
USCA1 Opinion

	




          October 10, 1995      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                         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.                                                            _________                                         -3-
