¶1 Harold M. Laird, Texas prisoner # 659512, appeals the dismissal of his 42 U.S.C. § 1983 suit without prejudice for failure to exhaust administrative remedies. Laird argues in pertinent part that the magistrate judge erred in sua sponte dismissing his suit (l)prior to service on the defendants and (2) in toto.
¶2 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, — U.S. -, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (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.
¶3 VACATED AND REMANDED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.