UNITED STATES CO URT 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 f iled 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 adm ittedly valid, the court

* Oral argument would not ma terially help us to d ecide 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 co nstitute binding pr ecedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgmen t may be cited for its persuasi ve 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 Court2 ordered Mr. Routt to file a new comp laint. 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, Coun t I alleged that Dustin Hansford had used excessive force. Count II alleged that Mr. Routt had been placed in disciplinary isolation wi thout due process. Count III alleged that he had been served food unsuitable for hu man consumption. The district court concluded that

 Count I had stated a valid cl aim 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 alle gations in any amended complaint to pres erve that claim,” and

 if he failed to time ly 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 ap peal followed. 1 II. The district court erred in dism issing the entire action when one cause of action stated a valid claim. We review the eventual dismissa l under the abuse-of-discretion standard. Nasious v. Two Unk nown 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 Di strict Court that all claims would be dismissed if an amended complaint failed to state a cognizable claim” and

 the notice led him to think “tha t the complaint would proceed on Count I wit hout an amended complaint.” Appellant’s Opening Br. at 2, 4. With this explan ation, Mr. Routt argues that (1) he should ha ve been able to proceed wi th Count I and (2) the court should not have th reatened to dismiss the entir e action for failure to cure the pleading defect. Id . at 15. We agree wi th these arguments.

1 After Mr. Routt filed his pro se appellate brief, newly appointed counsel for Mr. Routt filed a supplemental opening br ief. We consider both the pro se brief and th e supplemental brief.4 In 1996, Congress required federal di strict courts to screen prisoner suits for failure to stat e a valid claim. 28 U. S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); 42 U.S.C. § 1997e(c)(1). But what ha ppens when the court screens a prisoner suit an d finds one cause of action valid and others invalid? Dismissing the entire action would se rve little purpose. Consider what happen s when one caus e 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 wh at purpose such a rule would serve.” Jones v. Bock , 549 U.S. 199, 220 (2007). The same is true when a court screens a prison er suit for failure to state a valid claim. If one ca use of action is indisputably valid, it is hard to imagine what purpose would be served by dismissing the en tire action. So [a]s a general matter, if a comp laint contains both good and bad claims, the court proc eeds with the good a nd leaves the bad. “[O]nly the bad cl aims 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 provis ions that requir e 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 ap ply here because Mr. Ro utt is suing government officials, his causes of action involv e prison conditions, and he obtained leave to proceed in forma pauperis. Section 1915A(b)(2) suggests that th e district court must consider whether each cause of act ion states a valid claim. For example, § 1915A(b) instructs the district cour t to “identify cognizable claims” and to dismiss either the complaint “or any porti on” of the complaint. 28 U.S.C. § 1915A(b). By requiring id entification of cognizable claims and dismissal of either the compla int “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 clai m. 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 “sta tutory references to an ‘action’ have not typically been read to mean that every claim included in the action must meet the pertinent requ irement before the ‘action’ may6 proceed.” Jones v. Bock , 549 U.S. 199, 221 (2007). So § 1997e(c) also contemplates dismissal of on ly 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 fail s to state a valid claim. 28 U.S.C. § 1915(e)(2)(B). But again, the Su preme Court has recognized that use of the term “acti on” doesn’t generall y mean that every claim must meet the pertinent requir ement 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[e d] with the good” claim and dismissed “the bad” claims. Id. The district court first appeared to take this appr oach, identifying one cause of action (Coun t I) as valid and two other causes of action (Counts II and III) as invalid. But af ter identifying Coun t 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 am ended 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 viol ate 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 distri ct court remained unpersuaded? The court had promised to dismiss the entire action if Mr. Routt failed to cure the defects in C ounts II and III. Amending could threaten Mr. Routt’s ability to pursue even Count I. The order not only thrust a dilemma on Mr. Ro utt but also exceeded the district court’s authority. A distri ct 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 situat ion, the court could allow Mr. Routt to amend but couldn’t require an amendment. Given the inability to require an amendm ent, 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 s houldn’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 discre tion 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 c hooses, to amend the complaint (without threatening dismissa l of the entire action). 2 IV. Leave to Procee d in Forma Pauperis We also grant Mr. Routt’s moti on 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 ba sed on the validity of Counts II and III.