* 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
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 callto 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 ofthe

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
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
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.6In 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
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 thatthe 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 notfiled 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.
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 complaintindulgently 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
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
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.