UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JOHN STEPHEN ROUTT, 

 Plaintiff - Appellant, 

v. 

DUSTIN HANSFORD, JOSHUA 

LANKFORD, ARAMARK 

CORPORATION, 

 Defendants - Appellees. 

No. 19-5067 

(D.C. No. 4:18-CV-00439-JHP-JFJ) 

(N.D. Okla.) 

_________________________________ 

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). 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 28, 2020

Christopher M. Wolpert 

Clerk of Court
2 

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. 
3 

 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. 
4 

 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: 
5 

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 
6 

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. 
7 

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. 
8 

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.