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Carson v. Pepsi Bottling Group

February 13, 2007

ALVIN D. CARSON, PLAINTIFF
v.
PEPSI BOTTLING GROUP, DEFENDANT



The opinion of the court was delivered by: James H. Jarvis United States District Judge

MEMORANDUM AND ORDER

Currently pending is plaintiff's motion for leave to appeal in forma pauperis pursuant to Rule 24, Federal Rules of Appellate Procedure. An appeal cannot be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. 28 U.S.C. § 1915(a)(3). An appeal is not taken in good faith if, judged by an objective standard, the appeal raises issues that are frivolous. Coppedge v. United States, 369 U.S. 438 (1962). An appeal is frivolous if it is contrary to "proof ... sufficient as a matter of law" to support the judgment. United States v. Maines, 462 F.Supp. 15, 18 (E.D. Tenn. 1978).

In the instant case, the record reveals that plaintiff admits in his deposition that he knew the requirements for obtaining FMLA leave but did not comply with them. Further, he also admits that the doctor's certification that he presented to the defendant did not indicate that the plaintiff needed time off work because of a serious medical condition, but rather that plaintiff's condition was such that he was fully capable of returning to his normal work. Under the circumstances, any FMLA claim, which is the only claim brought in this action, would be frivolous. Accordingly, plaintiff's motion for leave to appeal in forma pauperis [Court File #25] is hereby DENIED.

20070213

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