Billy Mack Nichols v. Greg Harmon, Warden

p { margin-top: 0px; margin-bottom: 1px } body { font-family: "Times New Roman", serif; font-size: 12pt; font-weight: normal; font-style: normal }

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

February 12, 2004

BILLY MACK NICHOLS, JR.

             Appellant

v.

G. HARMON, ET AL

            Appellee

02-567

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, NO. CV 2002-290-5, HONORABLE FRED D. DAVIS III, JUDGE

AFFIRMED

Per Curiam

            Appellant, an inmate in the Arkansas Department of Correction, filed a petition for writ of mandamus against Greg Harmon, the warden of the prison unit where he is incarcerated. Appellant alleged that his constitutional right of access to the courts was being violated because, as an indigent inmate, he was not being provided an adequate number of envelopes. Appellant requested that we order Harmon to pass out envelopes daily as appellant needs and requests them. The petition was dismissed, and appellant appealed. On appeal, we ordered rebriefing, see Nichols v. Harmon, 02-567 (Ark. March 20, 2003) (per curiam), and appellant complied.

            The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 777, 20 S.W.3d 301, 304 (2000). A writ of mandamus is issued by this court only to compel an official or judge to take some action, and when requesting the writ, a petitioner must show a clear and certain right to the relief sought and the absence of any other remedy. Id.

            In its order of dismissal, the trial court found that appellant had not shown that he had a legal right to envelopes on a daily basis and that a writ of mandamus will not issue when appellant fails to show a clearly established legal right. Moreover, the court considered the dismissal a “strike” for purposes of Ark. Code Ann. § 16-68-607 as appellant failed to state a claim upon which relief could be granted.

            We have previously held that one envelope per week is sufficient to protect an indigent inmate's right to access to the courts. Rowbottom v. State, 327 Ark. 76, 79 n.1, 938 S.W.2d 224, 225 n.1 (1997) (citing Hershberger v. Scaletta, 33 F.3d 955 (8th Cir.1994)). Exhibit A to Defendant’s Motion to Dismiss, which is entitled “Supply History (Law Library),” lists all legal materials given to appellant from August 3, 2000 to March 23, 2002. The notation “Env.” means that on those dates, appellant received two envelopes for legal mail. Moreover, there were dates when appellant received more than one large envelope. As reflected in that document, during that time period, appellant was given, at a minimum, an average of one envelope per week when requested. In fact, appellant was given forty-one envelopes by the law library in the first twelve weeks of 2002. Appellant has not shown that he has a legal right to envelopes on a daily basis. As we have stated, an inmate has the right to receive one envelope per week, which appellant has been provided. Accordingly, appellant has not shown a clear right to the relief sought; therefore, his request for a writ of mandamus was properly dismissed.

            Affirmed.