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:
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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
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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.
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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.
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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