Case: 22-11252 Document: 86-1 Page: 1 Date Filed: 08/20/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 20, 2024
No. 22-11252
Lyle W. Cayce
____________
Clerk
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:
The opinion issued on June 26, 2024, 105 F.4th 798, is WITHDRAWN, and the following is SUBSTITUTED:
…
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
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No. 22-11252
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.
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 pre-
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judice 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
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.
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:
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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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“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
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.
Insofar as that is what happened here, Banks’s explanation “is tantamount to no explanation at all.” Id. at 536. In his petition for rehearing,
Banks urges that we misunderstand the record. Now, he frames his failure to
understand the applicable amendment as a “factual misunderstanding”;
Banks’s counsel was not confused about the law but “about [Banks’s] status
as an inmate.” Setting aside whether his initial briefing expresses that view
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of the record, Banks’s new framing remains meritless.
S&W Enterprises stands for the principle that inadvertence is “tantamount to no explanation at all.” 315 F.3d at 536. Though, S&W Enterprises
applies that principle to inattention to law, we see no reason it does not also
apply to inattention to fact. Banks’s counsel was inattentive on that front too,
and egregiously so. As the district court found, “Banks’s counsel could have
obtained this information at any point in the proceedings through various
avenues, whether a cursory interview with Banks, an internet search of his
criminal history, or an inspection of publicly available records.”
Olivarez contemplates that, inter alia, a request “to replead in response to [a] motion to dismiss,” 997 F.3d at 602, might be a sufficient explanation in some cases. But we do not read Olivarez to hold that such a
request—here, in response to a motion for judgment on the pleadings—is a
sufficient explanation in all cases. Rather, Olivarez’s own method of analysis
suggests that we ought to look at the amending party’s conduct in its entirety.
See id. In this case, in the light of egregious inadvertence—either to the law
or to the facts—S&W Enterprises strongly counsels we find no sufficient
explanation.
The ultimate cause of Banks’s delay was his attorney’s inattention to
the particulars of this case. That his attorney was alerted to that inattention
by Spence’s motion for judgment on the pleadings is of no import.
Therefore, the judgment is AFFIRMED. The petition for rehearing
is DENIED.
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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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