Summary Calendar HAROLD M. LAIRD v. CLIFTON MATTOX, Individually

* 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should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
F I L E D
September 18, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41519
Summary Calendar
HAROLD M. LAIRD
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

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No. 06-41519
2
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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