APPELLANT PRO SE
James H. Higgason, Jr.
Michigan City, Indiana
________________________________________________________________________
In the
Indiana Supreme Court FILED
Apr 09 2008, 11:57 am
_________________________________
CLERK
No. 46S04-0804-CV-167 of the supreme court,
court of appeals and
tax court
JAMES H. HIGGASON, JR.
Appellant (Plaintiff below),
v.
INDIANA DEPARTMENT OF CORRECTION,
Appellee (Defendant below).
_________________________________
Appeal from the LaPorte Superior Court, No. 46D03-0608-SC-1024
The Honorable Paul J. Baldoni, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 46A04-0610-CV-582
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April 9, 2008
Boehm, Justice.
James Higgason, Jr. brings this claim in the amount of $2109.111 for the cost of
photocopying four copies of his 476-page habeas corpus petition.
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
1
This number appears to be the sum of expenses Higgason would have had to pay the Northern District
of Indiana for the clerk to make the required copies of his 476-page habeas petition, along with
Higgason’s actual expenditures in making the photocopies. Higgason’s actual out-of-pocket expenses
were only $205.11.
because he had filed three previous frivolous suits and was not in immediate danger of serious
bodily injury.2 Higgason appealed, arguing that the Three Strikes law violated the Open Courts
Clause found in article 1, section 12 of the Indiana Constitution. The Court of Appeals affirmed
the trial court and upheld the Three Strikes Law in an unpublished opinion. Higgason v. Dep’t
of Corr., No. 46A04-0610-CV-582 (Ind. Ct. App. Aug. 7, 2007). Judge Sullivan concurred in
part and dissented in part, concluding that the Three Strikes Law is unconstitutional, but that
Higgason’s claim should still be dismissed as frivolous. Id. 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 agree with Higgason and
Judge Sullivan 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).3 Courts generally
have the power to review state agency actions pursuant to the Administrative Orders and
Procedures Act. See Ind. Code §§ 4-21.5-1-1 to -7-9 (2004); Montgomery v. Ind. Dep’t of Corr.,
2
The Three Strikes Law provides:
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.
3
Higgason claims the policy states in pertinent part:
In those cases where an offender does not have sufficient funds in the Inmate Trust Fund
to pay for necessary copies of pleadings or other documents to be filed with a court, the
facility shall provide the offender without charge:
A. Two (2) copies for the court or another amount as required by the court;
B. One (1) copy for each opposing party or their legal representative; and
C. One (1) copy for the offender’s records.
2
794 N.E.2d 1124, 1126 (Ind. Ct. App. 2003). However, Indiana Code section 4-21.5-2-5(6)
provides that AOPA does not apply to agency actions “related to an offender within the
jurisdiction of the department of correction.” As Justice Rucker put it, it is now “settled law”
that “enforcement of prison disciplinary sanctions are not subject to judicial review.” Israel v.
Ind. Dep’t of Corr., 868 N.E.2d 1123, 1124 (Ind. 2007) (Rucker, J., concurring) (citing Blanck v.
Ind. Dep’t of Corr., 829 N.E.2d 505, 510 (Ind. 2005)). Higgason’s claim for copying costs under
a Department of Correction policy, like challenges to prison discipline, is a claim challenging
agency action that is “related to an offender within the jurisdiction of the department of
correction.” It is therefore, under settled law, “not a claim upon which relief may be granted”
and so is dismissible under the Frivolous Claim Law. Ind. Code Ann. § 34-58-1 (West Supp.
2007).4 We note that Higgason maintains the right to file a written grievance with the
Department of Correction concerning the alleged violations of policy. 210 Ind. Admin. Code 3-
1-15(h) (2004); Ind. Code § 11-11-1-2 (2004).
Conclusion
4
The sections of the Frivolous Claim Law relevant here are:
Sec. 1. Upon receipt of a complaint or petition filed by an offender, the court shall docket
the case and take no further action until the court has conducted the review required by
section 2 of this chapter.
Sec. 2. (a) A court shall review a complaint or petition filed by an offender and shall
determine if the claim may proceed. A claim may not proceed if the court
determines that the claim:
(1) is frivolous;
(2) is not a claim upon which relief may be granted; or
(3) seeks monetary relief from a defendant who is immune from
liability for such relief.
(b) A claim is frivolous under subsection (a)(1) if the claim:
(1) is made primarily to harass a person; or
(2) lacks an arguable basis either in:
(A) law; or
(B) fact.
3
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.
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.
4