         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                  Fifth Circuit
                                                                F I L E D
                               No. 06-41519
                             Summary Calendar                  September 18, 2007

                                                           Charles R. Fulbruge III
HAROLD M. LAIRD                                                    Clerk

                                         Plaintiff-Appellant

v.

CLIFTON MATTOX, Individually and in his official capacity as Captain of
Security; KEVIN POWELL, Individually and in his official capacity as Captain
of Security; VIRGIL BASS, Individually and in his official capacity as
Correctional Officer 4; RUSSELL WALTON, Individually and in his official
capacity as Correctional Officer 4; MARCUS GLENN, Individually and in his
official capacity as Correctional Officer 4; HENRY BOYKIN, III, Individually
and in his official capacity as Lieutenant of Security; UNIDENTIFIED COOK,
Individually and in his official capacity as Investigator; FRANK V. HELM,
Individually and in his official capacity as Major of Security

                                         Defendants-Appellees


                Appeal from the United States District Court
                     for the Eastern District of Texas
                          USDC No. 9:05-CV-200


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
     Harold M. Laird, Texas prisoner # 659512, appeals the dismissal of his 42
U.S.C. § 1983 suit without prejudice for failure to exhaust administrative


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                 No. 06-41519

remedies. Laird argues in pertinent part that the magistrate judge erred in sua
sponte dismissing his suit (1)prior to service on the defendants and (2) in toto.
      The Supreme Court has recently held “that failure to exhaust is an
affirmative defense under the [Prison Litigation Reform Act], and that inmates
are not required to specially plead or demonstrate exhaustion in their
complaints.” Jones v. Bock, 127 S. Ct. 910, 921 (2007). As this action was
dismissed prior to service on the defendants, and the complaint is silent as to
exhaustion on some of the claims, Jones dictates that the magistrate judge erred
by sua sponte dismissing the complaint based on its determination that Laird
had not exhausted administrative remedies. Id. at 921. Additionally Jones held
that an inmate’s compliance with the exhaustion requirement as to some, but
not all, claims contained in his complaint does not warrant dismissal of the
action in toto. Id. at 924-26. Because vacation of the judgment is mandated on
these bases alone, we do not reach the remainder of Laird’s appellate issues.
      VACATED AND REMANDED; MOTION FOR APPOINTMENT OF
COUNSEL DENIED.




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