of discretion. Id.Appellants all assert that the district court abused its
discretion in denying their motions for a new trial because the
verdicts were against the weight of the evidence. Additionally,
Sweet and Purtell contend that the district court erred as a matter
of law in denying their motions for a new trial because it failed
to apply the proper legal standard. Rather than "independently
weigh" the evidence, as Rule 59 permits, see Jennings, 587 F.3d at
436, "the district court felt bound to draw all inferences in favor
of the jury's verdict." In other words, Sweet and Purtell argue,
the district court conflated their distinct motions for judgment
as a matter of law and for a new trial and simply denied the latter
because it had denied the former. We conclude otherwise.
In Purtell's motion for judgment as a matter of law or,
in the alternative, a new trial, he articulated the relevant
standard governing motions for new trials pursuant to Rule 59.
Then, referencing the district court's charge to the jury, Purtell
- 33 -
argued that a new trial was warranted because "the jury failed to
follow the trial court's instructions and the verdict it reached
on [the civil rights conspiracy count] was against the weight of
the evidence." Foley's motion also stated the proper standard for
evaluating motions for new trials, specifically noting that a new
trial may be granted even when judgment as a matter of law may
not.15 In his opposition to the motions, Sánchez similarly
articulated the distinct and "less stringent" standard governing
Rule 59 motions.
It is true that the district court, in a written
decision, failed to restate the standard that governs a Rule 59
motion for a new trial. Instead, it made a statement suggesting
that it had construed the evidence in the light most favorable to
the verdict when considering the troopers' motions for a new trial.
Specifically, the district court stated that "[b]ased upon the
totality of evidence presented at trial and drawing all reasonable
inferences in favor of the jury's verdict . . . there is no basis
to reverse [the civil rights conspiracy] verdict or allow a new
trial as to the conspiracy claim against the Defendants."
15Although Sweet captioned his motion as a renewed motion for
judgment as a matter of law or, in the alternative, for a new
trial, he did not cite Rule 59 or request a new trial in his motion
and therefore did not discuss the standard that governs such
motions.
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We see this statement as nothing more than careless
phrasing by the district court. The court's analysis reveals that
it separately addressed Purtell's arguments for a new trial,
underscoring that the court understood that the motions required
distinct consideration as the appellants' motions laid out in their
recitation of the differing standards. The court said, in direct
response to Purtell's argument for a new trial, that "such verdict
is not inconsistent with the jury instructions that the Court gave
the jury." The court also stated that "there was evidence to
support the jury's finding that all three defendants were liable
for civil conspiracy." These comments persuade us that the court
separately considered appellants' motions for a new trial under
the proper standard.
We therefore conclude that the district court did not
commit legal error in considering appellants' motions for a new
trial and, furthermore, did not abuse its discretion in declining
to order a new trial. This is not the "very unusual case" in which
we will reverse a district court's denial of a motion pursuant to
Rule 59, particularly in light of the credibility issues at the
heart of this case. See Raiche v. Pietroski, 623 F.3d 30, 41 (1st
Cir. 2010) (quoting Wagenmann v. Adams, 829 F.2d 196, 200 (1st
Cir. 1987)).
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C. Remittitur
We review a district court's denial of a motion for
remittitur under Rule 59(e) for abuse of discretion. Astro-Med,
Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 14 (1st Cir. 2009).
"[A] party seeking remittitur 'bears a heavy burden of showing
that an award is grossly excessive, inordinate, shocking to the
conscience of the court, or so high that it would be a denial of
justice to permit it to stand.'" Currier v. United Techs. Corp.,
393 F.3d 246, 256 (1st Cir. 2004) (internal quotation marks
omitted) (quoting Koster v. Trans. World Airlines, Inc., 181 F.2d
24, 34 (1st Cir. 1999)). We will not upset a jury's damage award
unless it "exceeds 'any rational appraisal or estimate of the
damages that could be based on the evidence before the jury.'"
Smith v. Kmart Corp., 177 F.3d 19, 29 (1st Cir. 1999) (quoting
Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988)).
Foley contends that, because Sánchez failed to establish
that Foley's actions caused his head injury, the damages awarded
are excessive. However, we have already rejected Foley's arguments
that he is not liable for that injury. Because Foley advances no
other arguments explaining why the damages awarded are "grossly
excessive," we affirm the district court's denial of his motion
for remittitur.
- 36 -
III.
For the foregoing reasons, we affirm the district
court's denial of appellants' motions for judgment as a matter of
law and a new trial as well as Foley's motion for remittitur.
So ordered.
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