                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          APR 19 2005
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RUDY MARTINEZ,

          Plaintiff - Appellant,

    v.                                                 No. 04-3154
                                                (D.C. No. 99-CV-3108-GTV)
    PAGE TRUE, Warden; T. W. JOHNS,                       (D. Kan.)
    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.


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      This order and judgment is not binding precedent, except under the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


*
 (...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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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


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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




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