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

                                                                   FILED
                                                                 January 28, 2009
                                No. 08-40148
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

ROGELIO MUNOZ

                                           Plaintiff-Appellant

v.

DAVID FORTNER, Physicians Assistant, Powledge Unit; DENNIS BLEVINS,
Warden, Powledge Unit; DELTON ATWOOD; UNIDENTIFIED CLAYTON,
Doctor; UNIDENTIFIED SMITH, Doctor; BEVERLY PARKER, Risk
Management/Safety Officer, Powledge Unit

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 6:07-CV-170


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Rogelio Munoz, Texas prisoner # 585137, appeals the magistrate judge’s
dismissal as frivolous, pursuant to 28 U.S.C. § 1915A(b), of his 42 U.S.C. § 1983
lawsuit against various officials at the Powledge Unit of the Texas Department
of Criminal Justice, Correctional Institutions Division, asserting claims of
deliberate indifference, cruel and unusual punishment, and violations of the

      *
      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should not be published and is not precedent except under the limited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. 08-40148

Americans With Disabilities Act. “This Court must examine the basis of its
jurisdiction, on its own motion, if necessary.” Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). “[T]he timely filing of a notice of appeal in a civil case is a
jurisdictional requirement.” Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007).
      Munoz did not file his notice of appeal within 30 days of the entry of
judgment dismissing his lawsuit, nor did he file a timely FED. R. CIv. P. 59(e)
motion which would have suspended the time for filing a notice of appeal.
Munoz did file, within 10 days of the entry of judgment in this case, a motion for
an extension of time to file a FED. R. CIV. P. 60(b) motion. Inasmuch as that
motion can be construed as a request to the time extend time to file a Rule 59(e)
motion, the magistrate judge properly denied it as she lacked any authority to
grant it. See FED. R. CIV. P. 6(b).
      Munoz’s subsequent Rule 60(b)(6) motion does not bring up the underlying
judgment for review. See Huff v. International Longshoremen’s Ass’n, Local
No. 24, 799 F.2d 1087, 1089-90 (5th Cir. 1986); Matter of Ta Chi Navigation
(Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir. 1984). The notice of appeal,
filed within 30 days of the denial of the Rule 60(b) motion, is timely as to that
motion, and this court has jurisdiction to consider a challenge to that denial. See
FED. R. APP. P. 4(a)(1)(A). However, the notice of appeal was untimely as to the
order dismissing Munoz’s § 1983 suit, and this court lacks jurisdiction to
consider that dismissal. See id.
      We review a denial of a Rule 60(b) motion under an abuse-of-discretion
standard. Travelers Ins. Co. v. Liljeberg Ents., Inc., 38 F.3d 1404, 1408 (5th Cir.
1994). Under Rule 60(b), the district court may relieve a party from a final
judgment for reasons that include (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation,
or other misconduct of an adverse party; (4) a void judgment; (5) a satisfied,
released, or discharged judgment; or (6) any other reason justifying relief from
the operation of the judgment. FED. R. CIV. P. 60(b). A motion filed pursuant to

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                                 No. 08-40148

Rule 60(b)(6) requires a showing of “extraordinary circumstances.” Hess v.
Cockrell, 281 F.3d 212, 216 (5th Cir. 2002).
      Munoz offers no argument that his postjudgment motion presented a
meritorious basis for relief under Rule 60(b). He conclusionally states that the
magistrate judge erred in denying the Rule 60(b)(6) motion “by not applying the
[correct] definition of deliberate indifference” to his claims regarding Fortner.
However, he does not further explain this contention or otherwise argue that his
motion presented exceptional circumstances warranting relief under Rule
60(b)(6). His arguments are aimed at the dismissal of his § 1983 suit, which is
not before this court.    Because he makes no argument that his motion
demonstrated exceptional circumstances warranting relief under Rule 60(b)(6),
Munoz has abandoned the sole basis for appeal. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993).
      Munoz contends that the magistrate judge erred in failing to appoint
counsel to represent him in this case. However, he has not shown that the
magistrate judge abused its discretion in denying his motion for counsel. See
Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987). Although Munoz asserts that the
legal issues of his case were too complex for him as a layperson to comprehend,
the issues presented in this case are not exceptionally complex, the evidence
consisted of prison disciplinary and medical records which required no
investigation, and Munoz has done a credible job of submitting motions and
filing papers on his own behalf. See id.
      Because this court lacks jurisdiction to consider Munoz’s appeal from the
underlying judgment, and because his appeal from the denial of the Rule 60(b)
motion is without arguable merit, the appeal is frivolous. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983). Because it is frivolous, the appeal is
dismissed. See 5TH CIR. R. 42.2. Both the magistrate judge’s dismissal of the
complaint and the instant dismissal of this appeal count as strikes under 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).

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                                  No. 08-40148

Munoz also has a previous strike. See Munoz v. Mora, No. 00-20166 (5th Cir.
Nov. 9, 2000) (unpublished). Because Munoz has now incurred three strikes
under § 1915(g), he is barred from proceeding in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g).
      APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.




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