Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals for the First Circuit Nos. 01-2206, 01-2574

STEVEN R. DRURY, Plaintiff, Appellant,

v.

JOHN A. BERNARD; JEFFREY LANDGREN; DANIEL V. PROSSER; JASON WETHERBEE; CITY OF GARDNER; TOWN OF HUBBARDSTON Defendants, Appellees,

KENNETH J. ARSENAULT, Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before LYNCH, Circuit Judge, FARRIS,* Senior Circuit Judge, and LIPEZ, Circuit Judge.

Irwin Kwiat for appellant. Leonard H. Kesten, with whom Deidre Brennan Regan and Brody, Hardoon, Perkins & Kesten were on brief, for appellees Landgren, Prosser, and Weatherbee.

* Of the Ninth Circuit, sitting by designation. Stephen Pfaff, with whom Merrick, Louison & Costello was on brief, for appellee Bernard.

December 31, 2002

-2- Per Curiam. Drury brought this

action

against police officers alleging wrongful arrest and excessive

force. He appeals the district court's order denying his motion

for a judgment as a matter of law and for a new trial, and the

district court's entry of judgment on the defense verdict,

following a nine-day jury trial. We affirm.

We reject Drury's argument that he proved all allegations in

his complaint as a matter of law. We review this claim de novo.

See Cigna Ins. Co. v. Saunatec, Ltd.,

(1st Cir.

2001). Judgment as a matter of law should be granted only if "the

evidence, together with all reasonable inferences in favor of the

verdict, could lead a reasonable person to only one conclusion,

namely, that the moving party was entitled to judgment." Marrero

v. Goya of P.R., Inc.,

(1st Cir. 2002) (internal

quotation marks omitted). Drury had the burden of proof. At best,

he demonstrated only that there is disputed evidence regarding the

officers' actions. He has failed to establish his case by

"testimony that the jury is not at liberty to disbelieve" and by

evidence that is "uncontradicted and unimpeached."

(internal

quotation marks omitted); see also Wagenmann v. Adams,

(1st Cir. 1987).

We reject Drury's contention that the court erred by denying

his motion for a new trial and motion for a mistrial. We review

this claim for abuse of discretion. See Cigna,

;

-3- United States v. Pierro,

(1st Cir. 1994). To the

extent this contention is premised on the district court's

admission of evidence, Drury bears the double burden of showing

abuse of discretion as to the admission of evidence and as to the

denial of the mistrial/new trial. See Tamko Roofing Prods., Inc.

v. Ideal Roofing Co.,

(1st Cir. 2002). The record

shows both sufficient evidence and sufficient reasons for admitting

this evidence. Drury has not and cannot show that the outcome of

the trial "is against the clear weight of the evidence such that

upholding the verdict will result in a miscarriage of justice."

Cigna,

(internal quotation marks omitted).

We also reject Drury's argument that the district court erred

by failing to instruct the jury regarding his First Amendment

rights related to disorderly conduct, and by failing to discuss his

First Amendment rights in response to a jury question. We review

jury instructions de novo. See Gifford v. Am. Canadian Carribean

Line, Inc.,

(1st Cir. 2002). The trial court's

refusal to give Drury's instruction on disorderly conduct

constitutes reversible error only "if the requested instruction was

(1) correct as a matter of substantive law, (2) not substantially

incorporated into the charge as rendered, and (3) integral to an

important point in the case." Cigna,

(internal

quotation marks omitted). Drury's requested instruction is not a

correct statement of Massachusetts law. "Fighting words" can be an

-4- element of disturbing the peace in Massachusetts. Commonwealth v.

Richards,

(Mass. 1976). The court did not err

by instructing on disorderly conduct with that in mind. It gave a

correct statement of Massachusetts law.

Jury instructions given during the course of deliberations

come "at a particularly delicate juncture" and require the court to

construct its wording carefully. Sheek v. Asia Badger, Inc.,

(1st Cir. 2000). However, as long as the court

correctly addresses the issue submitted by the jury, it may amplify

the instruction at its discretion. See Testa v. Wal-Mart Stores,

Inc.,

(1st Cir. 1998). We have carefully

reviewed the record. The judge considered Drury's arguments and

rejected them for adequate reasons consonant with Massachusetts

law.

Affirmed.

-5-