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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

LUIS RAY JARAMILLO, JR., #1966673 §

VS. § CIVIL ACTION NO. 6:23cv050

MICHAEL A. COLLUM, ET AL. §

REPORT AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Luis Ray Jaramillo, a prisoner currently confined at the Beto Unit within the Texas 

Department of Criminal Justice (TDCJ) proceeding pro se and seeking in forma pauperis status, 

filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983 alleging purported violations of his 

constitutional rights. The case was referred to the undersigned United States Magistrate Judge for 

findings of fact, conclusions of law, and recommendations for the disposition of the case. 

On January 27, 2023, this Court severed Jaramillo’s claims that sound in civil rights into 

this cause of action, (Dkt. #3), and ordered him to file an amended complaint on those claims. The 

Court further recognized that Jaramillo received at least three strikes under 28 U.S.C. 1915(g) and 

ordered him to either submit the statutory filing fee of $402.00 or articulate a plausible showing 

of imminent danger of physical injury related to the allegations in his complaint, (Dkt. #3). 

Plaintiff’s amended complaint, (Dkt. #8), is now before the Court. 

For reasons explained below, the Court recommends that Plaintiff’s lawsuit be dismissed, 

with prejudice, for purposes of proceeding in forma pauperis. The Court further recommends that 

his motion for in forma pauperis status, (Dkt. #9), be denied. 

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I. Plaintiff’s Amended Complaint

Jaramillo’s amended complaint is the operative pleading in this case. An amended 

complaint entirely supersedes and takes the place of the original complaint. See Clark v. Tarrant 

Cnty., Tex., 798 F.2d 736 (5th Cir. 1986). He is suing several Defendants, many of whom are 

located outside of this Court’s jurisdiction; a separate order severing and transferring those claims 

and Defendants will issue. 

Jaramillo’s case before this Court concerns claims and Defendants related to his 

imprisonment at the Beto Unit. He states that on April 22, 2022, he arrived at the Beto Unit and 

began to inquire about the address for his post-parole facility, (Dkt. #8, pg. 8). Defendant Wilcoxon

deliberately delayed a reply. Jaramillo asserts that once he was finally “seen for reentry out 

processing,” Defendant Wilcoxon commented that there was a delay in release to Houston because 

“there were too many sex offenders in Houston.” Id. He insists that this was “a lie,” and that 

Defendant Wilcoxon was assisting Defendant Collum, Warden, to unjustly withdraw his parole. 

According to Jaramillo, Defendant Collum “went to the extreme to transmit Palestine-IPO 

false and/or misleading information to the Parole Board to have his parole-vote for release 

withdrawn”—even after he completed a sex offender program. Defendant Collum and prison 

officials at his previous prison, the Bill Clements Unit, learned of his relocation at the Beto Unit 

“because they couldn’t assault and/or kill him in time.” Id. Collum began influencing officials at 

the Beto Unit to begin harassing him and placing him in situations wherein he could “get in 

trouble.” 

His parole was revoked based on “false information,” (Dkt. #3, pg. 8), on May 16, 2022. 

Jaramillo then sent, through the Beto Unit’s mail system, an appeal of the decision. However, the 

appeal was never delivered. The “appeal materialized” on August 9, 2022, and Jaramillo explains 

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that he was told that his appeal simply sat on Defendant Mitchell’s desk. He insists that he believes 

the appeal was never mailed and that Defendant Collum sabotaged his appeal.

Jaramillo further maintains that on November 7, 2022, in retaliation for reporting 

harassment, a prison official issued a “falsified” disciplinary procedure against him for sexual 

misconduct while housed at the Beto Unit because he submitted prison grievances, (Dkt. #3, pg. 

9). He claims that he was denied due process at his disciplinary hearing, and that it is “customary 

practice” of the Beto Unit to manipulate the grievance system. Id. Jaramillo contends that this 

“customary practice” related to prisoner grievances is a “real and proximate threat.” Id. Defendant 

Collum and other prison officials also deliberately “cause fights,” impose lockdowns, falsify 

disciplinary cases, and suspend activities as harassment. 

He explains that he was assaulted by an officer on March 7, 2023, but the Office of 

Inspector General (OIG) has “yet to file any charges.” Id. at pg. 10. Jaramillo explains that he fears 

for his safety, his health, and his life due to “ongoing harassment and retaliation” as well as the 

mistreatment bestowed on him by Defendant Collum. He concedes that he is subject to the threestrikes provision—and argues that the threat of serious physical injury is real and that “time is 

pressing.” Id. at pg. 11. He seeks a Court order to “stop ongoing inhumane conditions of 

confinement.” Id. 

II. Discussion and Analysis

Plaintiff Jaramillo is no stranger to federal courts in Texas. Court records show that 

Jaramillo has filed at least three previous lawsuits or appeals which were dismissed as frivolous or 

for the failure to state a claim upon which relief can be granted—prior to his filing this lawsuit in 

January 2023. See Jaramillo v. Pace, civil action no. 6:22cv256 (E.D. Tex. Aug. 22, 2022) 

(outlining Plaintiff’s accumulation of three strikes). 

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Title 28 U.S.C. § 1915(g), added by Act of Congress on April 26, 1996, as part of the 

Prison Litigation Reform Act, provides the following:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or 

proceeding under this section if the prisoner has, on three or more prior occasions, while 

incarcerated or detained in any facility, brought an action or appeal in a court of the United 

States that was dismissed on the ground that it is frivolous, malicious, or fails to state a 

claim upon which relief can be granted, unless the prisoner is under imminent danger of 

serious physical injury.

As set forth above, Jaramillo has accumulated three strikes prior to filing this January 2023

lawsuit and, thus, falls under the Act. Consequently, he cannot proceed under the in forma pauperis

statute unless he shows that he is in imminent danger of serious physical injury as of the date of 

the filing of the lawsuit. See Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998). The Court notes 

that Jaramillo readily admits that he has accumulated three strikes. 

To meet the imminent danger requirement of section 1915(g), the threat must be “real and 

proximate.” See Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003). Allegations of past harm 

do not suffice; instead, the harm must be imminent or occurring at the time that the complaint or 

notice of appeal is filed—and the exception refers to “a genuine emergency” in which “time is 

pressing.” See Heimerman v. Litscher, 337 F.3d 781, 782 (7th Cir. 2003); see also Abdul-Akbar 

v. McKelvie, 239 F.3d 307, 313 (5th Cir. 2001) (“Someone whose danger has passed cannot be 

reasonably be described as someone who ‘is’ in danger, nor can that past danger reasonably be 

described as ‘imminent.’”); Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (“Congress’ 

use of the present tense in § 1915(g) confirms that a prisoner’s allegation that he faced imminent 

danger sometime in the past is an insufficient basis to allow him to proceed in forma pauperis....”). 

Crucially, the burden is on Jaramillo to show that he is in imminent danger of serious 

physical injury at the time of the filing of his complaint through facts rather than conclusory 

allegations. See Newman v. Harris, 770 F. App’x 216 (5th Cir. 2019) (emphasis supplied). 

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Here, Jaramillo asserts that he is in imminent danger due to ongoing harassment, 

retaliation, and conditions of his confinement. His specific claims—falsification of disciplinary 

records, deliberate fights initiated by prison officials, lockdowns, suspension of activities, the 

“customary practice” of thwarting prison grievances, and allegedly influencing prison officials to 

revoke his parole—do not illustrate imminent danger of serious physical injury. 

Similarly, while Jaramillo explains that he was “assaulted” by a prison official in 

November 2022, such constitutes past danger. See, e.g., Banos, 144 F.3d at 884-85 (5th Cir. 1998) 

(explaining that allegations that prison officials sexually harassed the plaintiff by conducting body 

cavity searches before he filed his complaint did not suffice); see also King v. Livingston, 212 F. 

App’x 260, 262 (5th Cir. 2006) (unpublished) (“King argues that he is in imminent danger of 

serious physical injury because he has been assaulted several times by the defendants and other 

inmates and because the defendants have attempted to cause him serious physical injury from the 

time of Hurricane Rita to the present. King fails to meet the showing required to avoid application 

of the three strikes bar under 28 U.S.C. § 1915(g).”). Jaramillo has not presented any facts 

suggesting imminent danger of serious physical injury, which is his burden. 

To the extent that Jaramillo insists that harassment and retaliation is ongoing and will 

continue, such fear of future “threats” is conclusory. See Newman, 770 F. App’x 216 (explaining 

that Newman’s allegation that he is in ongoing imminent danger is conclusory.). Additionally, the 

United States Court of Appeal for the Fifth Circuit has held that “mere threatening language and 

gestures” if a custodial officer do not, even if true, amount to a constitutional violation. See Bender 

v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993).

Because Jaramillo has accumulated at least three-strikes prior to the filing of this lawsuit 

and has not demonstrated that he faces an imminent threat of serious physical injury, his motion 

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to proceed in forma pauperis should be denied and this lawsuit should be dismissed pursuant to 

28 U.S.C. §1915(g). However, Jaramillo should be allowed a reasonable period of time in which 

to pay the full filing fee and proceed with his lawsuit should he so choose. He should note that the 

payment of the filing fee would not affect a frivolous analysis under 28 U.S.C. §1915A. 

RECOMMENDATION

Accordingly, it is recommended that Plaintiff Jaramillo’s motion to proceed in 

forma pauperis (Dkt. #9), should be denied and the above-styled lawsuit should be 

dismissed, with prejudice, for purposes of proceeding in forma pauperis pursuant to 28 U.S.C. § 

1915(g). It is also recommended that if Plaintiff pays the full filing fee within fifteen (15) 

days of the date of the dismissal order, the lawsuit will proceed as though the full filing fee had 

been paid from the outset. 

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may 

serve and file written objections to the findings and recommendations contained in the Report. 

A party’s failure to file written objections to the findings, conclusions and 

recommendations contained in this Report within fourteen days after being served with a 

copy shall bar that party from de novo review by the district judge of those findings, conclusions 

and recommendations and, except on grounds of plain error, from appellate review of 

unobjected-to factual findings and legal conclusions accepted and adopted by the district 

court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), 

superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file 

objections from ten to fourteen days). 

So ORDERED and SIGNED this 6th day of April, 2023.

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