APPELLANT PRO SE
James H. Higgason, Jr.
Michigan City, Indiana
________________________________________________________________________
In the
Indiana Supreme Court FILED
Apr 09 2008, 12:02 pm
_________________________________
CLERK
of the supreme court,
No. 46S05-0804-CV-169 court of appeals and
tax court
JAMES H. HIGGASON, JR.
Appellant (Plaintiff below),
v.
INDIANA DEPARTMENT OF CORRECTION,
Appellee (Defendant below).
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Appeal from the LaPorte Superior Court, No. 46D03-0610-CT-360
The Honorable Paul J. Baldoni, Judge
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On Petition to Transfer from the Indiana Court of Appeals, No. 46A05-0611-CV-667
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April 9, 2008
Boehm, Justice.
James Higgason, Jr. brings this claim for $1065 for the cost of photocopying several parts
of legal documents filed in several cases.
The trial court dismissed Higgason’s claim under Indiana’s Three Strikes Law, Indiana
Code § 34-58-2-1 (West Supp. 2007), finding that Higgason was barred from bringing a claim
because he had filed three previous frivolous suits and was not in immediate danger of serious
bodily injury.1 Higgason appealed, arguing that the Three Strikes law violated the Open Courts
1
The Three Strikes Law provides:
Clause found in article 1, section 12 of the Indiana Constitution. The Court of Appeals affirmed
the trial court in an unpublished opinion, holding that the Three Strikes Law is constitutional.
Higgason v. Dep’t of Corr., No. 46A05-0611-CV-667 (Ind. Ct. App. June 8, 2007). We grant
transfer concurrent with this opinion.
For the reasons given in Smith v. Indiana Department of Correction, No. 49S02-0804-
CV-166, __ N.E.2d __ (Ind. April 9, 2008), also decided today, we hold that the Three Strikes
Law violates the Open Courts Clause of the Indiana Constitution. Higgason’s claim may not be
dismissed solely because of his earlier litigation.
Higgason claims he is entitled to money for photocopying costs because of a state-created
right to gratuitous photocopies of legal pleadings. Specifically, Higgason cites Indiana
Department of Correction policy 00-01-102, p. 6, § VII (9/1/2002 version). As explained in
Higgason v. Indiana Department of Correction, 46S04-0804-CV-167, __ N.E.2d __ (Ind. April 9,
2008), also decided today, this claim should be dismissed under the Frivolous Claim Law as a
claim upon which relief may not be granted. I.C. § 34-58-1-2(a)(2).
Conclusion
The order dismissing Higgason’s claim under the Three Strikes Law is reversed. This
case is remanded to the trial court with instructions to dismiss the claim under the Frivolous
Claim Law.
Dickson and Rucker, JJ., concur.
Shepard, C.J., concurs in result.
If an offender has filed at least three (3) civil actions in which a state court has dismissed
the action or a claim under IC 34-58-1-2, the offender may not file a new complaint or
petition unless a court determines that the offender is in immediate danger of serious
bodily injury (as defined in IC 35-41-1-25).
Higgason claims that the court should address his claim because he is in “immediate danger of
serious bodily injury.” However, Higgason’s only claim for relief is for fees for photocopying, and not
relief from alleged abuse or relief from future harm. This quoted allegation is an exception from the
Three Strikes Law, which we have held is invalid. It adds nothing to his claim for copying costs.
2
Sullivan, J., concurs in result believing that Ind. Code § 34-58-2-1 is constitutional as
applied to Higgason but that the claim is subject to dismissal under Ind. Code § 34-58-1-2 in any
event.
3