A PPELLANT P RO S E James H. Higgason, Jr. Michigan City, Indiana

________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 46S05-0804-CV-169

J AMES H. H IGGASON , J R

. Appellant (Plaintiff below),

v.

I NDIANA D EPARTMENT OF C ORRECTION , Appellee (Defendant below)

.

_________________________________ Appeal from the LaPorte Superior Court, No. 46D03-0610-CT-360 The Honorable Paul J. Baldoni, Judge

_________________________________ On Petition to Transfer from the Indian a Court of Appeals, No. 46A05-0611-CV-667

_________________________________ 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 su its and was not in immediate danger of serious bodily injury. 1 Higgason appealed, arguing that the Thr ee Strikes law violated the Open Courts

1 The Three Strikes Law provides:Clause found in article 1, secti on 12 of the Indiana Constitution. The Court of Appeals affirmed the trial court in an unpublished opinion, holding th at the Three Strikes Law is constitutional.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 deci ded today, we hold that the Three Strikes Law violates the Open Courts Clause of the Indiana Constitution. Higga son’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 pl eadings. 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 th e Three Strikes Law is reversed. This
case is remanded to the trial court with instru ctions 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 cl aim 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.

23 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.