BLD-108                                                          NOT PRECEDENTIAL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.
       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 Serrano-

Gomez’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

                                              2
Court agreed and dismissed the amended complaint without prejudice to Serrano-

Gomez’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 Serrano-

Gomez’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


1We 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).

                                             3
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

                                             4
Courts generally are not required to consider doing so sua sponte, however, and Serrano-

Gomez 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.
                                             5
