* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

(continued...)

F I L E D

United States Court of Appeals

Tenth Circuit

APR 19 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RUDY MARTINEZ,

Plaintiff - Appellant,

v.

PAGE TRUE, Warden; T. W. JOHNS,

Cpt, Leavenworth Federal

Penitentiary; C. MILNER, Special

Investigating Agent, Leavenworth KS;

MARY M. WATTS, Unit Manager,

Leavenworth KS; CINDY

ANDERSON, Counselor, Disciplinary

Hearing Officer, Leavenworth KS;

(FNU) DENNY, Chief Psychologist,

Leavenworth KS; G. L.

HERSHBERGER, Regional Director

of North Central Region, BOP, Kansas

City KS; KATHY HAWK, Executive

Director, BOP, Washington DC;

STEVEN LACY, Special Investigating

Supervisor, Leavenworth KS;

ORLANDO ACOSTA, Special

Investigating Supervisor, Leavenworth

KS,

Defendants - Appellees.

No. 04-3154

(D.C. No. 99-CV-3108-GTV)

(D. Kan.)

ORDER AND JUDGMENT *
*

(...continued)

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

-2-

Before LUCERO , PORFILIO , and BALDOCK , Circuit Judges.

Plaintiff Rudy Martinez, a federal prisoner proceeding pro se, challenges

the district court’s denial of appointed counsel in his case filed pursuant to 42

U.S.C. § 1983. His lawsuit claims that defendants violated his federal rights

while he was incarcerated at the United States Penitentiary in Leavenworth,

Kansas, and transferred him to the federal penitentiary in Marion, Illinois in

retaliation for exercising his rights. Defendants moved for summary judgment

and attached exhibits to the motion, including confidential prison reports which

the district court reviewed in camera. Martinez filed an opposition to the motion

and attached exhibits to his response. On appeal, he asserts that an attorney

should have been appointed to represent him because his attorney would have

been permitted to review the confidential prison reports, which could have led to

the discovery of evidence that would have helped his case. We affirm. 

“We review a district court’s refusal to appoint counsel for an indigent

prisoner in a civil case for an abuse of discretion.” Hill v. SmithKline Beecham

Corp. , 393 F.3d 1111, 1115 (10th Cir. 2004). The plaintiff has the burden to
-3-

show that appointment of counsel is warranted. Id. We will reverse the district

court’s ruling “[o]nly in those extreme cases where the lack of counsel results in

fundamental unfairness.” Id. (quotation omitted). 

On appeal, Martinez does not challenge the district court’s summary

judgment order. He tells us instead that he might have been able to resist

summary judgment if he had been appointed counsel because an attorney would

have been permitted to review the confidential materials. He has not suggested

what evidence an attorney might have discovered or how it could have helped

him; rather, he hopes that an attorney could have used the confidential materials

to find some evidence. We reject this argument because a party “may not use

discovery as a fishing expedition.” Anthony v. United States , 667 F.2d 870, 880

(10th Cir. 1981). 

We have inspected the confidential prison materials the district court

reviewed in camera, and find no information in them to support Martinez’s

claims. Therefore, we conclude that appointment of counsel to review the

materials would not have assisted in the discovery of useful evidence. Cf. United

States v. West , 672 F.2d 796, 800 (10th Cir. 1982) (finding no reference to

alleged perjury after in camera review of files defendant sought to discover, and

holding that discovery of files “would amount simply to a fishing expedition”). 

Moreover, the summary judgment order fairly describes the information contained
-4-

in the confidential materials. Accordingly, we cannot find that the district court’s

decision not to appoint counsel for Martinez “resulted in fundamental unfairness

to [him] or was an abuse of the court’s discretion.” Hill , 393 F.3d at 1115. 

The district court granted Martinez’s motion to proceed without prepayment

of costs and fees. He is reminded that he is obligated to continue making partial

payments until the entire fee has been paid. 

The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith. 

Entered for the Court

Carlos F. Lucero

Circuit Judge