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, 

, 45, 50 n.8 (1st Cir. 2010) (reciting
evidence in the light most favorable to the verdict when reviewing


                               - 3 -
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.


                                 - 4 -
          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


                                 - 5 -
[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.


                                       - 6 -
          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.


                                 - 7 -
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,"


                                     - 8 -
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.


                                    - 9 -
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.


                                 - 11 -
             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



                                     - 12 -
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




                                   - 13 -
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


                                - 14 -
          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.


                                   - 15 -
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.




                                     - 16 -
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.


                                    - 17 -
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.


                                - 18 -
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., 

, 546 (1st Cir. 2019).              "Nonetheless, our

scrutiny of the jury verdict is tightly circumscribed[.]"            Sailor

Inc. F/V v. City of Rockland, 

, 351 (1st Cir. 2005)

(internal   quotation   marks   omitted)   (quoting    Foisy    v.    Royal

Maccabees Life Ins. Co., 

, 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.            

.     "[W]e do not evaluate the credibility of the

witnesses or the weight of the evidence."

Borrás, 

, 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."

(quoting 

).


                                 - 19 -
          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, 

, 178 (1st Cir. 2008)

(quoting Earle v. Benoit, 

, 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, 

,

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 

(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


                              - 20 -
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, 

, 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.




                                     - 21 -
             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, 

, 286 (1st Cir. 1983) (first alteration in original)

(internal quotation marks omitted) (quoting Hampton v. Hanrahan,

, 621 (7th Cir. 1979), rev'd in part on other grounds,

(1980)).         While there must be sufficient evidence

from which a reasonable jury can infer an agreement "without

speculation and conjecture," 

(quoting 

), a plaintiff need not present direct evidence of


                                     - 22 -
the   agreement.    See

   (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."

            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 

(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 

(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


                                 - 23 -
with a story that a jury could conclude was fabricated to justify

or cover up the original actions.             See Santiago v. Fenton, 

, 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


                                   - 24 -
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


                                     - 25 -
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," 

, 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, 

, 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."

Garner, 

, 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."

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


                                 - 28 -
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.


                                      - 29 -
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


                                     - 30 -
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 

.           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."       

.          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., 

, 60 (1st Cir. 2019) (quoting Teixeira v. Town of

Coventry,    

,    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, 

,


                                       - 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."

(quoting United States v. Garcia, 

, 748 (1st Cir. 1992)).      We review the denial of such a

motion for an abuse of discretion.

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 

, "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.


                                     - 34 -
          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, 

, 41 (1st

Cir. 2010) (quoting Wagenmann v. Adams, 

, 200 (1st

Cir. 1987)).




                                 - 35 -
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., 

, 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.,

, 256 (1st Cir. 2004) (internal quotation marks

omitted) (quoting Koster v. Trans. World Airlines, Inc., 

, 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., 

, 29 (1st Cir. 1999) (quoting

Milone v. Moceri Family, Inc., 

, 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.




                                  - 37 -