United States Court of Appeals

for 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 the 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

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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 moved to extend the deadline to file an amended pleading. The court 

denied the motion, then, after 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 to 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 inapplicable to convicted prisoners. Spence averred, in the alternative, that Banks had 

also failed to state an Eighth Amendment claim.

Discussions 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 granted judgment on 

the pleadings. Banks appeals. 

II.

There is no dispute that Federal Rule of Civil Procedure 16(b)(4) governs the motion at issue. Nor is there disagreement about which factors are 

relevant under that rule: “(1) the explanation for the failure to timely move 

for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to 

cure such prejudice.” S&W Enters., L.L.C. v. Southtrust Bank of Ala., NA, 

315 F.3d 533, 536 (5th Cir. 2003) (cleaned up).

“The good cause standard requires the party seeking relief to show 

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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 threshold is a sufficient reason to affirm the denial 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 finding that there was 

no explanation for delay—without engaging in the remainder of the fourfactor analysis: 

There is no explanation for the five-month delay before pleading the facts and allegations in the Third Amended Complaint. 

Nor is there any suggestion that any of those facts were unavailable 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 to justify further amendment to the complaint. The district 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 Enterprises: 

“Good cause generally requires a demonstration that ‘deadlines cannot reasonably be met despite the diligence of the party needing the extension.’” 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 nothing on appeal 

_____________________

1 Though the court makes this observation when describing the standard for modification 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) 

governs amendment of pleadings after a scheduling order deadline has expired.”).

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to demonstrate good cause beyond an assertion that he has been diligently 

prosecuting his case. With nothing more, we cannot conclude that the district court abused its discretion in denying [the] request to amend his complaint.” Id. This again demonstrates that failure to explain a delay in amending is sufficient reason to affirm on abuse-of-discretion review.

Moreover, though an explanation is necessary, not all explanations suffice. In S&W Enterprises, 

[t]he same facts were known to S&W from the time of its original complaint to the time it moved for leave to amend. S&W 

could have asserted interference with contract from the beginning, 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 “adequate,” and an “adequate” explanation is something more than “inadvertence.” Id. In S&W Enterprises, “inadvertence” amounted to “counsel fail[ing] to understand the impact of [a relevant] 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 deadline to amend had passed. That “is tantamount to no explanation at all.” Id. 

at 536.

AFFIRMED.

_____________________

2 This forecloses an inference from Olivarez that requesting “to replead in response to [a] motion to dismiss” is always a sufficient explanation. 997 F.3d 595. Though

that might be true in some circumstances, it is not where the need to replead is based solely 

on failure to understand the import of applicable law. See S&W Enterprises, 315 F.3d at 536.

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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 are 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 aggressively 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 inside. There, Banks 

encountered an inmate with 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 broken

Banks’s nose. 

Those allegations amount to a violation of Banks’s Eighth 

Amendment rights. 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 an Eighth Amendment

claim. But it concluded that because the complaint framed the claim as a 

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Fourteenth Amendment claim, instead of an Eighth Amendment claim, the

complaint was deficient.

For post-conviction inmates such as Banks, excessive force claims can 

arise only under the Eighth Amendment. But federal 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 district 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 diligently 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 affirms 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 his claim.

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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 failing 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 amendment 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, nor 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.

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