Summary Calendar BEVERLY DARK v. JOHN E. POTTER, Postmaster General

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40975
Summary Calendar
BEVERLY DARK,
Plaintiff–Appellant,
v.
JOHN E. POTTER, Postmaster General,
Defendant–Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:05-CV-293
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Beverly Dark sued the United States Postal Service (USPS) and alleged
discrimination based on “physical disabilities.” The USPS moved to dismiss
Dark’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and the
district court granted the motion. Dark now appeals, and we affirm.
United States Court of Appeals
Fifth Circuit
F I L E D
August 26, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40975
1 29 U.S.C. § 791 et seq.
2
I
In 2004, the USPS terminated Dark from her position as a clerk after she
made a telephone call to Congressman Jim Turner’s office and threatened to “kill
everyone in the Post Office,” “shoot them all,” and “get a gun and shoot postal
employees.” She does not dispute that she made these threats. In 2005, Dark,
proceeding pro se, sued John E. Potter, Postmaster General of the USPS,
purportedly pursuant to Title VII of the Civil Rights Act of 1964 although she
alleged discrimination because of her physical disabilities. The district court and
the USPS have assumed correctly that Dark’s complaint asserts violations of the
Rehabilitation Act of 1973.1
Before filing her complaint, Dark initiated a series of administrative
proceedings, including two ultimately consolidated EEOC proceedings, in which
she alleged discrimination based upon her race and physical disability. The
EEOC determined no discrimination occurred, but nonetheless concluded that
the USPS should pay $20,000 for failure to accommodate. The USPS
implemented the order but disagreed with its findings. Dark appealed the
EEOC order and contended the damages were insufficient; that appeal was
dismissed when she filed this civil action. Next, Dark filed a grievance against
the USPS under its Collective Bargaining Agreement (CBA), alleging her
termination was due to discrimination, not her threatening remarks. The
arbitrator upheld her termination and found the threats provided just cause for
the USPS to remove her. Finally, she appealed her removal to the Merit
Systems Protection Board (MSPB). She filed her initial appeal while the CBA
grievance was pending resulting in the dismissal of the MSPB appeal. She
refiled after the CBA arbitration decision was issued, but that appeal too was

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No. 07-40975
2 Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002).
3 Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007).
3
dismissed based on collateral estoppel since the arbitration award was final and
binding. She then initiated this action in federal court.
Her complaint alleged that the USPS had discriminated against her
because of her physical disabilities, specifically in failing to employ her,
terminating her, and failing to accommodate her medical restrictions. Her
complaint alleged no other facts. Dark attached to the complaint the MSPB’s
decision and a 2004 Notice of Final Action by the USPS rejecting her claim of
disability but implementing the EEOC’s recommendation that Dark receive
$20,000.
The USPS moved to dismiss Dark’s complaint or, alternatively, for
summary judgment. Responding to USPS’s motion, Dark abandoned her
termination claim and admitted making the threats; instead she asserted that
“[f]rom 2002 to August 2004, plaintiff was not offered a suitable job within
physicians [sic] medical restrictions.” The district court granted the USPS
motion and dismissed the complaint for failing to allege facts that, if proven,
would show Dark was an individual with a disability. Dark now appeals the
dismissal.
II
We review de novo a district court’s grant of a motion to dismiss under
Federal Rule Civil Procedure 12(b)(6),2 and we accept as true the complaint’s
well-pleaded factual allegations.3 These factual allegations need not be detailed,
but they must, when assumed to be true, “raise a right to relief above the

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No. 07-40975
4 Id. (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007)).
5 Id. (quoting Twombly, 127 S.Ct. at 1966).
6 Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981).
7 Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (citing Moawad v. Childs, 673
F.2d 850, 851-52 (5th Cir. 1982)).
8 Id.
9 See Morrison v. City of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985) (“[T]he
plaintiffs in this case have been apprised of the insufficiency of their conclusory allegations
against [defendant] and have been afforded an opportunity to plead facts that would overcome
the bar of Imbler immunity. We can assume, therefore, that the specific allegations of the
amended complaint constitute the plaintiffs’ best case . . . .”).
10 Bazrowx, 136 F.3d at 1054; see also Pena v. United States, 157 F.3d 984, 987 (5th Cir.
1998) (holding that the district court erred when it dismissed as moot plaintiff’s action without
providing plaintiff an opportunity to amend his pleadings).
11 Jacquez v. Procunier, 801 F.2d 789, 790 (5th Cir. 1986).
4
speculative level.”4 A deficient claim “should . . . be exposed at the point of
minimum expenditure of time and money by the parties and the court.”5
We, of course, hold pro se complaints to lower standards than the formal
pleadings lawyers draft.6 In fact, a district court generally errs if it dismisses a
pro se complaint for failure to state a claim under Rule 12(b)(6) without first
giving the plaintiff an opportunity to amend.7 Such potential error is greatly
ameliorated if the plaintiff has clearly alleged its best case.8
While a precise definition of a plaintiff’s “best case” is elusive, this court
often assumes a plaintiff asserts its best case after the plaintiff is “apprised of
the insufficiency” of the complaint.9 This explains our rule that Rule 12(b)(6)
dismissals of pro se complaints without opportunity to amend generally
constitute error.10 The opportunity to amend, however, is not a strict predicate
to dismissing pro se complaints. In Jacquez v. Procunier, two prisoners
murdered their fellow inmate, Rafael Jacquez, prompting the administrator for
Jacquez’s estate to sue various prison guards.11 The pro se complaint included

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No. 07-40975
12 Id. (alleging “a pattern of conduct by prison guards [and inmates] at the Texas
Department of Corrections” and that prison officials “knew of this misconduct, malfeasance,
acts and/or omissions . . . and did nothing to stop it or in fact, condoned said misconduct,
malfeasance, acts and/or omissions” and that the defendants acted “willfully, knowingly,
purposely and maliciously”).
13 Id. at 791.
14 Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007) (“We could go on, but there
is no need to pile up further citations to show that Conley’s ‘no set of facts’ language has been
questioned, criticized, and explained away long enough. . . . The phrase is best forgotten as an
incomplete, negative gloss on an accepted pleading standard . . . .”).
15 Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (holding that a case will not be dismissed
“unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief”).
16 Jacquez, 801 F.2d at 792.
17 Id.
18 Id. at 793.
19 Id.
5
ambiguous allegations with few facts.12 The prison guards moved for dismissal
per Rule 12(b)(6), arguing that the facts did not support a cause of action against
public officials claiming qualified immunity; the motion was denied and,
thereafter, appealed.13 Citing the lenient, but now discredited14 Conley
standard,15 we held that the pleadings failed to allege a claim.16 While plaintiff
had not filed a supplemental complaint, his extensive response to the motion had
provided him ample opportunity to state his best case—opportunity he did not
use since the response repeated verbatim sections of the complaint.17 Moreover,
we specifically rejected plaintiff’s argument that dismissal at this stage was
improper because he was not given fair notice or opportunity to amend.18 We
noted that his response to the motion to dismiss declared the adequacy of his
complaint and, alternatively, that the response remedied any inadequacies.19
We concluded he had pleaded his best case.

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No. 07-40975
20 Covington v. Cole, 528 F.2d 1365, 1370 (5th Cir. 1976).
21 See, e.g., Pena v. United States, 157 F.3d 984, 987 (5th Cir. 1998) (finding a potential
Bivens action when prisoner had filed a motion under Fed. R. Crim. P. 41(e)).
22 Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007) (“The Rehabilitation Act, not the
Americans with Disabilities Act (ADA), constitutes the exclusive remedy for a federal employee
alleging disability-based discrimination.” (citations omitted)).
23 29 U.S.C. § 794(d).
6
In the instant case, the record does not indicate that Dark amended her
complaint, but, like the plaintiff in Jacquez, she filed a lengthy response to the
USPS’s motion to dismiss. She also filed a “motion for speedy judgment.” Like
Jacquez and Morrison, we believe Dark was fully apprised of her complaint’s
potential insufficiency and given opportunity to correct any insufficiencies.
Nonetheless, in her responses she stated “[a]ll has been done correctly” before
imploring the district court to rule speedily. Thus, like Jacquez, we assume that
Dark has alleged her best case. We now answer whether that best case
sufficiently states a claim.
Our inquiry is narrower than usual. Usually, we examine “whether within
the universe of theoretically provable facts there exists a set which can support
a cause of action under this complaint indulgently read.”20 Often we find a cause
of action hidden among the facts different than the theory the plaintiff asserts.21
In this case, we must only examine whether the facts state a claim under the
Rehabilitation Act, which constitutes the exclusive remedy for a federal
employee alleging disability-based discrimination.22
The Rehabilitation Act states that “[n]o otherwise qualified individual with
a disability in the United States . . . shall, solely by reason of her or his
disability, be . . . subjected to discrimination under any program or activity
receiving Federal financial assistance . . . or activity conducted by the United
States Postal Service.”23 Relief under the Rehabilitation Act requires Dark to

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No. 07-40975
24 Hileman v. City of Dallas, Tex., 115 F.3d 352, 353 (5th Cir. 1997).
25 Id. (quoting 29 U.S.C. § 706(8)(B)).
26 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 509-10 (2002).
27 Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007).
28 Id. at 1974.
29 Id. at 1965 n.3.
7
prove (1) she is an “individual with a disability”; (2) who is “otherwise qualified”;
(3) who worked for a “program or activity receiving Federal financial assistance”;
and (4) that she was discriminated against “solely by reason of her disability.”24
The Rehabilitation Act defines an individual with a disability as a person who
has a physical or mental impairment that “substantially limits one or more of
such person’s major life activities.”25
While Dark need not plead a prima facie case,26 she must provide grounds
demonstrating an entitlement to relief that are more than “labels and
conclusions, and a formulaic recitation of the elements of a cause of action.”27
She must plead “enough facts to state a claim to relief that is plausible on its
face.”28 As the Supreme Court recently noted:
Rule 8(a)(2) still requires a “showing,” rather than a blanket assertion, of
entitlement to relief. Without some factual allegation in the complaint, it
is hard to see how a claimant could satisfy the requirement of providing
not only “fair notice” of the nature of the claim, but also “grounds” on
which the claim rests.29
Dark’s complaint consists of a pre-printed form for suits under Title VII
to which she has added to the listed categories of discrimination the category
“physical disability.” She does not state the nature of her disability or its
imposed limitations on her life, though the MSPB decision she attached notes
that Dark claimed she suffered from carpel-tunnel syndrome and a herniated
disk but concludes there is insufficient proof demonstrating that Dark suffers

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No. 07-40975
30 Id.
31 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
8
from a disability as defined by the Rehabilitation Act. She asserts the USPS
discriminated because of her physical disability and that “[t]he defendant and
defendants refused to honor [her] medical restrictions as a service-connected
disabled veteran and injuries from an occupational on-the-job injury.” But she
pleads no facts giving “fair notice of the nature of the claim”30 and simply
concludes the USPS refused to accommodate her. She pleads no facts regarding
how she is otherwise qualified or implying that she was discriminated against
due solely to her alleged disability. While complaints are liberally construed, we
need not accept as true these largely conclusory allegations.31
* * *
For the foregoing reasons, we AFFIRM the district court’s dismissal of
Dark’s complaint for failure to state a claim.

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