FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

APR 19 2005 

PATRICK FISHER 

Clerk 

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 HA WK, Executive 

Director, BOP, Washington DC; 

STEVEN LACY, Special Investigating 

Supervisor, Leavenworth KS; 

ORLANDO A COST A, Special 

Investigating Supervisor, Leavenworth 

KS, 

Defendants - Appellees. 

No. 04-3154 

(D.C. No. 99-CV-3 l 08-GTV) 

(D. Kan.) 

ORDER AND JUDGMENT* 

This order and judgment is not binding precedent, except under the 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

Appellate Case: 04-3154 Document: 010110562708 Date Filed: 04/19/2005 Page: 1
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., 3 93 F .3d 1111, 1115 (10th Cir. 2004 ). The plaintiff has the burden to 

• ( ... 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. 

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Appellate Case: 04-3154 Document: 010110562708 Date Filed: 04/19/2005 Page: 2
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 (I 0th 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 

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Appellate Case: 04-3154 Document: 010110562708 Date Filed: 04/19/2005 Page: 3
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. 

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Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

Appellate Case: 04-3154 Document: 010110562708 Date Filed: 04/19/2005 Page: 4