United States Court of Appeals

for the Fifth Circuit

No. 19-10138

Withberto Velazquez, 

Plaintiff—Appellant,

versus

United States of America, 

Defendant—Appellee.

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:18-CV-613

Before Barksdale, Elrod, and Ho, Circuit Judges.

Per Curiam:*

Withberto Velazquez, serving a federal prison sentence and 

proceeding pro se, was injured in his cell while responding to a fellow inmate’s 

request for assistance. Velazquez filed a claim under the Federal Tort Claims 

Act (FTCA) for his injuries. He challenges the Federal Rule of Civil 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 18, 2020

Lyle W. Cayce

Clerk

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Procedure 12(b)(1) dismissal of that claim for lack of subject-matter 

jurisdiction. AFFIRMED.

I.

The sworn amended complaint alleged the following facts, which, for 

purposes of reviewing the dismissal, are taken as true and viewed in the light 

most favorable to plaintiff. E.g., Truman v. United States, 26 F.3d 592, 594 

(5th Cir. 1994) (citations omitted). 

This action arises from an injury in Velazquez’ prison cell. At 

approximately 3:20 p.m. on 2 December 2016, a blind inmate (it is unknown 

whether he was in Velazquez’ cell) requested Velazquez’ assistance opening 

a locker, and he left his top bunk to do so. Because his bunk lacked a ladder 

by which he could descend, he used a plastic chair. While he was descending, 

the chair slipped; he lost his balance, fell, and hit his elbow against the wall, 

causing significant trauma to his shoulder. 

Velazquez’ cellmate witnessed the incident and notified prison 

medical personnel. The severity of his injury required Velazquez to have 

shoulder surgery. He still suffers arm and shoulder pain from the incident. 

Proceeding pro se, Velazquez filed a claim for money damages against 

the Government, based on liability under the FTCA, 28 U.S.C. § 1346(b). 

The sworn complaint described the other inmate’s request for help, and, 

unlike the sworn amended complaint, stated he “was assigned to 

[Velazquez’] care, in [his] job at the time as an Inmate Care Assistant”. 

(That position requires Velazquez to assist designated inmates in the prison, 

although the Government and Velazquez do not agree on the scope of that 

responsibility. For example, the Government asserts Velazquez was on the 

job at the time of his injury, but Velazquez claims “no records exist” to 

support that assertion.)

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In response to the FTCA claim, the Government moved to dismiss for 

lack of subject-matter jurisdiction. Its motion asserted: Velazquez was on 

the job when he responded to the inmate’s request for assistance; the Inmate 

Accident Compensation Act (IACA), 18 U.S.C. § 4126, is the exclusive 

remedy for on-the-job injuries in prisonwork programs; Velazquez’ exclusive 

remedy is through IACA and not the FTCA; and, because Velazquez instead

seeks relief under the FTCA, the court lacked subject-matter jurisdiction. 

The Government’s motion included a declaration by a correctional 

counselor at Velazquez’ prison, stating: at the time of his injury, Velazquez 

was assigned as a residential-care assistant, the same job Velazquez referred 

to as an inmate-care assistant. The counselor stated he knew of the incident 

and described Velazquez’ job duties: “Velazquez was provided a list of 

inmates to check on every hour to ensure they were not having any medical 

issues. Beyond this requirement to check on his assigned inmates, he was 

free to do as he wished during the rest of his work day”. The declaration did 

not include any other information regarding Velazquez’ job description, such 

as the time during which he was required to be on the job, or on call.

Faced with the Government’s motion to dismiss, Velazquez filed the 

above-referenced sworn amended complaint which, contrary to the sworn 

original complaint, as noted supra, omitted any information about: his fellow 

inmate’s being “assigned to [Velazquez’] care, in [his] job at the time as an 

Inmate Care Assistant”; and that inmate’s seeking assistance from 

Velazquez. On the other hand, Velazquez included an administrative tort 

claim form as an exhibit for both the sworn original and amended complaints; 

the form described the incident. Velazquez stated in the form that, at the 

time of the incident: “[The inmate] . . . who is blind, and is assigned to my 

care, in my job as an Inmate Care Assistant” asked for help. 

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As it had for the original complaint, the Government moved to dismiss 

for lack of subject-matter jurisdiction, again asserting: Velazquez’ claim was 

improper under the FTCA, and his exclusive remedy was under the IACA. 

The Government included the same declaration, stating that Velazquez was 

a prison employee at the time of the incident. 

Velazquez responded to the Government’s motion, stating the 

declaration was insufficient to show the court lacked subject-matter 

jurisdiction. Velazquez claimed: “At no point in the [declaration] does [the 

correctional counselor] state that the injury in question was work related”.

Velazquez further asserted the Government’s failure to file work-incident

related paperwork proved the incident did not occur on the job. 

The Government’s Rule 12(b)(1) motion to dismissfor lack of subjectmatter jurisdiction was granted. In doing so, the district court considered the 

difference in Velazquez’ sworn original and amended complaints regarding 

his being an inmate-care assistant. And, the court’s reasoning relied in part 

on the administrative tort claim form attached to both sworn complaints, 

including Velazquez’ description in that form of his assigned care of the blind 

prisoner. 

II.

A district court’s dismissal for lack of subject-matter jurisdiction is 

reviewed de novo. E.g., Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 

(5th Cir. 2016). Although plaintiff “constantly bears the burden” to prove 

jurisdiction exists, a Rule 12(b)(1) motion should be denied unless there is no 

set of facts under which plaintiff’s claim could entitle him to relief. Ramming 

v. United States, 281 F.3d 158, 161 (5th Cir. 2001); see Wagstaff v. U.S. Dep’t 

of Educ., 509 F.3d 661, 663 (5th Cir. 2007). 

In ruling on a motion to dismiss, the court, as noted, takes wellpleaded facts in a complaint as true; and, while a pro se litigant’s complaint is 

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given a “more lenient standard”, such litigants must plead enough factual 

allegations to go beyond a mere speculative claim. Chhim, 836 F.3d at 469 

(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Taylor v. 

Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002). Facts used to 

determine subject-matter jurisdiction may come from any of: the complaint; 

the complaint and undisputed record evidence; or the complaint, undisputed 

record evidence, and the court’s resolution of disputed facts. Ramming, 281 

F.3d at 161. When there are multiple complaints, the amended complaint 

supersedes the original, unless the amended complaint incorporates the 

original by reference or explicitly adopts it. King v. Dogan, 31 F.3d 344, 346 

(5th Cir. 1994). 

IACA provides “the sole remedy” when a prisoner is injured while on 

the job. Aston v. United States, 625 F.2d 1210, 1211 (5th Cir. 1980); see United 

States v. Demko, 385 U.S. 149, 151–52 (1966). The statute operates as 

worker’s compensation, and therefore supplants tort remedies for such 

prisoners. Demko, 385 U.S. at 151–52. Proximate-cause analysis determines 

whether an activity is work-related, and “the cause of the injury is irrelevant, 

so long as the injury occurred while the prisoner was on the job”. Aston, 625 

F.2d at 1211. Following Demko, courts have held prisoners to be on the job in 

other circumstances, including: riding an elevator to take a lunch break, 

Wooten v. United States, 437 F.2d 79, 80 (5th Cir. 1971); and, being exposed 

to asbestos at work, Smith v. United States, 561 F.3d 1090, 1093–95 (10th Cir. 

2009). In addition, derivative claims are precluded under the FTCA, so long 

as the original injury occurred while a party was on the job. See Thompson v. 

United States, 495 F.2d 192, 193 (5th Cir. 1974). 

As discussed, Velazquez’ administrative tort claim form was an 

exhibit to his sworn amended complaint (as it was to his sworn original 

complaint). That form indicates Velazquez left his bunk in response to a 

request for help from his blind, fellow inmate. But, the relationship between 

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Velazquez and that inmate was not merely friendly because, as stated in the 

form, that inmate was “assigned to [Velazquez’] care, in [his] job”. 

As also addressed infra, and based on the facts in Velazquez’ sworn 

amended complaint, which includes the attached administrative tort claim 

form, he does not provide the requisite facts to show he was not acting in his 

capacity as an inmate-care assistant at the time of his injury. Velazquez’ 

other papers, discussed supra, include assertions that the prison failed to 

complete required paperwork to affirmatively show the incident was workrelated and that his job responsibilities did not include helping the inmate in 

the unit. Velazquez, however, provides no evidence to counter the 

Government’s declaration. Instead, in his response to the Government’s 

motion to dismiss, he maintains he can prove he was not on the job by placing

the counselor who provided the declaration, “on the stand and placing him 

under oath”, inferring, at the very least, that he was lying. 

As noted, Velazquez receives a more lenient interpretation of his 

pleadings as a pro se litigant; but, still, he must show he was not on the job at 

the time of the incident. See Chhim, 836 F.3d at 469. Under that standard, 

he pleads a speculative claim; and, viewed against his statementsin, inter alia,

the administrative tort claim, he fails to rebut that he was not on the job, on 

call, or responding in his job capacity to the inmate’s request. 

In sum, and pursuant to our de novo review, Velazquez’ sworn 

amended complaint, the other parts of the record, and permissible inferences 

reflect that Velazquez attempted to assist the blind inmate because of 

Velazquez’ job. Put another way, because of the inmate’s request, Velazquez 

descended from his top bunk at that time, used the plastic chair to do so, 

slipped, and injured his shoulder. Our analysis under Aston asks whether the 

injury was proximately caused by the prisoner’s employment. In this 

instance, it was.

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III.

For the foregoing reasons, the judgment is AFFIRMED.

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