Nickerson v. Dobois ( 1995 )

USCA1 Opinion

          October 10, 1995      [NOT FOR PUBLICATION]





                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 95-1488



                                  ROBERT NICKERSON,



                                Plaintiff, Appellant,,



                                          v.



                                LARRY DUBOIS, ET AL.,



                                Defendants, Appellees.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS







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                                        Before



                                Selya, Stahl and Lynch,

                                   Circuit Judges.
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            Peter Costanza,  Massachusetts Correctional  Legal Services, Inc.,
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        on brief for appellant.

            Nancy Ankers-White, Special  Assistant Attorney General, and Carol
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        Colby, Counsel, Department of Correction, on brief for appellees.
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                      Per Curiam.    We have reviewed the parties' briefs
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            and the  record on  appeal.   We affirm  the judgment  of the



            district  court essentially  for  the reasons  stated in  its



            memorandum  and  order dated  March  21, 1995.    Two points,



            however, call for additional comment.



                      First,  the plaintiff  offers  no  support for  his



            argument that the defendants  should have considered his four



            separate requests for  free postage as a  single bulk request



            for purposes of determining whether he was indigent.  103 CMR



              481.06 makes it  clear that indigence is determined  at the



            time of the particular request.  The  plaintiff has submitted



            no evidence suggesting  that he  was indigent on  any of  the



            four days in question.



                      Second,  we  reject,  for  failure  of  proof,  the



            plaintiff's  challenge   to  the  constitutionality   of  the



            indigence threshold set by the inmate mail regulations.   The



            plaintiff argues that the district court should have inquired



            into the "cost of living" in his prison facility and the need



            to  adjust  the  indigence  formula  for  inflation.    These



            omissions (if omissions at all)  are gaps in the  plaintiff's



            own case.  The record shows that the plaintiff spent the bulk



            of  his discretionary  income on  tobacco, snacks,  and soda,



            leaving approximately  20% for stamps  and writing  supplies.

































            We cannot say  on this  record that  the indigence  threshold



            undercuts the plaintiff's right of access to the courts.



                      The judgment of the district court is affirmed.
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