# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 22 -11252

**____________ Holston Banks, III,** 
Plaintiff

— Appellant **,**

versus
**John H. Spence,**
Defendant

— Appellee

**.**

**______________________________** Appeal from the United States District Court for the Northern District of Texas USDC No. 1:19

- CV

- 217

**______________________________** Before **Smith ,**  **Graves ,**  and **Wilson ,**  Circuit Judges

**. Jerry E. Smith**  , Circuit Judge **:** Holston Banks appeals the denial of his untimely motion to amend. Because he does not adequately explain his untimeliness , we affirm.

I. Banks sued John Spence in his individual capacity for use of excessive force. Although t he facts are egregious , all that matters here is that Banks was a convicted prisoner at the time of the 2017 incident

. In October 2019, he sued under 42 U.S.C. § 1983 alleging excessive force in violation of his Fourteenth Amendment rights

. Spence answered in December

. United States Court of Appeals Fifth Circuit 

### FILED June 26, 2024 Lyle W. Cayce Clerk Case: 22-11252 Document: 76-1 Page: 1 Date Filed: 06/26/2024No. 22

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2 The court set May 2, 2022

— two and one

- half years after the initial complaint

— as the deadline for amendment of pleadings . On April 29, 2022 , Spence mov ed to extend the deadline to file an amended pleading. The court denied the motion , then, a fter a joint motion for entry of an agreed amended scheduling order , extended the deadline to amend pleadings to May 25. On May 24, Spence filed an amended answer t o Banks’ s complaint. Though the court did once more agree to amend the schedule , it did not modify the deadline to amend pleadings. On September 30, Spence moved for judgment on the pleadings , urging, inter alia , that Banks’s Fourteenth Amendment claim was inapplica

ble to convicted prisoners. Spence averred, in the alternative, that Banks had also failed to state an Eighth Amendment claim.

D iscussions in August had made Banks’s counsel aware of the Eighth/Fourteenth Amendment distinction. On October 6

— 134 days after the deadline, and 38 days after Banks admits his counsel was aware of the issue

— Banks moved to amend to assert an Eighth Amendment claim. On December 12, the district court denied that motion and grant ed judgment on the pleadings. Banks a ppeals.

II. There is no dispute that Federal Rule of Civil Procedure 16(b)(4) gov

erns the motion at issue . Nor is there disagreement about wh ich factors are relevant under that r ule: “(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential pre

judice in allowing the amend ment; and (4) the availability of a continu ance to cure such prejudice.” S&W Enters. , L.L.C. v. Southtrust Bank of Ala. , NA , 315 F.3d 533, 536 (5th Cir. 2003) (cle aned up).

“ T he good cause standard requires the party seeking relief to show Case: 22-11252 Document: 76-1 Page: 2 Date Filed: 06/26/2024No. 22

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3 that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.” Id. at 535 ( cleaned up and emphasis added )

. 1 Failure to meet that thresh old is a sufficient reason to affirm the d e nial of the motion to amend. At least twice, our court has found the lack of an explanation sufficient

to deny amendment . In Olivarez v. T

- Mobile USA, Inc. , 997 F.3d 595 (5th Cir. 2021), we were satisfied to deny amendment after find ing that there was no explanation for delay

— without engaging in the remainder of the four

factor analysis : There is no explanation for the five

- month delay before plead

ing the facts and allegations in the Third Amended Com plaint. Nor is there any suggestion that any of those facts were un

available when filing the previous three complaints. Nor did [the plaintiff] request an opportunity to replead in response to the second motion to dismiss. In sum, there is no good cause here t o justify further amendment to the complaint. The dis

trict court accordingly did not abuse its discretion in denying further leave to amend.
Id. at 602 (footnote omitted)

. Likewise , in Marable v. Department of Commerce , 857 F. App’x 836 (5th Cir. 2021) (per curiam), this court repeated the language of S&W Enter prises : “Good cause generally requires a demonstration that ‘deadlines can not rea

son ably be met despite the diligence of the party needing the exten sion.’” Id. at 838 (quoting S&W Enters. , 315 F.3d at 535). After noting a fifteen

- month delay past the deadline, we explained, “[Appellant] offers noth ing on appeal

**_____________________**

1 Though the court makes this observation when describing the standard for modifi

cation of a scheduling order, it immediately clarifies that it also applies to untimely motions to amend. See 315 F.3d at 536 (“We take this opportunity to make clear that Rule 16(b) gov erns amendment of pleadings after a scheduling order deadline has ex pired.”). Case: 22-11252 Document: 76-1 Page: 3 Date Filed: 06/26/2024No. 22

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4 to demonstrate good cause beyond an assertion that he has been diligently prosecuting his case. With nothing more, we cannot conclude that the dis

trict court abused its discretion in denying [the] request to amend his com

plaint.” Id. This again demonstrates that failure to explain a delay in amend

ing is sufficient reason to affirm on abuse

- of

- d iscretion review. Moreover, though an explanation is necessary, not all explana

tions suffice. In S&W Enter prise s , [t]he same facts were known to S&W from the time of its orig

inal complaint to the time it moved for leave to amend. S&W could have assert ed interference with contract from the begin

ning, but fails to explain why it did not. S&W’s explanation for its delayed analysis

. . . — inadvertence

— is tantamount to no explanation at all. 315 F.3d at 536. Thus, merely proffering an explanation is not enough

. Rather, that explanation has to be “ade quate,” and an “adequate” explana

tion is something more than “inadver tence.” Id. In S&W Enterprises , “inad

vertence” amounted to “counsel fail[ing] to understand the impact of [a rel

e vant] case on S&W ’s . . . claim until after the deadline [for amendment] expired.” Id. at 535. 2 That is indubitably what happened here. Banks’s counsel failed to understand the applicable law until she read Spence’s motion after the dead

line to amend had passed. Tha t “is tantamount to no explanation at all

. ” Id.
at 536.

**AFFIRMED**

.

**_____________________**

2 This forecloses an inference from Olivarez that requesting “to replead in re

sponse to [a] motion to dismiss” is always a sufficient explanation. 997 F.3d 595. Though that might be true in some circumstance s , it is not where the need to reple ad is based solely on failure to understand the import of applicable law. See S&W Enter prise s , 315 F.3d at 536. Case: 22-11252 Document: 76-1 Page: 4 Date Filed: 06/26/2024No. 22

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5 **James E. Graves, Jr.** , Circuit Judge , dubitante **:** I agree that Banks failed to give an adequate excuse for his failure to diligently seek leave to amend his complaint. So I acquiesce in the decision to affirm the judgment. I am reluctant because amendment of his complaint was arguably unnecessary. But that argument was never raised. The majority rightly acknowledges that Banks’s allegations are egregious

. The allegations a re as follows

. At the time the events allegedly took place, Banks was an inmate at the Midland County, Texas jail. Spence was the Howard County sheriff’s deputy tasked with transporting him to a court hearing. From the start of their trip , Spence acted agg ressively toward Banks , yelling that he was going to take Banks to the state prison in Huntsville . When they arrived at Spence’s unmarked vehicle, Spence shackled Banks’s hands and feet and directed him to get in side

. There , Banks encountered an inmate wit h a bloodied face and, in the front passenger seat ,
a woman holding a gun. When Banks began yelling for help, Spence punched him repeatedly in the face. A doctor later confirmed that Spence had broke n Banks’s nose.

Those allegations amount to a violation of Banks’s Eighth Amendment right s

. See Whitley v. Albers , 475 U.S. 312, 320

– 21 (1986) ( Eighth Amendment excessive force claim requires that officer applied force “maliciously and sadistically for the [subjective] purpose of causing harm.”). Nevertheless, the district court entered judgment for Spence. In reaching that decision, it considered two motions at the same time : Spence’s motion for judgment on the pleadings and Banks’s motion for leave to amend his complaint. In considering Spence’s motion, the district court acknowledged that Banks alleged enough facts to state a n Eighth Amendment claim. But it concluded that because the complaint framed the claim as a Case: 22-11252 Document: 76-1 Page: 5 Date Filed: 06/26/2024No. 22

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6 Fourteenth Amendment claim , i nstead of an Eighth Amendment claim , the

com plaint was deficient

. F or post

- conviction inmates such as Banks, excessive force claims can arise only under the Eighth Amendment. But f ederal pleading rules do not require formally correct legal framing of claims . Banks’s complaint needed only to “ inform [Spence] of the factual basis for [his] complaint .” Johnson v. City of Shelby , 574 U.S. 10, 12 (2014) (per curiam) ; see also Skinner v. Switzer , 562 U.S. 521, 530 (2011) (“[A] complaint need not pin plaintiff ’ s claim for relief to a precise legal theory .”) ; Smith v. Barrett Daffin Frappier Turner & Engel, L.L.P. , 735 F. App’x 848, 854 (5th Cir. 2018) (“[F] actual allegations alone may state a claim for relief

— even without referencing the precise legal theory

. . . upon which the plaintiff seeks relief. ”). It did , and not just as a technical matter. After all, it was Spence who originally notified Banks that the claim should have been brought under the Eighth rather than Fourteenth Amendment. Banks’s complaint needed no amendment. In the same opinion , the dis trict court considered Banks’s motion for leave to amend , which urged the court to allow Banks to correct his complaint

. The district court concluded that Banks failed to show that his lawyers acted diligen tly in seeking that relief. On that , there was no error , as the majority correctly concludes.

Banks’s appellate briefing focused solely on the district court’s denial of leave to amend , not the grant of judgment on the pleadings

. The majority therefore considers leave to amend to be the only question presented and it reaches only that issue. The result is troubling: It affirm s the judgment against Banks because his lawyers did not diligently seek to amend a complaint that required no amendment

. Consequently, Banks is denied the opportunity to pursue hi s claim. Case: 22-11252 Document: 76-1 Page: 6 Date Filed: 06/26/2024No. 22

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7 Not only is that outcome unfortunate, but I am doubtful it is required. In my view, nothing prevents us from reaching whether judgment on the pleadings itself was proper. If it had been denied , Banks’s motion to amend would be rendered moot

. Escamilla v. Elliott , 816 F. App ’ x 919, 927 n.10 (5th Cir. 2020) (district court’s error of dismissing claim mooted appeal of denial of leave to amend that claim) ; Schmees v. HC1.COM, Inc. , 77 F.4th 483, 487 (7th Cir. 2023). There are, of course, judicial doctrines that often prevent us from reaching unbriefed issues. For instance , parties like Banks generally forfeit arguments they do not adequately brief. Rollins v. Home Depot USA , 8 F.4th 393, 397 (5th Cir. 2021). But we make an exception when the issue is purely legal and fail ing to consider it would result in a miscarriage of justice. Perhaps an exception should be made here. The Supreme Court has also warned that we abuse our discretion if we depart drastically from the issues that the parties present

. United States v. Sineneng

- Smith , 590 U.S. 371, 375 (2020). But no drastic departure is required

. The question of whether leave to amend is appropriate is intertwined with the question of whether amend ment is necessary

. See Escamilla , 816 F. App ’ x at 927 n.10; Schmees , 77 F.4th at 487.
I find no error in the district court’s disposition of Banks’s motion for leave to amend , n or in the majority’s review of it

. Yet I am doubtful that Banks’s disturbing allegations should fail, and his case should end, because he lost a motion to amend a complaint that needed no amending. Case: 22-11252 Document: 76-1 Page: 7 Date Filed: 06/26/2024