     Case: 17-11031      Document: 00514625574         Page: 1    Date Filed: 08/31/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-11031                         United States Court of Appeals

                                  Summary Calendar
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          August 31, 2018

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DAVID EARL KATES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:12-CV-18


Before SOUTHWICK, HAYNES, and HO, Circuit Judges.
PER CURIAM: *
       David Earl Kates, federal prisoner # 30428-077, moves to proceed in
forma pauperis (IFP) on appeal. He seeks to challenge the district court’s
enforcement of a sanction order. The district court certified that Kates’s appeal
was not taken in good faith. By moving for IFP status, Kates is challenging
the district court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-11031    Document: 00514625574    Page: 2   Date Filed: 08/31/2018


                                No. 17-11031

      Kates is an abusive litigant and has been sanctioned on several
occasions. In 2017, Kates submitted a motion under Federal Rule of Civil
Procedure 60(b) challenging the denial of a certificate of appealability (COA)
in 2002. In accordance with a prior sanction order, this pleading was stricken
without a ruling from the district court because he had not obtained written
permission to file the pleading.    We review such actions for an abuse of
discretion. Gelabert v. Lynaugh, 894 F.2d 746, 747-48 (5th Cir. 1990). Kates
argues the merits of his challenge to his sentence, but he has not addressed
the district court’s enforcement of the sanction order. Accordingly, he has
abandoned the only possible issue for appeal. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993).
      Kates has failed to show that the instant appeal involves legal points
arguable on their merits. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Accordingly, the IFP motion is DENIED, and the appeal is DISMISSED
as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.




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