APPELLANT PRO SE 

James H. Higgason, Jr. 

Michigan City, Indiana 

________________________________________________________________________ 

In the 

Indiana Supreme Court 

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No. 46S05-0804-CV-169 

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the trial court in an unpublished opinion, holding that the Three Strikes Law is constitutional.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
3

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.