Laird vs. Mattox, (5th Cir. 2007)

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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 42U.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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 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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