* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-31327

Summary Calendar

_______________

LONNIE GOLDSTON,

Plaintiff-Appellant,

VERSUS

PHIL STANSELL,

Individually and in His Official Capacity as

a Police Officer for the City of Monroe, et al.,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

(94-CV-413)

_________________________

October 7, 1997

Before JONES, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Lonnie Goldston appeals an adverse jury verdict in his

42 U.S.C. § 1983 action against the City of Monroe, Louisiana, and

against certain of its police officers in both their individual and

official capacities. We dismiss the appeal for want of -
2

jurisdiction.

I.

Members of the Monroe Police Jump Team were dispatched to

apartments located in a high crime area, to respond to reports of

drinking and fighting. Although Goldston was not involved with the

melee, nor was he a resident of the apartments, he was sitting on

a parked car with his nephew in the area surrounding the action.

Goldston was approached by Officer Phil Stansell, who was trying to

clear the area to maintain a safe perimeter between the bystanders

and the melee, and was asked to leave. 

The respective accounts of the parties differ concerning the

specific words exchanged between Stansell and Goldston, but the

parties agree, at a minimum, that Stansell asked Goldston to leave,

and Goldston refused to do so. When Goldston turned to pick up his

nephew, Stansell grabbed Goldston’s arm from behind, and other

officers approached immediately. Again, the facts are highly

disputed, but it is uncontested that Goldston was wrestled to the

ground, struck several times by the officers, and ultimately bitten

by a police dog with whose handler Goldston was struggling.

Goldston was handcuffed and charged with six misdemeanors:

criminal trespass, interfering with an officer, simple battery on

a police officer, being drunk and disorderly, disturbing the peace

with loud and profane language, and resisting arrest. The drunkand-disorderly charge was dismissed before trial, and Goldston was
3

convicted on the remaining five charges. The intermediate

appellate court reversed the disturbing-the-peace charge, and the

Louisiana Supreme Court reversed the remaining convictions,

concluding that the officers lacked probable cause to arrest

Goldston, who therefore had a right to use such force as was

reasonably necessary to resist the unlawful arrest.

Goldston filed the instant action, alleging violations of his

civil rights resulting from the unlawful arrest. The jury rejected

each of his claims. 

II.

As a threshold matter, we must determine, sua sponte, whether

we have jurisdiction. Because the district court entered a final

judgment on August 27, 1996, the deadline for filing a timely

notice of appeal was September 26. See FED. R. APP. P. 4(a).

Goldston filed his notice of appeal on December 12, well beyond the

prescribed time, unless he had filed a timely motion for judgment

as a matter of law (“j.m.l.”) or for a new trial, which filing

would toll the thirty-day period until final disposition of the

motions. See FED. R. APP. P. 4(a)(4).

Goldston did not file such a motion within the allotted ten

days. See FED. R. CIV. P. 50(b), 59(b). Rather, he filed on

September 3, 1996SSwithin ten days of the entry of final judgmentSSa

motion for extension of time in which to file post-judgment
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pleadings. In response, the court granted him thirty days to amend

his motion for enlargement of time in order to state reasons and to

file a brief in support. Goldston then filed such a memorandum

supporting his motions for j.m.l. and new trial within this

extended thirty-day period, and the court denied these motions on

November 25. 

Thus, to the extent that the grant of an extension of time was

permissible, Goldston’s December 12 filing of his notice of appeal,

falling within thirty days of the November 25 order, was timely.

Because the district court may not enlarge the time in which a

litigant is permitted to file a post-judgment motion for j.m.l. or

a new trial, however, see FED. R. CIV. P. 6(b), the September 6

order improperly extended the ten-day period.

Although a district court has no authority to extend the time

for filing a motion for new trial, if the court purports to do so,

we have held that a pro se litigant may be justified in relying on

that assumption of authority. See Fairley v. Jones, 824 F.2d 440,

442-43 (5th Cir. 1987). Goldston may not take advantage of this

precedent, however, as he was, and is, represented by counsel.

Further, we note that at the time Goldston filed his motion

for extension (September 3), time still remained (until September 11) for him to file a timely renewed motion for j.m.l. or

new trial. We see no special circumstance justifying an exception

to the rule prohibiting extensions.
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III.

A.

Although we conclude that we are without jurisdiction,

Goldston is not prejudiced by the failure to file post-judgment

motions timely. This is because the untimely motions are without

merit. For the benefit of the parties, we now proceed to explain

why this is so, assuming, arguendo, that we have jurisdiction to

consider these matters.

B.

Goldston argues that there is no evidence of probable cause

for his arrest. Although he was charged with six offenses, a false

arrest claim “does not cast its primary focus on the validity of

each individual charge; instead we focus on the validity of the

arrest. If there was probable cause for any of the charges made

. . . then the arrest was supported by probable cause.” Wells v.

Bonner, 45 F.3d 90, 95 (5th Cir. 1995) (emphasis in original).

Goldston was charged with criminal trespass, which is defined

as the offense of refusing to leave the premises of another when

reasonably requested to do so by the lawful custodian or his

representative. See MONROE CRIM. CODE § 12-90(2). Stansell testified

that he first approached Goldston in connection with his efforts to

provide perimeter security and asked Goldston to “move on.” After

Goldston refused, Stansell told him that he had been “banned” from
1 It is this evidence that distinguishes the jury’s verdict in the instant

case from the Louisiana Supreme Court’s holding in the direct criminal appeal.

That court noted that the city had not offered any evidence that Stansell had

sought to enforce Goldston’s previous ban from Parkview when he asked Goldston

to leave the premises. Presumably, the city learned from this mistake in the

criminal appeal and decided therefore, in the instant trial, to make sure that

it introduced Stansell’s testimony to that effect. 

6

ParkviewSSa reference to at least one pre-March 1995 incident in

which Goldston had been told by Sergeant Torregrossa that he was

not to return to Parkview because he had been sleeping overnight in

his van parked in the Parkview lot, in violation of H.U.D.

regulationsSSand repeated that he should to leave. According to

Stansell, when Goldston refused these repeated requests, he was

arrested for trespass.

Goldston staunchly contests Stansell’s account and argues that

other testimony contradicts Stansell’s assertion that he had been

banned from Parkview. In fact, Goldston notes correctly that

Stansell indicated for the first time at the instant trial (and not

at the previous criminal trial) that he had told Goldston to leave

because he had been banned from the premises. 

Although we do not dispute Goldston’s characterization of the

evidence, it is not within our province re-visit credibility

inferences that the jury may have made concerning Stansell’s

testimony vis-à-vis that of other witnesses. There is evidence in

the record from which the jury reasonably could have concluded that

Stansell knew that Goldston had been banned, that he informed him

of such, and that Goldston thereafter refused to leave.1 The jury
2 Goldston argues further that, even accepting Stansell’s testimony as a

correct account of the events, Stansell failed to tell him unequivocally to

“vacate the premises.” Although Goldston notes correctly that Stansell told him

“to move on,” this is sufficient evidence from which the jury could have

concluded that Goldston was on notice to leave.

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could have concluded, from this evidence, that Stansell had

probable cause to arrest Goldston for criminal trespass.2 Because

there is sufficient evidence to support the jury’s criminal

trespass probable cause finding, we may affirm without

investigating the evidence underlying the other five charged

offenses. See Wells, 45 F.3d at 95.

C.

Goldston contends that no evidence supports the jury’s finding

that the officers’ actions in permitting a trained K-9 to attack

him during his arrest did not constitute excessive force. To state

a claim for excessive force, a plaintiff must allege (1) an injury;

(2) that resulted directly and only from the use of force that was

clearly excessive to the need; and (3) the excessiveness of which

was objectively unreasonable. See Spann v. Rainey, 987 F.2d 1110,

1115 (5th Cir. 1993). The reasonableness is to be judged from the

perspective of a police officer on the scene, rather than with the

benefit of 20/20 hindsight. See Graham v. Conner, 490 U.S. 386,

396 (1989).

According to Goldston, he did not curse or strike any of the

officers and pleaded with them just to arrest him, but not to hurt
8

him. Stansell, on the other hand, testified that Goldston refused

to comply with his requests that he vacate the premises and that

Goldston “jerked away” when he reached for Goldston’s wrist in an

attempt to handcuff him. Officer Vince Hodnett, the dog's handler,

testified that he then proceeded to assist Stansell and told

Goldston that if he did not stop fighting, the dog would come out

of the car. 

According to Stansell and Hodnett, Goldston continued to

struggle with and curse at the officers, and all three eventually

fell to the ground. It was then that the dog came to Hodnett's aid

and attempted to bite Goldston. Goldston quickly agreed to stop

fighting, and Hodnett gave his dog the release command. There is

sufficient evidence from which the jury could have concluded that

the officers applied a reasonable amount of force in light of the

circumstances as they existed at the time of the arrest.

D.

Finally, Goldston argues that the district court erred in

failing to permit him to use offensive collateral estoppel to

prevent the defendants from arguing that probable cause existed to

arrest him after the Louisiana Supreme Court had found otherwise in

the direct criminal appeal. Because the instant case involves the

preclusive effect of a prior Louisiana state court judgment, we

apply Louisiana law on collateral estoppel. See Daniels v.
3 See Vicknair v. Hibernia Bldg. Corp., 479 So. 2d 904, 908 (La. 1985); Welch

v. Crown Zellerbach Corp., 359 So. 2d 154, 156 (La. 1978); Diez v. Daigle, 686

So. 2d 966, 969 (La. App. 4th Cir. 1996); Fitch v. Vintage Petroleum, 608 So. 2d

286, 289 (La. App. 3d Cir. 1992).

9

Equitable Life Assurance Soc’y of the United States, 35 F.3d 210,

213 (5th Cir. 1994).

Goldston does not take issue with the district court’s

conclusion that Louisiana law does not recognize the doctrine of

collateral estoppel.3 Rather, he argues only that it is

inequitable to permit a jury of seven lay citizens to reach a

decision in conflict with that reached by a panel of seven

Louisiana Supreme Court justices. We find no merit to this

argument.

The appeal is DISMISSED for want of jurisdiction.