Summary Calendar CRISTOBAL MOROZCO v. ABBAS KHOSHDEL, Medical Physician

* 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should not be published and is not precedent except under the limited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. 07-20659
Summary Calendar
CRISTOBAL M OROZCO
Plaintiff-Appellant
v.
ABBAS KHOSHDEL, Medical Physician
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-783
Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Cristobal M. Orozco, Texas prisoner # 831994, appeals the district court’s
dismissal of his motion, which he styled as a FED. R. CIV. P. 60(b) motion,
challenging the district court’s grant of leave to proceed in forma pauperis (IFP)
in his appeal of the dismissal of his 42 U.S.C. § 1983 complaint.
In 2006, Orozco filed a pro se civil rights complaint against prison
physician Abbas Khoshdel. The district court dismissed the complaint as
frivolous and for failure to state a claim upon which relief could be granted.
United States Court of Appeals
Fifth Circuit
F I L E D
July 30, 2008
Charles R. Fulbruge III
Clerk

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No. 07-20659
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Orozco filed a notice of appeal concerning the dismissal of his complaint and
moved for leave to proceed IFP on appeal. The district court granted Orozco’s
IFP motion and, pursuant to the Prison Litigation Reform Act of 1996 (PLRA),
required Orozco to pay the $455 appellate filing fee in installments. This court
dismissed Orozco’s appeal for lack of jurisdiction because Orozco had not timely
filed his notice of appeal.
Orozco subsequently filed a purported Rule 60(b) motion challenging the
district court’s grant of IFP. In his motion, Orozco requested the return of the
$455 appellate filing fee and argued that the district court should have known
at the time that he filed his IFP motion that this court lacked jurisdiction over
his appeal because his notice of appeal had not been timely filed. The district
court denied the motion, and Orozco filed a timely notice of appeal of the district
court’s order.
Orozco’s brief does not adequately address the basis for the district court’s
denial of his motion. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Thus, Orozco has abandoned any challenge to the district court’s dismissal of his
motion. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). In any event, Orozco is not entitled to a refund of the $455
appellate filing fee simply because his appeal was dismissed for failure to timely
file a notice of appeal. See Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir.
1997); see also Thurman v. Gramley, 97 F.3d 185, 187 (7th Cir. 1996), overruled
on other grounds by Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000) (“A solvent
litigant [proceeding IFP on appeal] must pay the filing and docketing fees for the
privilege of initiating an appeal; dismissal on jurisdictional grounds [for failure
to timely file a notice of appeal] does not lead the court to refund the appellant’s
money.”). To the extent that Orozco raises arguments related to his previously
dismissed appeal, we are without jurisdiction to consider them. See Pryor v.
United States Postal Serv., 769 F.2d 281, 288 (5th Cir. 1985). Accordingly, the
district court’s judgment is AFFIRMED.

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