BLD-108 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-2448

___________

LARRY SERRANO-GOMEZ,

 Appellant

v.

HOUTZDALE CORRECTION FACILITY

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 3-15-cv-00006)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

January 14, 2016

Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges

(Opinion filed: January 21, 2016)

_________

OPINION*

_________

PER CURIAM

Larry Serrano-Gomez appeals from the District Court’s order dismissing his 

complaint. We will affirm.

 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Serrano-Gomez is a Pennsylvania state prisoner who at all relevant time was 

incarcerated at SCI-Houtzdale. He filed a two-page complaint against the facility and 

alleged that various corrections officers violated his constitutional rights. His claims 

were largely conclusory and he did not allege any specific conduct by any specific 

officer, but his primary complaint appeared to be that officers “tortured” him by placing 

him in protective custody on the basis of a threat from another inmate without informing 

him which inmate had threatened him. A Magistrate Judge screened the complaint 

pursuant to 28 U.S.C. § 1915A and directed Serrano-Gomez to file an amended 

complaint alleging specific conduct on the part of specific officers.

Serrano-Gomez responded by filing three one-page “statements” on prison 

grievance forms, one by him and two by other inmates. These statements did not 

supplement his original claims in any meaningful way. Instead, they raised a new claim 

based on an alleged incident in which officers allegedly tazered Serrano-Gomez several 

times even though he was already restrained by handcuffs and what he calls a “leash.” 

Serrano-Gomez alleged that this incident occurred on January 5, 2015, and he dated his 

statement January 10, 2015. The District Court docketed these statements as an amended 

complaint on January 15, 2015.

The Magistrate Judge recommended dismissing it. With respect to SerranoGomez’s new claim, the Magistrate Judge noted that it was subject to the exhaustion 

requirement of the Prison Litigation Reform Act (“PLRA”) and concluded that 

administrative exhaustion “could not possibly have been completed” in the ten days 

between the alleged incident and the docketing of the amended complaint. The District 
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Court agreed and dismissed the amended complaint without prejudice to SerranoGomez’s ability to file a complaint regarding the January 5 incident after exhausting his 

administrative remedies. Serrano-Gomez appeals pro se.

1

Having reviewed Serrano-Gomez’s filings, we agree that he failed to state a claim 

based on his initial allegations and that his amended complaint raised nothing suggesting 

that he could do so if given another opportunity to amend. We also agree that SerranoGomez’s new claim was subject to dismissal for failure to exhaust. 

Under the PLRA, the exhaustion of administrative remedies is a mandatory 

prerequisite to filing suit. See 42 U.S.C. § 1997e(a); Spruill v. Gillis, 372 F.3d 218, 227 

(3d Cir. 2004). Ordinarily, we might not sanction a District Court’s assumption at the 

pleading stage that an inmate failed to exhaust. In this case, however, that is the only 

reasonable inference to be drawn from Serrano-Gomez’s amended complaint. As the 

Magistrate Judge noted, the exhaustion of administrative remedies by Pennsylvania 

inmates entails a three-tier administrative review process. See Commonwealth of 

Pennsylvania Dep’t of Corr. Policy Statement No. DC-ADM 804 (2015). The 

Commonwealth’s policy permits a total of up to 90 days for review of an inmate’s 

grievance and appeals, and that time does not include the time it takes for the inmate to 

 1 We have jurisdiction pursuant to 28 U.S.C. § 1291. Technically speaking, failure to 

exhaust is not a ground to dismiss a complaint before service of process pursuant to § 

1915(e)(2)(B) or § 1915A. See Ray v. Kertes, 285 F.3d 287, 296 & n.10 (3d Cir. 2002). 

Nevertheless, District Courts retain the “inherent power to dismiss sua sponte a complaint 

which facially violates a bar to suit,” including exhaustion under the PLRA. Id. at 293 n. 

5. Our review of the dismissal of a complaint is plenary. See Allah v. Seiverling, 229 

F.3d 220, 223 (3d Cir. 2000).
4

submit them. See id. §§ 1(C)(5)(g), 2(A)(2)(d), 2(B)(2)(a). Moreover, administrative 

review culminates in review by the Department of Corrections’ central office, and both 

an inmate’s appeal to that office and that office’s response are by mail. See id. §§ 

2(B)(1)(i), 2(B)(2)(d). Thus, it is highly implausible that an inmate could complete this 

process within ten calendar days. 

Even if it were theoretically possible to do so, Serrano-Gomez has raised nothing 

suggesting that he did. Serrano-Gomez’s filings reveal that he is familiar with the 

grievance process. Serrano-Gomez, however, did not object to the Magistrate Judge’s 

recommendation. Nor has he contested the Magistrate Judge’s analysis or claimed to 

have exhausted his administrative remedies as to this claim in any document that he has 

since filed with the District Court or with this one. Under these circumstances, we see no 

basis to disturb the District Court’s dismissal of Serrano-Gomez’s amended complaint for 

failure to exhaust.

We emphasize that the District Court’s dismissal was without prejudice to 

Serrano-Gomez’s ability to file a complaint based on the January 5 incident after 

exhausting his administrative remedies. Although we express no opinion on the merits of 

Serrano-Gomez’s claims in that regard, we further emphasize that they are not to be taken 

lightly. 

One final issue requires discussion. Serrano-Gomez appears to argue in his notice 

of appeal that the District Court erred in taking action on his amended complaint in the 

absence of appointment of counsel. District Courts have the discretion to request counsel 

for indigent litigants. See generally Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993). District 
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Courts generally are not required to consider doing so sua sponte, however, and SerranoGomez did not file anything with the District Court that could be construed as a motion 

for counsel. If Serrano-Gomez files a complaint in the future, and if he wants to be 

represented by counsel in that proceeding, then he should file a motion for appointment 

of counsel with the District Court. We express no opinion on whether appointment of 

counsel might be warranted.

For these reasons, we will affirm the judgment of the District Court.2

 2 Serrano-Gomez did not file a response with this Court after the Clerk notified him that 

this appeal would be considered for possible summary action or dismissal under 28 

U.S.C. § 1915(e)(2)(B). He later filed a document with the District Court titled 

“argument,” however, and we have considered that filing in reaching our decision.