* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. -2- Before LUCERO , PORFILIO , and BALDOCK , Circuit Judges.
Plaintiff Rudy Martinez, a federal prisoner proceed ing pro se, challenges the district court’s denial of appointed counsel inhis 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 Peni tentiary in Leavenworth, Kansas, and transferred him to the federal penitent iary in Marion, Illinois in retaliation for exercising his rights. Defendants moved for summary judgment and attached exhibits to the motion, including conf idential prison reports which the district court reviewed in camera. Martinez fi led 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 re ports, which could have led to the discovery of evidence that would have helped hi s case. We affirm. “We review a district court’s refusal to appoint co unsel 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 plaint iff 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 districtcourt’s summary judgment order. He tells us instead that he might have been able to resist summary judgment if he had been appointed counsel b ecause an attorney would have been permitted to review the confidential mate rials. 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 u sed the confidential materials to find some evidence. We reject this argument bec ause 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 themto 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 re ference to alleged perjury after in camera review of files def endant sought to discover, and holding that discovery of files “would amount simply to a fishing expedition”). Moreover, the summary judgment order fairly describ es the information contained-4-

in the confidential materials. Accordingly, we can not find that the district court’s decision not to appoint counsel for Martinez “resul ted 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 pro ceed without prepayment of costs and fees. He is reminded that he is oblig ated to continue making partial payments until the entire fee has been paid. The judgment of the district court is AFFIRMED. Th e mandate shall issue forthwith.

Entered for the Court

Carlos F. Lucero Circuit Judge