           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 28, 2009
                                     No. 09-40348
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

JODY MCCREARY,

                                                   Plaintiff-Appellant

v.

Judge CYNTHIA KENT; JACK STEEN, JR.; MICHAEL J WEST; JASON
CASSEL; Officer WENDALL GARDNER,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:08-CV-457


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jody McCreary, Texas prisoner # 1142309, moves this court for leave to
proceed in forma pauperis (IFP) in this appeal from the district court’s dismissal
of his 42 U.S.C. § 1983 complaint. The district court dismissed the complaint
because McCreary had not shown that he paid the $200 sanction imposed in In
re McCreary, No. 08-40665, and, for the same reason, certified that the appeal
was not taken in good faith. We deny the IFP motion and dismiss the appeal as


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-40348

frivolous because McCreary did not comply with the sanction when he failed to
obtain leave prior to filing the § 1983 complaint. Although the sanction was
imposed in a habeas proceeding, the sanction applies to the instant case because
McCreary is challenging the same conviction that he challenged in that case.
Furthermore, McCreary does not address the district court’s reasons for denying
IFP. By failing to discuss the district court’s rationale for denying his IFP
motion, McCreary has abandoned the issue, and it is the same as if he had not
appealed the district court’s order. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Accordingly, McCreary’s IFP
motion is denied and his appeal is dismissed as frivolous. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983); 5 TH C IR. R. 42.2. McCreary’s motion for the
appointment of counsel on appeal is also denied.
      McCreary is cautioned that filing any future frivolous or repetitive motions
on any matter in this court or any court subject to this court’s jurisdiction will
subject him to additional sanctions, as will the failure to withdraw any pending
matters that are frivolous.
      MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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