Petition for Writ of Certiorari — Holston Banks, III, Petitioner v. John H. Spence

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APPENDIX - A

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

ABILENE DIVISION

HOLSTON BANKS III,

Plaintiff,

No. 1:19-CV-217-H

JOHN SPENCE

Defendant.

ORDER DENYING MOTION TO AMEND AND

GRANTING JUDGMENT ON THE PLEADINGS

Plaintiff Holston Banks III claims to have suffered a grave constitutional violation at

the hands of defendant John Spence. His complaint describes an unwarranted physical

assault by Spence shortly before transporting Banks to a court hearing. Irrespective of the

concerning facts alleged, however, Banks fails to assert a cognizable claim for relief under

the Fourteenth Amendment due to his status as a convicted prisoner at the time of the

alleged offense. Further, Banks has not shown good cause to amend his complaint at this

late stage of the proceedings. The Court does not take lightly the gravity of Banks’s

allegations. But it will not grant him his requested relief in light of his unjustifiably late

motion to amend and the undisputed legal error contained in his complaint. Therefore, the

Court denies Banks’s Motion to Amend Pleadings (Dkt. No. 53) and grants Spence’s

Motion for Judgment on the Pleadings (Dkt. No. 52). Spence’s Motion for Summary

Judgment (Dkt. No. 60) and the parties’ Joint Motion for Continuance of Pretrial Deadlines

and Trial (Dkt. No. 75) are denied as moot.

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Factual Background

The Court recounts the facts of this case in the light most favorable to Banks, as it

must for purposes of resolving the pending motion for judgment on the pleadings. See Doe v.

MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). On October 4, 2017, a jury convicted

Banks of a drug offense, and he was sentenced to a five-year term of imprisonment. Dkt.

No. 52-1. On October 19, 2017, during his incarceration at the Midland County Jail, Banks

was escorted to a location where he met John Spence, his transport officer. Dkt. No. 1 ff 910. According to Banks, Spence “began yelling and threatening to take [Banks] to the

Huntsville prison,” but jail staff clarified that his destination was the Howard County

Courthouse. Id. ff 11-12. Spence grabbed Banks tightly by the arm and “sp[oke]

aggressively” towards him as he led him to the sally port. Id. f 13.

On the way to the sally port, Banks started to exchange words with Spence in

response to his “harassing comments.” Id. f 14. Spence then restrained Banks’s hands and

legs in shackles. Id. f 18. Banks claims that he feared for his safety for several reasons:

(1) Spence’s vehicle was unmarked; (2) another inmate being transported had blood on his

face, which Banks believes resulted from an assault from Spence; and (3) an unknown

woman was sitting in the passenger seat with a gun in her lap. Id. at ff 15-17, 20-24.

Banks thought “something was seriously wrong” so yelled for help, which prompted Spence

to punch him several times in the face and cover his nose and mouth with his hand. Id.

Banks could not breathe, and his nose began bleeding profusely. Id. ff 28.

The assault eventually ended, and the drive to the Howard County Courthouse

began. Id. f 30. While in route, Banks claims that Spence threatened him with more jail

time if he attempted to retaliate or escape. Id. Iff 32-33. Upon arrival, Banks participated in

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the scheduled hearing. Id. Tfl[ 38, 43. He notified the presiding judge of Spence’s conduct,

but the judge said that he lacked jurisdiction over what happened. Id. f 42. After the

hearing, Banks returned to the Midland County Jail. Id. H 44.

About two weeks later, after repeated requests by Banks for medical attention, jail

staff took him to the hospital. Id. H 50. An x-ray confirmed that Banks had a broken nose.

Id. If 51. Banks claims that the doctor recommended him to see a surgeon, so the Midland

County Jail scheduled an appointment. Id.

53-54. But Banks was transferred to another

facility before he could attend the appointment. Id.

55-57. Having never received

treatment for his broken nose, Banks complains of breathing problems, sinus infections,

headaches, and vision problems. Id. \ 70.

Procedural History

Banks brought a 42 U.S.C § 1983 claim against Spence in October 2019, alleging that

Spence used excessive force against him and, consequently, deprived him of his rights

secured by the Fourteenth Amendment. Id. ^ 115-24. Banks also brought several Monell

claims against other defendants {id.

125-221), but those claims and defendants have since

been dismissed (Dkt. Nos. 27 at 15; 29 at 1; 30). Trial for Banks’s lone surviving claim is

scheduled for January 17, 2023. Dkt. No. 51.

The deadline for the parties to amend their pleadings was initially set on May 2,

2022—more than two-and-a-half years after Banks filed his complaint. Dkt. No. 34 at 1; see

Dkt. No. 1. The Court’s scheduling order cautioned that no party could extend that

deadline without “leave of court, upon a showing of good cause.” Dkt. No. 34 at 3. The

Court later extended the deadline to May 25, 2022, recognizing that, even though the

parties had not shown good cause, a brief extension was warranted because neither party

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opposed it and Spence had only recently retained defense counsel. Dkt. No. 42. But the

Court made no further allowances after that point. Spence timely filed an amended answer

(Dkt. No. 44), but Banks did not amend his complaint.

In late September, Spence moved for judgment on the pleadings. Dkt. No. 52.

Spence argues that because “a convicted prisoner may only bring a claim for excessive force

under the Eighth Amendment,” Banks’s excessive-force claim under the Fourteenth

Amendment lacks merit. Id. at 1. Alternatively, Spence argues that even if Banks had

brought his claim under the Eighth Amendment, he has failed to allege facts showing that

Spence used excessive force. Id. at 7. In response, Banks insists that he has pled facts to

support an excessive-force claim under the Eighth Amendment, but he “concedes that the

Fourteenth Amendment... is inapplicable to [the] excessive force claim [because] [Banks]

was a convicted prisoner at the time [of the offense].” Dkt. No. 66 at 1.

“In light of [Spence’s] motion” for judgment on the pleadings, Batiks moved to

amend his complaint to assert his excessive-force claim under the correct amendment. Dkt.

No. 53 at 1-2. Banks explains that his counsel “w[ere] not aware that [he] was convicted”

at the time of the offense due to the “just two-week gap” between the date of his conviction

and the date of the altercation with Spence. Id. at 3-4. Banks argues that an amendment in

this case would not prejudice Spence because it “[would] not alter the facts underlying the

claim but simply the standard by which the Court will analyze” it. Id. at 7.

In response, Spence counters that Banks has failed to satisfy the good-cause standard

because he has not “show[n] that, despite the exercise of diligence, he could not [have]

amend[ed] his [c]omplaint prior to the deadline.” Dkt. No. 55 at 1. Spence contends that

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Banks’s counsel could have uncovered his prisoner status well before the deadline through

“basic fact gathering” and “background legal research.” Id. at 8-10.

In reply, Banks concedes that “if [the explanation for untimely seeking amendment]

alone were to be looked at, it would most likely weigh against a finding of good cause.”

Dkt. No. 66 at 3. Still, he maintains that the importance of the amendment in this case

coupled with the lack of prejudice to Spence outweighs his counsel’s lack of diligence in

timely seeking amendment. Id. at 7.

Both Spence’s Motion for Judgment on the Pleadings (Dkt. No. 52) and Banks’s

Motion to Amend Pleadings (Dkt. No. 53) are ripe for review.

Legal Standards

Motion to Amend

When the deadline to amend pleadings has expired, a movant must demonstrate

“good cause” to extend that deadline. S&W Enters., L.L.C. v. SouthTrust Bank ofAla., NA,

315 F.3d 533, 536 (5th Cir. 2003); see Fed. R. Civ. P. 16(b)(4) (providing that a party may

only modify a scheduling order “for good cause and with the judge’s consent”). The goodcause standard “requires” a “showing by the movant that ‘the deadlines cannot reasonably

be met despite the diligence of the party needing extension.’” Olivarez v. T-Mobile USA, Inc.

997 F.3d 595, 602 (5th Cir. 2021) (quoting S&W Enters., 315 F.3d at 535). Courts consider

four factors in determining whether a movant has demonstrated good cause: “(1) the

explanation for the failure to timely move for leave to amend; (2) the importance of the

Spence has also moved for summary judgment (Dkt. No. 60), to which Banks has responded (Dkt.

No. 69). Spence’s reply is due on December 13,2022. Dkt. No. 74. The Court refrains from

analyzing the merits of the motion at this stage given the potential for resolution based on the

preceding motions.

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amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a

continuance to cure such prejudice.” S&WEnters., 315 F.3d at 536; Filgueira v. U.S. Bank

Nat. Ass’n, 734 F.3d 420, 422 (5th Cir. 2013). A court should assess these factors

“holistically.” EEOCv. Service Temps, Inc., No. 3.08-CV-1552-D, 2009 WL 3294863, at *3

(N.D. Tex. Oct. 13, 2009) (Fitzwater, J.). “It [should] not mechanically count the number

of factors that favor each side. And it [must] remember[] at all times that the good cause

inquiry focuses on the diligence of the party seeking to modify the scheduling order.” Id.

Only if a court determines that a party has “show[n] good cause for missing the deadline”

for amendment will the “more liberal” standard of Rule 15(a) then apply. Filgueira, 134

F.3d at 422 (internal citation omitted).

Judgment on the Pleadings

Federal Rule of Civil Procedure 12(c) provides that “[a]fiter pleadings are closed ... a

party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A Rule 12(c)

motion for judgment on the pleadings “is designed to dispose of cases where the material

facts are not in dispute2 and a judgment on the merits can be rendered by looking to the

substance of the pleadings and any judicially noticed facts.” Hale v. MetrexRsch. Corp., 963

F.3d 424, 427 (5th Cir. 2020). The standard for analyzing a motion for judgment on

the pleadings “is identical to the standard for [a] Rule 12(b)(6) motion[] to dismiss for failure

to state a claim.” Waller v. Hanlon, 922 F.3d 590, 599 (5th Cir. 2019). To survive, “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.”’ Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A

2 Spence concedes to the facts alleged in Banks’s complaint “for purposes of [his motion for

judgment on the pleadings] only.” Dkt. No. 52 at 4.

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complaint fails to state a claim when it “[f]ail[s] to plausibly allege an essential element” of

that claim. Arnold v. Williams, 979 F.3d 262, 269 (5th Cir. 2020).

Analysis

The Court denies Banks’s motion to amend his complaint because he has

failed to show good cause.

Before the Court determines whether it can resolve this case on the pleadings, it must

determine whether Banks has shown good cause to extend the deadline to amend his

complaint. For the reasons below, the Court finds that he has not.

Banks cannot provide a sufficient explanation for his untimely

motion to amend.

The first factor of the good-cause analysis turns on the movant’s explanation for his

failure to timely move for leave to amend. S&WEnters., 315 F.3d at 536. Here, Banks has

failed to provide a sufficient explanation.

“Diligence in purs[u]ing a claim is the most important factor bearing on the ‘good

cause’ inquiry.” O’Connor v. Cory, No. 3:16-CV-1731-B, 2018 WL 5848860, at *4 (N.D.

Tex. Nov. 8, 2018) (Boyle, J.) (internal quotation marks and citation omitted); Williams v.

WasteMgmt, Inc., No. 3:16-CV-2943-L-BN, 2018 WL 3803917, at *2 (N.D. Tex. June 29,

2018) (Horan, J.) (finding that a plaintiffs “lack of diligence in timely amending his

pleadings [wa]s paramount” to the good-cause analysis). “[T]he movant must show that,

despite his diligence, he could not have reasonably obtained the information needed to

amend his complaint before the scheduling deadline.” Thomas v. St. Joseph Health Sys., No.

5:20-CV-028-H, 2022 WL 4349319, at *6 (N.D. Tex. Sept. 19, 2022) (Hendrix, J.) (internal

quotation marks and citation omitted). “[T]he standard is ‘good cause,’ and the good cause

standard focuses on the diligence of the party seeking to modify the scheduling order.”

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Hernandez v. Groendyke Transp., Inc., No. 3:21-CV-0108-D, 2022 WL 487915, at *2 (N.D.

Tex. Feb. 17, 2022) (Fitzwater, J.) (quoting Matamoros v. Cooper Clinic, No. 3:14-CV-0442-D,

2015 WL 4713201, at *3 (N.D. Tex. Aug. 7, 2015) (Fitzwater, J.)).

A movant’s failure to realize an error in his complaint until the opposing party brings

that error to light shows a lack of diligence. See Valcho v. Dallas Cnty. Hosp. Dist., 658 F.

Supp. 2d 802, 815 (N.D. Tex. 2009) (Fitzwater, J.) (finding no justification for an untimely

amendment when an attorney “was not aware that.. . claims in her complaint might be

insufficient until [the defendant] filed its motion for summary judgment”); see also Taylor v.

Trevino, 569 F. Supp. 3d 414, 429 (N.D. Tex. 2021) (Fitzwater, J.) (“Mere inadvertence on

the part of the movant is insufficient to constitute ‘good cause.’”).

A lack of diligence is especially apparent when the movant had access to records .

relevant to the amendment throughout the litigation but failed to timely review those

records. See Lopez v. Reliable Clean-Up & Support Servs., LLC, No. 3:16-CV-2595-D, 2018 WL

3609271, at *4 (N.D. Tex. July 27, 2018) (Fitzwater, J.) (declining to find good cause when

a party had possessed documents relevant to amendments for at least eighteen months

before moving to amend its complaint); Shojherv. Shoukfeh, No. 5:15-CV-152-C, 2017 WL

3841641, at *2 (N.D. Tex. Apr. 7, 2017) (Cummings, J.) (denying leave to amend where the

plaintiff “had access to all.. . [relevant] medical records early in the case, yet waited more

than a year after filing suit to first hire expert witnesses to review the records”).

Banks has not shown the requisite diligence to justify his untimely motion to amend.

Banks filed his complaint on October 18, 2019. Dkt. No. 1. The Court gave him until May

25, 2022, to make any amendments to his complaint. Dkt. No. 42. Banks made none. On

September 30, 2022, Spence moved for judgment on the pleadings, alleging that Banks’s

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complaint contained a fatal legal error. Dkt. No. 52. Only then did Banks move for leave

to amend. Dkt. No. 53. Despite having had three years prior to Spence’s motion to attempt

to amend his complaint, he made no such effort. This sequence of events makes clear that

Banks would have remained ignorant of the alleged error in his complaint apart from

Spence putting him on notice of it. Now, all discovery and motion deadlines have passed,

and trial is less than two months away. See Dkt. Nos. 34; 42; 51. Bank’s extreme delay in

seeking amendment—and only when confronted face-to-face with the possibility of defeat

on the merits—shows a lack of diligence. SeeBhatti v. Concepts Am. Inc., No. 3:14-CV-3445L, 2016 WL 11733649, at *2 (N.D. Tex. Aug. 15, 2016) (Lindsay, J.) (finding that the

“oversight of [the plaintiff’s counsel] in failing to realize, until after the [defendants] filed

their Rule 12(c) motion,” that the complaint mischaracterized the plaintiffs theory for relief

could not justify an amendment three years after the complaint was filed).

Even more troubling than Banks’s delay in seeking amendment is the accessibility of

the information that grounds his proposed amendment. Banks seeks to amend his

complaint to comport with the fact that at the time of the alleged offense, he was a

convicted prisoner—not a pretrial detainee, as presently alleged in his complaint and

previously understood by his counsel. Dkt. No. 53 at 1-2. His counsel explain that they

initially classified Banks as a pretrial detainee due to a pending burglary charge against him

at the time of the alleged offense. Dkt. No. 52 at 3-4. They had not realized that Banks had

separately been convicted for another charge just two weeks beforehand. Id. Banks’s

transition between legal statuses in the midst of ongoing criminal proceedings against him

may justify his counsel’s initial mistake. But it cannot justify their failure to identify his

correct status until five years after his conviction (see Dkt. No. 52-1) and three years after filing

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his complaint (see Dkt. No. 1). Spence rightfully notes that 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. Dkt. No. 55 at 9-10.

In addition to the general availability of the relevant information, Banks’s counsel

received concrete notice of Banks’s prisoner status at three points in the litigation: (1) when

Spence’s counsel produced Banks’s conviction records on August 11, 2022; (2) when Banks

acknowledged his prisoner status during a deposition on August 16, 2022; and (3) when

Spence’s counsel provided notice of their forthcoming motion for judgment on the pleadings

on August 29, 2022. Dkt. No. 55 at 6. Still, Banks did not move to amend his complaint

until early October 2022. See Dkt. No. 53. His counsel explain that because a senior

attorney “had a breakdown in communication” with Banks, a junior associate handled the

August 2022 discovery and deposition of Banks and “did not appreciate the significance” of

the newfound information. Dkt. No. 62 at 4. But a senior attorney’s choice to entrust a

first-year associate to “tak[e] the lead” on the case and to apparently refrain from reviewing

any discovery himself cannot justify his ignorance to information critical to the life of the

suit. See id. Regardless, as discussed above, more concerning is the fact that Banks’s

counsel could have obtained this information through a variety of other methods—well

before the August 2022 revelations—but failed to do so.

Despite Banks’s counsel’s tenuous explanation for their failure to amend sooner, they

ultimately admit that the “misunderstanding on the conviction date was no doubt an error

by counsel” and that if the Court considered the sufficiency of their explanation alone, “it

would most likely weigh against a finding of good cause.” Dkt. No. 62 at 3-4. The Court

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agrees that Banks has failed to provide a sufficient explanation for his untimely motion to

amend. Therefore, the first—and most important—factor of the good-cause analysis weighs

against allowing his proposed amendment.

ii.

The proposed amendment is important.

The second good-cause factor surrounds the importance of the amendment to the

broader litigation. S&WEnters., 315 F.3d at 536. This factor favors Banks.

Courts deem an amendment to be important when it directly impacts a party’s

prospect of recovery. Feldman v. Stryker Corp., No. 3:18-CV-1416-S, 2020 WL 2507684, at

*2 (N.D. Tex. May 15, 2020) (Scholer, J.) (quoting Kouzbari v. Health Acquisition Co., No.

3:18-CV-0126-D, 2018 WL 6514766, at *3 (N.D. Tex. Dec. 11, 2018) (Fitzwater, J.)); see

also Lynch v. Pizza Hut, LLC, No. 7:21-CV-00094-0, 2022 WL 9246695, at *2 (N.D. Tex.

Sept. 13, 2022) (O’Connor, J.) (finding an amendment to be important because “[i]f [the

plaintiff] [wa]s not granted leave to amend, her case [would be] over, and final judgment

[would] issue”); Davis v. Dallas County, 541 F. Supp. 2d 844, 849 (N.D. Tex. 2008)

(Fitzwater, J.) (finding an amendment to be important where it would preclude the

dismissal of the plaintiffs’ claims).

Here, Banks’s prospect of recovery depends on whether he can amend his complaint.

His original complaint alleges an excessive-force claim against Spence under the Fourteenth

Amendment, discussing the reasonable-officer standard and mistakenly labeling Banks as a

pretrial detainee. Dkt. No. 1

7, 155-24. In contrast, his amended complaint would bring

his excessive-force claim under the Eighth Amendment, instead analyzing the intent-topunish standard and correcting Banks’s status to that of a convicted prisoner. Dkt. No. 53-1

THI 70-94. As discussed more below (see infra Section 4.B), only a pretrial detainee may

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assert a claim of excessive force under the Fourteenth Amendment; a convicted prisoner, on

the other hand, must assert such a claim under the Eighth Amendment. See Kingsley v.

Hendrickson, 576 U.S. 389, 400 (2015). Therefore, Banks—indisputably a convicted prisoner

at the time of the alleged offense—cannot state a plausible claim for relief under the

Fourteenth Amendment, as his complaint is currently pled. Apart from his proposed

amendment, then, his claim will fail, and he will not recover.

But the parties do not dispute whether Banks’s complaint is flawed as currently pled

(see Dkt. Nos. 52 at 1; 66 at 1); the question is whether, if Banks properly frames his claim

under the Eighth Amendment, it will survive. The Court finds that it would. Banks alleges

that Spence punched him repeatedly in the face, breaking his nose, all while Banks was

restrained in shackles and not attempting to fight back or escape. Dkt. No. 53-1 1fl| 16, 2526, 49-50, 59, 79. Taking these facts as true, the violent force exerted by Spence exceeded

the amount needed to quell what Banks characterizes as a mere verbal disturbance. His

claims therefore support a finding under the Eighth Amendment that Spence exercised force

“maliciously and sadistically for the very purpose of causing harm.”3 See Whitley v. Albers,

475 U.S. 312, 320-21 (1986); see also Valencia v. Wiggins, 981 F.2d 1440, 1443, 1447 (5th Cir.

1993) (holding that a guard “used force maliciously and sadistically” when he placed a

prisoner who caused a verbal disturbance and refused orders in a choke hold and then struck

him at least three times while he was handcuffed); Morris v. Trevino, 301 F. App’x 310, 313

(5th Cir. 2008) (holding that a plaintiff stated a valid excessive-force claim under the Eighth

3 In determining Spence’s intent, the Court considers “the well-known Hudson factors—’the extent of

injury suffered, the need for application of force, the relationship between that need and the

amount of force used, the threat reasonably perceived by the responsible officials, and any efforts

made to temper the severity of a forceful response.’” Cowart v. Erwin, 837 F.3d 444, 452-53 (5th

Cir. 2016) (citing Hudson v. McMillian, 503 U.S. 1, 7 (1992)).

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Amendment because “the force exerted by [the defendant] was disproportionate to the

amount of force necessary to maintain or restore order”). The Court thus finds that Banks’s

amended complaint would survive judgment on the pleadings.

Because Banks’s proposed amendment could make the difference between any

recovery or none at all, the second factor of the good-cause analysis weighs in favor of

permitting him to amend his complaint.

iii.

Allowing an amendment would prejudice Spence to a certain extent,

and a continuance would cure some of that prejudice.

The Court will consider the third and fourth factors of the analysis together. The

third factor asks whether allowing a late amendment will prejudice the nonmovant and, if

so, the fourth asks whether a continuance would cure that prejudice. S&WEnters., 315 F.3d

at 536. In this case, allowing Banks’s amendment would prejudice Spence to a certain

degree, and a continuance would cure some of that prejudice.

Courts have held that an untimely motion for leave to amend can prejudice the

nonmovant “by prolonging the litigation, delaying the resolution of the case, and requiring

that party to file new dispositive motions.” Shaunfield v. Experian Info. Sols., Inc., No. 3:12CV-4686-M (BH), 2013 WL 12354439, at *6 (N.D. Tex. Dec. 20, 2013) (Lynn. J.) (citing

Lindsey v. OcwenLoan Servicing, LLC, No. 3:10-CV-967-L, 2011 WL 2550833, at *5 (N.D.

Tex. June 27, 2011) (Lindsay, J.)). Courts have also found prejudice when an amendment

“drastically reffame[s] [a] suit” in the face of impending deadlines or an upcoming trial

date. Guardian Techs., LLC v. Radio Shack Corp., No. 3:09-CV-00649-B, 2010 WL 11534474,

at *3 (N.D. Tex. Aug. 13, 2010) (Boyle, J.); see also King v. Life Sch., No. 3:10-CV-0042-BH,

2011 WL 5242464, at *2 (N.D. Tex. Nov. 3, 2011) (Ramirez, J.) (finding prejudice when an

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amendment “essentially restarted] the lawsuit for amended pleadings, discovery, and

motions” after over a year and a half of litigation).

Courts “more carefully scrutinize a party’s attempt to raise new theories of recovery

by amendment when the opposing party has filed a [dispositive motion].” Parish v. Frazier,

195 F.3d 761, 764 (5th Cir. 1999); see Valcho v. Dali. Cnty. Hosp. Dist., 658 F. Supp. 2d 802,

815 (N.D. Tex. 2009) (“This court has frequently found prejudice when a party seeks leave

to amend after the opposing party has filed a motion for summary judgment.”) (Fitzwater,

J.). Courts have recognized that permitting a plaintiff to amend his complaint following a

defendant’s dispositive motion often “undermine[s] the [defendant’s right to prevail on a

motion that necessarily was prepared without reference to an unanticipated amended

complaint.” Overseas Inns S.A. P.A. v. United States, 911 F.2d 1146, 1151 (5th Cir. 1990).

For that reason, a plaintiff “should not, without adequate grounds, be permitted to avoid []

judgment by the expedient of amending [his] complaint.” Id.

Allowing Banks to amend his complaint at this late juncture would cause prejudice

in two ways. First, it would prejudice this Court’s and the parties’ common interest in the

timely resolution of this dispute. This case has already persisted for over three years (see

Dkt. No. 1), and trial is less than two months away {see Dkt. No. 51). The filing of Banks’s

amended complaint would require Spence to file new pleadings and motions responding to

the operative complaint and, potentially, engage in more discovery regarding Banks’s new

cause of action. Under the current schedule, Spence lacks the time necessary to complete

these tasks and also meet the impending pretrial deadlines and prepare for a trial in January.

A continuance could, of course, alleviate this pressure, but at the same time, it would further

delay a final resolution in this case, which would prejudice the parties.

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Second, given that Banks moved to amend his complaint in response to Spence’s

motion for judgment on the pleadings, allowing an amendment would frustrate Spence’s

interest in obtaining a judgment on the basis of his motion. The Court and the parties alike

acknowledge that Banks has incorrectly asserted his excessive-force claim under the

Fourteenth Amendment. To allow Banks to avoid dismissal by retroactively curing an error

identified by his opponent would prevent Spence from obtaining a fair outcome based on his

attorney’s labor and expertise. The amount of time that has passed since Banks filed his

original complaint only exacerbates this prejudice, as Spence has now—after three years of

litigation, the completion of discovery, and the expiration of the deadline to amend

pleadings—developed an expectation in prevailing on a sure-fire legal theory that Banks has

overlooked until now. Put simply, Spence has earned the right to succeed on the merits of

his motion, and to deny him this right would cause him prejudice.

One factor does, however, mitigate the prejudice to Spence: the similarity of Banks’s

amended complaint to his original complaint. Although each version presents a different

claim for relief, each relies largely—if not entirely—on the same facts, discovery, and

accusations regarding Spence’s treatment of Banks before transporting him on October 19,

2017. Compare Dkt. No. 1, with Dkt. No. 53-1. Given this overlap, “granting [Banks] leave

to file [his] amended complaint w[ould] not prejudice [Spence] by complicating the case and

needlessly increasing the expense of the case.” See Sustainable Modular Mgmt., Inc. v.

Travelers Lloyds Ins. Co., No. 3:20-CV-1883-D, 2021 WL 4822017, at *7 (N.D. Tex. Oct. 15,

2021) (Fitzwater, J.); see also Clapper v. Am. Realty Invs., Inc., No. 3:14-CV-2970-D, 2017 WL

978098, at *4 (N.D. Tex. Mar. 14, 2017) (Fitzwater, J.) (finding that a new claim did not

prejudice the defendant because the claim “shared many factual predicates with [the

-15-

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Page 16 of 21 PagelD 1066

plaintiffs’] existing claims”). Even more, Spence has already briefed his pending dipositive

motions through the lens of an Eighth Amendment analysis. Dkt. Nos. 52 at 7-10; 60 at

16-30; 67 at 2-5. The attention already paid by Spence to the issue suggests that (1) he has

anticipated that Banks might amend his complaint to bring his excessive-force claim under

the Eighth Amendment, and (2) he would not need to “restart” with responsive pleadings

and motions because he has already extensively analyzed the issue.

On balance, though permitting Banks to amend his complaint would prolong these

proceedings and undercut Spence’s expectation in prevailing on a dispositive motion, the

overlap between Banks’s original and amended claims would relieve him substantially of

this prejudice. The effect of a continuance is negligible, as it would both cure and cause

prejudice to some degree. Based on these competing variables, the Court finds that the third

and fourth good-cause factors do not materially affect the analysis.

iv.

Upon weighing all of the factors, Banks cannot show good cause for

an amendment.

Upon considering the factors holistically, the Court finds that Banks has failed to

show good cause for his untimely motion to amend. Despite the importance of his

proposed amendment and the neutralized prejudice to Spence, Banks has failed to

demonstrate diligence—the most important factor. Courts in this district have consistently

“denie[d] motions to amend [a] scheduling order when the moving party fails to

demonstrate that, despite its diligence, it could not have reasonably met the scheduling

deadline.” Cub USA Servs., LLC v. Jetta Operating Co., Inc., No. 3:14-CV-2508-D, 2016 WL

1028128, at *2 (N.D. Tex. Mar. 15, 2016) (Fitzwater, J.); see, e.g., Mallory v. Lease Supervisors,

LLC, No. 3:17-CV-3063-D, 2019 WL 3253364, at *4 (N.D. Tex. July 19, 2019) (Fitzwater,

J.) (finding that even where “the amendment [wa]s important,. . . the undue prejudice

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Page 17 of 21 PagelD 1067

factor either favor[ed] granting leave to amend or [wa]s neutral, and ... the availability of a

continuance favorfed] granting leave to amend,” good cause did not exist because the

movant failed to show diligence); Matamoros, 2015 WL 4713201, at *3 (same); Hernandez,

2022 WL 487915, at *2 (same).

Ultimately, “the standard is ‘good cause,’ and the good cause standard focuses on

the diligence of the party seeking to modify the scheduling order.” Hernandez, 2022 WL

487915, at *2. Here, Banks has failed to show the diligence necessary to establish good

cause, so the Court denies him leave to amend his complaint.

Banks’s complaint as currently pled cannot survive Spence’s motion for

judgment on the pleadings.

“Section 1983 is not itself a source of substantive rights; it merely provides a method

for vindicating already conferred federal rights.” Bauer v. Texas, 341 F.3d 352, 357 (5th Cir.

2003) (citing Albright v. Oliver, 510 U.S. 266, 271 (1994)). A plaintiff must therefore identify

a specific right secured by the Constitution or laws of the United States that has been

violated. Baker v. McCollan, 443 U.S. 137, 140 (1979). “A section 1983 complaint must

plead specific facts and allege a cognizable constitutional violation” in order to state a claim

for relief. Mills v. Crim. Dist. Ct. No. 3, 837 F.2d 677, 678 (5th Cir. 1988).

“[T]he Eighth Amendment... serves as the primary source of substantive protection

to convicted prisoners in cases . . . where the deliberate use of force is challenged as

excessive and unjustified.” Whitley, 475 U.S. at 327. It cautions specifically against “cruel

and unusual punishments.” U.S. Const, amend. VIII. “[Ojbduracy and wantonness

. . . characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.”

Whitley, 475 U.S. at 319. Therefore, in analyzing an Eighth Amendment excessive-force

claim, the key inquiry is “whether force was applied in a good faith effort to maintain or

-17-

Case l:19-cv-00217-H Document 76 Filed 12/12/22 Page 18 of 21 PagelD 1068

restore discipline or maliciously and sadistically for the very purpose of causing harm.” Id.

at 320-21 (internal quotation marks and citation omitted).

Unlike convicted prisoners, “pretrial detainees . .. cannot be punished at all, much

less ‘maliciously and sadistically.’” Kingsley, 576 U.S. at 400. For this reason, “[t]he

constitutional rights of a pretrial detainee . .. flow from [] the procedural and substantive

due process guarantees of the Fourteenth Amendment.” Kitchen v. Dallas County, 759 F.3d

468, 477 (5th Cir. 2014). In contrast to the subjective standard that characterizes Eighth

Amendment excessive-force claims, “the appropriate standard for a pretrial detainee’s

excessive force claim is solely an objective one.” Kingsley, 576 U.S. at 397. “[Pjroof of

intent (or motive) to punish is [not] required.” Id. at 398. Rather, the analysis turns on “the

reasonableness ... of the force used.” Id. at 397.

The parties agree that Banks cannot state a plausible claim for relief under the

Fourteenth Amendment, so the Court will not belabor the point here. See Dkt. Nos. 52 at 1;

66 at 1. The Supreme Court has made clear the difference between excessive-force claims

brought under the Eighth Amendment and those brought under the Fourteenth

Amendment. Kingsley, 576 U.S. at 400 (“The language of the two Clauses differs, and the

nature of the claims often differs.”). Each type of claim protects a different type of plaintiff

in a different set of circumstances. In particular, a convicted prisoner must assert any claim

of excessive force claim under the Eighth Amendment because it “is specifically concerned

with the unnecessary and wanton infliction of pain in penal institutions.” Whitley, 475 U.S.

at 327. In contrast, the Fourteenth Amendment’s Due Process Clause, rather than the

Eighth Amendment’s Cruel and Unusual Punishments Clause, applies to a pretrial detainee

who “cannot be punished at all.” See Kingsley, 576 U.S. at 400. Each type of excessive-force

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claim also invites a different type of legal analysis—objective reasonableness versus

subjective intent. Compare Kingsley, 576 U.S. at 397, with Whitley, 475 U.S. at 320-21. In

light of these differences, the Supreme Court has held that “[t]he validity of [an excessiveforce] claim must [] be judged by reference to the specific constitutional standard which

governs that right, rather than to some generalized ‘excessive force’ standard.” Graham v.

Connor, 490 U.S. 386, 394 (1989).

Banks’s claim cannot survive in the face of this precedent distinguishing EighthAmendment excessive-force claims from Fourteenth Amendment excessive-force claims.

Banks was indisputably a convicted prisoner at the time of the alleged offense.4 But he

brought his claim of excessive force under the Fourteenth Amendment. Dkt. No. 1 ^j 116.

Therefore, as a matter of law, he fails to state a claim for which relief can be granted

“because the Fourteenth Amendment protects pretrial detainees, not convicted prisoners.”

See Waddleton v. Rodriguez, 750 F. App’x 248, 253 (5th Cir. 2018); see also Jenkins v. Ellis

Cray., Texas, No. 3:05-CV-1824-P, 2007 WL 9712115, at *3 (N.D. Tex. Dec. 19, 2007)

(Solis, J.) (finding that “even though both the Eighth Amendment and the due process

clause of the Fourteenth Amendment serve to protect the same constitutional right,” a

convicted prisoner had to bring his claim “under the more specific source of protection

rather than as a generalized substantive due process claim”); Ramirez ex rel. Ramirez v. Bexar

County, No. SA-10-CV-0296 FB NN, 2010 WL 5128642, at *1 (W.D. Tex. Dec. 9, 2010)

4 Banks’s complaint incorrectly states that he was a pretrial detainee at the time of the alleged

offense. Dkt. No. 1 ff 7, 140, 181. But the Court may consider “any judicially noticed facts” in

ruling on a judgment on the pleadings. Hale, 963 F.3d at 427. The Court therefore takes judicial

notice of the state-court record documenting Banks’s conviction on October 4, 2017 (Dkt. No. 521). See Basic Cap. Mgmt., Inc. v. Dynex Cap., Inc., 976 F.3d 585, 589 (5th Cir. 2020) (holding that a

district court properly took judicial notice of state-court records).

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Case l:19-cv-00217-H Document 76 Filed 12/12/22 Page 20 of 21 Page!D 1070

(Nowak, J.) (finding that “to the extent the [plaintiffs] complaint alleged a violation of the

Fourteenth Amendment, that claim should be dismissed” because the plaintiff “was

incarcerated pursuant to conviction” at the time of the offense).

In response to Spence’s motion for judgment on the pleadings,5 Banks contends that

his “pleadings should be construed liberally,” suggesting that this Court should construe his

complaint as having been brought under the Eighth Amendment despite its explicit

reference to the Fourteenth Amendment and the corresponding legal standard. See Dkt. No.

66 at 1-2. Although Fifth Circuit precedent has on occasion given a generic nod to a

“liberal” standard for reviewing complaints at this stage,6 it has done no more than that.

See Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001); Brittan Commc’ns Int’l Corp.

v. Sw. Bell Tel. Co., 313 F'3d 899, 904 (5th Cir. 2002); Great Plains Tr. Co. v. Morgan Stanley

Dean Witter & Co., 313 F.3d 305, 313 (5th Cir. 2002). Banks fails to cite any authority that

requires courts to replace a failed cause of action with a meritorious one, and the Court has

found no such authority. Without more, precedent clearly delineating the different types of

excessive-force claims precludes this Court from overlooking the legal deficiencies in

5 Notably, when Spence moved for judgment on the pleadings, Banks did not initially respond;

instead, he moved to amend his complaint. Dkt. No. 53. Banks only responded when ordered to

do so by the Court—well after the period prescribed by the Local Rules. See Dkt. Nos. 58; 66; see

also Loc. Civ. R. 7.1(e). Although not dispositive to the Court’s analysis, Banks’s resorting to a

motion to amend rather than responding to Spence’s arguments for dismissal suggests that he

recognizes the need for an amendment.

6 The vast majority of Fifth Circuit precedent that recites this “liberal” standard precedes the

Supreme Court’s holding in BellAtl. Corp. v. Twombly, 550 U.S. 544, 562-63 (2007) that imposed a

heightened pleading standard for the facts in a complaint. Logic therefore dictates that references

to a “liberal” standard of review derive from obsolete precedent instructing courts to liberally

construe a complaint’s facts. Even if that standard still applied, the most generous interpretation of

the facts in this case would not enable Banks’s complaint to survive dismissal—he still cannot work

around his undisputed prisoner status at the time of the alleged offense or his express reliance on

the Fourteenth Amendment.

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Banks’s complaint. Cf. Great Plains Tr. Co., 313 F.3d at 313 (stating that “judgment on the

pleadings is appropriate” when “only questions of law remain”).

It is undisputed that Banks was a convicted prisoner at the time of the alleged

offense; therefore, he fails to state a claim of excessive force under the Fourteenth

Amendment. Because Banks has not alleged a cognizable constitutional violation, the

Court grants Spence ’s motion for judgment on the pleadings.

Conclusion

While the disturbing facts alleged by Banks concern the Court, they cannot

materially affect its analysis of the question at issue. Spence has moved for judgment on the

pleadings under the theory that Banks failed to assert his claim of excessive force through

the proper legal framework. The Court—and even Banks—recognize that his complaint as

currently pled is legally deficient. Unfortunately, Banks’s counsel failed to exercise the

diligence necessary to identify this error sooner, so good cause does not justify permitting

Banks to amend his complaint to correct his mistake at this late juncture. For these reasons,

the Court denies Banks’s Motion to Amend Pleadings (Dkt. No. 53) and grants Spence’s

Motion for Judgment on the Pleadings (Dkt. No. 52).

Having resolved this case on the pleadings, the Court need not reach the merits of

Spence’s Motion for Summary Judgment (Dkt. No. 60); as such, that motion is denied as

moot. The parties’ Joint Motion for Continuance of Pretrial Deadlines and Trial (Dkt. No.

75) is also denied as moot.

So ordered on December 12, 2022.

$****£>

JAMES WESLEY HENDRIX

UNITED STATES DISTRICT JUDGE

21-

\ •

APPENDIX ■ B

Case: 22-11252

Document: 81

Page: 6

Date Filed: 07/10/2024

tHrnteb States Court of appeals

for tlje jftftlj Circuit

United States Court of Appeals

Fifth Circuit

No. 22-11252

FILED

June 26, 2024

Lyle W. Cayce

Clerk

Plaintiff—Appellant,

Holston Banks, III,

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.

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.

Appe^:>- - 6

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No. 22-11252

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 inapplica

ble 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) gov

erns 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

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 ofAla., 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 plead

ing the facts and allegations in the Third Amended Complaint.

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 to 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 Marablev. Department ofCommerce, 857 F. App’x 836 (5th

Cir. 2021) (per curiam), this court repeated the language of S&WEnterprises:

“Good cause generally requires a demonstration that ‘deadlines cannot rea

sonably 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 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)

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

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No. 22-11252

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-discretion review.

Moreover, though an explanation is necessary, not all explana

tions suffice. In S&WEnterprises,

[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 asserted 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 “adequate,” and an “adequate” explana

tion is something more than “inadvertence.” Id. In S&IVEnterprises, “inad

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

evant] 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. That “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 circumstances, it is not where the need to replead is based solely

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

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No. 22-11252

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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No. 22-11252

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 ofShelby, 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. HCl.COMj 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.

APPENDIX ■ C

Case: 22-11252

Document: 86-1

Page: 1

Date Filed: 08/20/2024

States Court ot Appeals;

for tfje Jftftl) 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 WITH

DRAWN, and the following is SUBSTITUTED:

5jc

si:

Jfc

s$:

Holston Banks appeals the denial of his untimely motion to amend.

Because he does not adequately explain his untimeliness, we affirm.

Banks sued John Spence in his individual capacity for use of excessive

Case: 22-11252

Document: 86-1

Page: 2

Date Filed: 08/20/2024

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 inapplica

ble 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) gov

erns 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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No. 22-11252

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 ofAla., 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 plead

ing the facts and allegations in the Third Amended Complaint.

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 to 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.

Likewise, in Marable v. Department ofCommerce, 857 F. App’x 836 (5th

Cir. 2021) (per curiam), this court repeated the language of S&WEnterprises:

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)

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

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“Good cause generally requires a demonstration that ‘deadlines cannot rea

sonably 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 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-discretion review.

Moreover, though an explanation is necessary, not all explana

tions suffice. In S&WEnterprises,

[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 asserted 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 “adequate,” and an “adequate” explana

tion is something more than “inadvertence.” Id. In S&WEnterprises, “inad

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

evant] 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 tanta

mount 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&WEnterprises stands for the principle that inadvertence is “tanta

mount to no explanation at all.” 315 F.3d at 536. Though, S&WEnterprises

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 re

sponse to [a] motion to dismiss,” 997 F.3d at 602, might be a sufficient ex

planation 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'& IF 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 ofShelby, 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 &

Engelj 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. HCl.COM, Inc., 77 F.4th 483,487