October 10, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1488
ROBERT NICKERSON,
Plaintiff, Appellant,,
v.
LARRY DUBOIS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Before
Selya, Stahl and Lynch,
Circuit Judges.
Peter Costanza, Massachusetts Correctional Legal Services, Inc.,
on brief for appellant.
Nancy Ankers-White, Special Assistant Attorney General, and Carol
Colby, Counsel, Department of Correction, on brief for appellees.
Per Curiam. We have reviewed the parties' briefs
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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