                                                              FILED
                                                  United States Court of Appeals
                   UNITED STATES COURT OF APPEALS         Tenth Circuit

                         FOR THE TENTH CIRCUIT                          July 28, 2020
                         _________________________________
                                                                 Christopher M. Wolpert
                                                                     Clerk of Court
    JOHN STEPHEN ROUTT,

         Plaintiff - Appellant,

    v.                                                  No. 19-5067
                                             (D.C. No. 4:18-CV-00439-JHP-JFJ)
    DUSTIN HANSFORD, JOSHUA                             (N.D. Okla.)
    LANKFORD, ARAMARK
    CORPORATION,

         Defendants - Appellees.
                        _________________________________

                          ORDER AND JUDGMENT *
                          _________________________________

Before HOLMES, KELLY, and BACHARACH, Circuit Judges.
                  _________________________________

         Without counsel, Mr. John Stephen Routt filed a civil rights

complaint with three causes of action. The district court concluded that one

cause of action stated a valid claim and the other two causes of action

didn’t. Even though one cause of action was admittedly valid, the court



*
      Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate briefs and the record
on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
ordered Mr. Routt to file a new complaint. He didn’t. But rather than

dismiss only the invalid causes of action, the court summarily dismissed

the entire action. We reverse.

I.    The district court dismissed the action despite a valid cause of
      action.

      In the complaint, Count I alleged that Dustin Hansford had used

excessive force. Count II alleged that Mr. Routt had been placed in

disciplinary isolation without due process. Count III alleged that he had

been served food unsuitable for human consumption.

      The district court concluded that

           Count I had stated a valid claim for excessive force and

           Counts II and III had failed to state a valid claim.

The court added that it would “permit” Mr. Routt to file an amended

complaint to cure the deficiencies in Counts II and III. R. at 28. But the

court cautioned Mr. Routt that

           any amended complaint would supersede the original
            complaint,

           Mr. Routt had to “reincorporate[] the Count I allegations in any
            amended complaint to preserve that claim,” and

           if he failed to timely amend or if the amended complaint again
            failed to state a valid claim, the court would dismiss the action.

Id. at 28-29.




                                      2
      Mr. Routt did not file an amended complaint, and the district court

dismissed the action for failure to prosecute and comply with orders. Id. at

31-32. This appeal followed. 1

II.   The district court erred in dismissing the entire action when one
      cause of action stated a valid claim.

      We review the eventual dismissal under the abuse-of-discretion

standard. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161

(10th Cir. 2007). The court abuses its discretion whenever it makes an

error of law. United States v. Fagan, 162 F.3d 1280, 1283 (10th Cir. 1998).

We conclude that the district court made an error of law.

      In his pro se brief, Mr. Routt explains that

           he “was worried about filing an amended complaint due to
            being under the threat by the District Court that all claims
            would be dismissed if an amended complaint failed to state a
            cognizable claim” and

           the notice led him to think “that the complaint would proceed
            on Count I without an amended complaint.”

Appellant’s Opening Br. at 2, 4. With this explanation, Mr. Routt argues

that (1) he should have been able to proceed with Count I and (2) the court

should not have threatened to dismiss the entire action for failure to cure

the pleading defect. Id. at 15. We agree with these arguments.



1
      After Mr. Routt filed his pro se appellate brief, newly appointed
counsel for Mr. Routt filed a supplemental opening brief. We consider both
the pro se brief and the supplemental brief.

                                      3
      In 1996, Congress required federal district courts to screen prisoner

suits for failure to state a valid claim. 28 U.S.C. §§ 1915(e)(2)(B)(ii),

1915A(b)(1); 42 U.S.C. § 1997e(c)(1). But what happens when the court

screens a prisoner suit and finds one cause of action valid and others

invalid? Dismissing the entire action would serve little purpose.

      Consider what happens when one cause of action is untimely and

another is timely. In this situation, the Supreme Court unanimously

commented that it had “never heard of an entire complaint being thrown

out,” perhaps because “it is hard to imagine what purpose such a rule

would serve.” Jones v. Bock, 549 U.S. 199, 220 (2007).

      The same is true when a court screens a prisoner suit for failure to

state a valid claim. If one cause of action is indisputably valid, it is hard to

imagine what purpose would be served by dismissing the entire action. So

      [a]s a general matter, if a complaint contains both good and bad
      claims, the court proceeds with the good and leaves the bad.
      “[O]nly the bad claims are dismissed; the complaint as a whole
      is not. If Congress meant to depart from this norm, we would
      expect some indication of that, and we find none.”

Id. at 221 (quoting Robinson v. Page, 170 F.3d 747, 748-49 (7th Cir.

1999)).

      We thus ask whether federal law shows an intent to depart from this

norm. We answer “no.”

      Federal law contains three provisions that require screening of

prisoner suits for failure to state a valid claim:

                                       4
      1.    28 U.S.C. § 1915A(b)(2), applicable when the prisoner plaintiff
            sues government officials,

      2.    42 U.S.C. § 1997e(c)(1), applicable when the cause of action
            involves prison conditions, and

      3.    28 U.S.C. § 1915(e)(2)(B)(ii), applicable when the prisoner
            obtains leave to proceed in forma pauperis.

All three circumstances apply here because Mr. Routt is suing government

officials, his causes of action involve prison conditions, and he obtained

leave to proceed in forma pauperis.

      Section 1915A(b)(2) suggests that the district court must consider

whether each cause of action states a valid claim. For example, § 1915A(b)

instructs the district court to “identify cognizable claims” and to dismiss

either the complaint “or any portion” of the complaint. 28 U.S.C.

§ 1915A(b). By requiring identification of cognizable claims and dismissal

of either the complaint “or any portion,” § 1915A(b) contemplates

dismissal of only the invalid causes of action.

      Section 1997e(c) refers to dismissal of both the “action” and “a

claim” that fails to state a valid claim. 42 U.S.C. § 1997e(c). The reference

to dismissal of “a claim” suggests a claim-by-claim approach. And the

Supreme Court has recognized that “statutory references to an ‘action’

have not typically been read to mean that every claim included in the

action must meet the pertinent requirement before the ‘action’ may




                                      5
proceed.” Jones v. Bock, 549 U.S. 199, 221 (2007). So § 1997e(c) also

contemplates dismissal of only the insufficient claims.

      Section 1915(e)(2)(B) states that the court shall dismiss “the case” if

the court determines that “the action” is frivolous or fails to state a valid

claim. 28 U.S.C. § 1915(e)(2)(B). But again, the Supreme Court has

recognized that use of the term “action” doesn’t generally mean that every

claim must meet the pertinent requirement before the action can proceed.

Jones, 549 U.S. at 221.

      Because federal law does not reflect an intent to deviate from normal

procedure, the district court should have “proceed[ed] with the good”

claim and dismissed “the bad” claims. Id.

      The district court first appeared to take this approach, identifying

one cause of action (Count I) as valid and two other causes of action

(Counts II and III) as invalid. But after identifying Count I as valid, the

district court didn’t permit Mr. Routt to confine his suit to Count I. The

court instead required Mr. Routt to file an amended complaint or face

dismissal of the entire action, including Count I.

      This requirement left Mr. Routt in a Catch 22. He might have lacked

a factual or legal basis to expand on his allegations in Counts II and III. If

he lacked a reasonable belief to expand on the allegations, compliance with

the district court’s order could have required him to violate Federal Rule

of Civil Procedure 11.

                                       6
      But let’s assume that Mr. Routt reasonably believed that he could

cure the defects in Counts II and III. What if the district court remained

unpersuaded? The court had promised to dismiss the entire action if

Mr. Routt failed to cure the defects in Counts II and III. Amending could

threaten Mr. Routt’s ability to pursue even Count I.

      The order not only thrust a dilemma on Mr. Routt but also exceeded

the district court’s authority. A district court can require the filing of an

amended complaint when the existing causes of action don’t state a valid

claim. But not when one cause of action is valid. In this situation, the court

could allow Mr. Routt to amend but couldn’t require an amendment. Given

the inability to require an amendment, the court couldn’t couple that

requirement with a threat to dismiss the entire action if Mr. Routt failed to

comply.

      Of course, Mr. Routt did fail to comply with the order when he didn’t

amend the complaint. But the court shouldn’t have required Mr. Routt to

amend. Mr. Routt’s failure to comply with an invalid order doesn’t

constitute a failure to prosecute the action or warrant punishment for

disobedience to a court order. See Wynder v. McMahon, 360 F.3d 73, 77-80

(2d Cir. 2004). The district court thus abused its discretion in ordering

dismissal of the entire action.




                                       7
III.   Disposition

       We reverse dismissal of the action and remand for further

proceedings. On remand, we instruct the district court to

           reinstate Count I and

           permit Mr. Routt, if he chooses, to amend the complaint
            (without threatening dismissal of the entire action). 2

IV.    Leave to Proceed in Forma Pauperis

       We also grant Mr. Routt’s motion to proceed on appeal without

prepayment of costs and fees.


                                      Entered for the Court


                                      Robert E. Bacharach
                                      Circuit Judge




2
     Given our disposition, we decline to consider Mr. Routt’s alternative
argument for reversal based on the validity of Counts II and III.
                                      8
