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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOHN MONTUE, 

Petitioner, No. CIV S-04-1697 FCD JFM P

vs.

MIKE KNOWLES, et al.,

Respondents. ORDER

 /

Petitioner is a state prisoner proceeding pro se and in forma pauperis with an

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the

court on petitioner’s second motion for default judgment and for release on his own

recognizance, and on petitioner’s motions for access to legal materials and the law library, and to

depose the parole commissioners who denied him a parole date in 2002.

Petitioner’s motion for default judgment is in fact an opposition to respondents’

December 20, 2004 motion for a second extension of time to answer the petition. Respondents’

request was granted by order filed January 28, 2004, and on February 28, 2004 respondents’

timely filed an answer to the petition. Petitioner’s motion for default judgment is without merit

and will be denied. 

/////

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Petitioner has again moved for release on his own recognizance pending final

disposition of this action. Petitioner’s first motion for release was denied by order filed January

20, 2005. The standards for release pending disposition of a habeas corpus petition are set forth

in that order and will not be repeated herein. Petitioner has not, in the second motion, made the

showing required for release during the pendency of a habeas corpus action. The motion will

therefore be denied.

In his motion for court ordered access to legal materials and the law library,

petitioner contends that (1) he uses a typewriter to prepare pleadings due to extreme pain in his

right hand and prison officials have refused to provide him with ribbon for his typewriter or an

ink pen to sign documents; (2) prison officials have delayed his legal mail; (3) prison officials

have denied him access to the law library and altered the record of his attendance there; and

prison officials have improperly confiscated his Franklin Language Master Talking Dictionary.

In Lewis v. Casey, 518 U.S. 343 (1996), the United States Supreme Court held

that prison inmates have a constitutionally protected right to access the courts to bring civil rights

actions to challenge their conditions of confinement and to bring challenges to their criminal

convictions. Lewis v. Casey, 518 U.S. at 351. The right of access to the courts “guarantees no

particular methodology but rather the conferral of a capability -- the capability of bringing

contemplated challenges to sentences or conditions of confinement before the courts.” Id. at 356. 

Interference with the right of court access is remediable only if state officials by their acts have

prevented petitioner from bringing, or will cause him to lose, actionable claims of this type. Id.

Petitioner has already presented his habeas corpus claims to this court, has filed

his traverse, and the matter is now submitted for decision. The allegations in his motion are

insufficient to establish “actual injury” to his right to access the court to prosecute this habeas

corpus action. The motion will therefore be denied.

Finally, petitioner seeks leave of court to depose the parole commissioners who

denied him parole in 2002 to determine whether petitioner’s refusal to discuss his commitment

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offense at the hearing affected their decision to deny him parole. Rule 6 of the Rules Governing

Section 2254 Cases in the United States District Courts requires a showing of good cause before

authorization to conduct discovery may be granted. After review of the record, the court does not

find good cause for the requested depositions. Accordingly, petitioner’s motion will be denied.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner’s February 14, 2005 motion for default judgment is denied; and

2. Petitioner’s February 11, 2005 motion for release on his own recognizance is

denied;

3. Petitioner’s February 11, 2005 motion for court-ordered access to the law

library and legal materials is denied; and

4. Petitioner’s February 17, 2005 motion to depose parole commissioners is

denied.

DATED: April 22, 2005. 

12

mont1697.o2

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