-1-

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

)

AMIR FATIR, )

Plaintiff, ) 

)

v. ) C.A. NO. N23C-06-026 DJB

) 

MICHAEL RECORDS, AWELE )

MADUKA-EZEH, & SUSAN )

CONLEY, )

Defendants. ) 

ORDER UPON REVIEW OF APPLICATION TO 

PROCEED IN FORMA PAUPERIS AND SUBSEQUENT 

REVIEW OF COMPLAINT

This 11th day of October, 2023, having considered Plaintiff’s Application to 

proceed In Forma Pauperis as well as the required review of the Complaint filed; it 

appears to the Court that:

1. Amir Fatir (hereinafter “Plaintiff”), pro se, filed his Complaint and an

accompanying Motion to Proceed In Forma Pauperis in this Court on June 5, 2023.1 

Plaintiff’s Complaint asserts five (5) civil causes of action under 42 U.S.C. §§§ 1981, 

1983 and 1985, alleging violations of his Eight and Fourteenth Amendments to the 

United States Constitution, Article I, § 11 of the Delaware Constitution and his 

alleged rights set forth in 16 Del. C. § 4903A under the Delaware Medical Marijuana 

Act (“DMMA”). Specifically, he alleges Defendants collectively violated his Eighth 

Amendment and Fourteenth Amendment rights under the United States Constitution 

(Counts 1 & 2); that Defendants violated his protections against “cruel punishments” 

1 D.I. 1.
-2-

under Article I, § 11 of the Delaware Constitution (Counts 3, 4 & 5). All allegations 

center around the refusal of Defendants, in their capacity as employees at the 

Delaware Department of Corrections, to provide Plaintiff medical marijuana for 

various ailments. 

2. Plaintiff claims that he suffers from chronic pain caused by a variety of 

health conditions. He has been examined and treated by prison medical staff and 

specialists over the years to address and treat his various ailments. Currently, Plaintiff

avers he receives pharmaceutical drug treatment for his medical conditions, including 

chronic pain. He alleges that he lives in a constant state of debilitating pain because 

the prescribed drugs and pain relievers are ineffective.

3. Plaintiff made an official request to treat his chronic pain with medical 

marijuana (“Grievance #602764”), which was denied. Plaintiff appealed, which was 

denied on April 3, 2023, pursuant to 16 Del. C. § 4904A, prohibiting the use of 

medical marijuana in any correctional facility.2 This Complaint was subsequently 

filed along with the application to proceed in forma pauperis. Plaintiff seeks relief 

in the amount of $5,000,000 in punitive damages from each Defendant; injunctive 

relief as well as a declaratory judgment finding Plaintiff has an “equal right to the 

provisions of the Delaware Medical Marijuana Act, that 16 Del. C. § 4904A(a)(2)(c) 

is unconstitutional.”3

4. Under Delaware’s in forma pauperis statute, individuals wishing to file 

an action must first file an affidavit conforming to 10 Del. C. § 8802.4 Upon 

evaluation of a plaintiff’s application to proceed in forma pauperis in consideration 

of the amount of fees to be paid, the Court must assess the merits of the complaint.

5

2 Pl. Compl. ¶V, p. 2 -3.

3 Pl. Compl. ¶VII, p. 12.

4 10 Del. C. § 8802.

5 10 Del. C. § 8803.
-3-

Under Section 8803, the Court will issue a dismissal:

(1) if the court finds the action is factually frivolous, malicious or, upon 

a court's finding that the action is legally frivolous and that even a pro

se litigant, acting with due diligence, should have found well settled law 

disposing of the issue(s) raised. (2) Any order of dismissal shall 

specifically identify whether the complaint was factually frivolous, 

legally frivolous and/or malicious, and (3) [s]ervice of process shall not 

issue unless and until the court grants leave following its review.6

“All well-pled matters are accepted as true to determine whether ... [petitioner] 

can recover under any conceivable set of circumstances susceptible of proof under 

the complaint.”7“If a complaint fails to state a claim upon which relief may be 

granted, then it is deemed legally frivolous.”8“If the Court determines the complaint 

is faulty because it is legally frivolous, malicious or factually frivolous, then the 

Court dismisses it . . . [otherwise] it allows service of process to issue.”9

5. Further, Plaintiffs wishing to proceed in forma pauperis are mandated 

to file an affidavit addressing their ability to pay court costs and filing fees and a 

complete income disclosure in connection with their motion to proceed.10 If the 

plaintiff is incarcerated, they must also include a certified inmate account statement 

containing “all account activity for the 6-month period immediately preceding the 

filing of the complaint, or for the entire time the prisoner has been incarcerated, 

whichever time is less.”11 Prisoners may be precluded from filing in forma pauperis

[i]f . . . on three or more prior occasions, while incarcerated or detained 

in any facility, brought an action in a court that was dismissed on the 

grounds that it was frivolous, malicious or failed to state a claim upon 

6

Id. § 8803(b).

7

Johnson v. Howard, 1999 WL 743902, at *1 (Del. Super. Ct. Aug. 12, 1999) 

(internal citations omitted).

8

Id. 

9

Id.

10 10 Del. C. § 8802(b).

11 10 Del. C. § 8804(a).
-4-

which relief may be granted, he may not proceed in forma pauperis in 

the future, unless he is under imminent danger of serious physical injury 

at the time the complaint is filed.12

6. As an initial matter, Plaintiff’s Motion to Proceed in forma pauperis has 

failed to supply the required information listed under questions (9), (10), and (11) of 

his Affidavit.13 Pursuant to question (9), Plaintiff has failed to include a Department 

of Correction certified statement of his inmate account activity for the 6-month period 

immediately preceding the filing of this Complaint.14 Concerning question (10), 

which asks a litigant to identify previous cases that have been filed while 

incarcerated, Plaintiff failed to provide a complete and accurate response. Though 

Plaintiff compiled a list of cases he previously filed, 15 he failed to include at least 

one prior action in his attached exhibit.16 Moreover, under question (11), Plaintiff 

failed to attach copies of all administrative decisions relevant to the claims at issue 

here.17 As a result of this failure, the application to proceed in forma pauperis is 

DENIED.

7. Another issue precludes the Court’s ability to grant this application. 

Under 10 Del. C. § 8804(f), if a prisoner has filed three or more cases that have been 

dismissed as frivolous, malicious, or failing to state a claim upon which relief may 

be granted, he may be barred from proceeding in forma pauperis unless he is under 

an imminent danger of serious physical injury.18 On March 4, 2011, the Delaware 

12 10 Del. C. § 8804(f).

13 Application and Affidavit to Proceed In Forma Pauperis, 3-4, Fatir v. Records, 

No. N23C-06-026 DJB, Jun. 5, 2023.

14 Id. at 3.

15 Id. at 4.

16 See Fatir v. Taylor, 663 Fed. Appx. 218 (3d. Cir. 2016).

17 Application and Affidavit to Proceed In Forma Pauperis, Fatir v. Records, No. 

N23C-06-026 DJB, Jun. 5, 2023.

18 10 Del. C. § 8804(f).
-5-

Supreme Court affirmed a decision by the Court of Chancery dismissing Fatir v. 

Niedzielski as factually and legally frivolous and malicious.19 On January 10, 2019, 

this Court dismissed Fatir v. Governor of State as legally frivolous.20 And on April 

30, 2020, this Court dismissed Fatir v. Bd. Of Pardons, on the grounds that it was 

both malicious and legally frivolous.21 Therefore, Plaintiff is barred from filing in 

forma pauperis unless he demonstrates that he is under an imminent danger of serious 

physical injury at the time of filing. Upon review of the Complaint, Plaintiff fails to 

show that his lack of access to medical marijuana amounts to an imminent danger of 

serious physical injury.22 Therefore, even had the application been complete, it still 

must be DENIED.

7. Notwithstanding the issues discussed above, the Court will address the 

merits of Plaintiff’s Complaint to determine whether it is factually or legally 

frivolous under 10 Del. C. § 8803.

Claims Under Section 1983

8. Plaintiff alleges that Defendants violated his rights under the Eighth 

and Fourteenth Amendment of the United States Constitution by failing to prescribe 

him medical marijuana. Plaintiff essentially avers a claim for deliberate 

indifference to a medical need. 

9. In Estelle v. Gamble, the United States Supreme Court declared that 

prison officials acting with deliberate indifference to a prisoner’s serious medical 

19 Fatir v. Niedzielski, 15 A.3d 217 (Table) (Del. 2011).

20 Fatir v. Governor, 2019 WL 162567 (Del. Super. Ct. Jan. 10, 2019).

21 Fatir v. Bd. Of Pardons, 2020 WL 2095981 (Del. Super. Ct. Apr. 30, 2020).

22 Id. (A plaintiff who makes unsubstantiated allegations regarding their preferred 

treatment represents a simply disagreement over medical care and thus “fails to 

adequately allege the imminent possibility of serious physical injury required for 

proceeding under Section 8804 in forma pauperis.”).
-6-

need constitutes cruel and unusual punishment under the Eighth amendment and 

established a civil cause of action under 42 U.S.C § 1983.23 In order to allege a 

cognizable claim of deliberate indifference, an inmate must show, (1) a serious 

medical need and (2) acts or omissions by prison officials that indicate “deliberate 

indifference” to that need. 24 Deliberate indifference occurs when a prison official 

“knows that a prisoner faces a substantial risk of serious harm and fails to take 

reasonable steps to avoid the harm.”25 If reasonable treatment is being provided an 

inmate may not claim deliberate indifference because they were unable to select a 

specific type of medical treatment.26 Furthermore, prison healthcare personnel have 

discretion in providing inmates with medical care as long as it is reasonable.27

Accordingly, an inmate has no right to choose a specific type of medical treatment.28

10. Plaintiff’s deliberate indifference claim stems from Defendants’ refusal 

to prescribe him medical marijuana. When applying the test under Estelle, Plaintiff

fails to satisfy the second prong because he fails to state a claim that demonstrates 

acts or omissions by Defendants that indicate a deliberate indifference to his medical 

needs.29 Furthermore, Plaintiff’s Complaint sets forth that he has received specialized 

medical treatment for his various conditions for many years.30 The United States 

District Court for the District of Delaware has explained, “[a]n inmate's claims 

against members of a prison medical department are not viable under § 1983 where 

the inmate receives continuing care, but believes that more should be done by way of 

23 Estelle v. Gamble, 429 U.S. 97, 103-105 (1976). 

24 Deputy v. Conlon, 2010 WL 4056147, at *2 (Del. Super. Ct. Sept. 23, 2010).

25 Id.

26 Id.

27 Id. at *3.

28 Id.

29 D.I. 

30 D.I. 2.
-7-

diagnosis and treatment and maintains that options available to medical personnel 

were not pursued on the inmate's behalf.”31 It is well settled that disagreements over 

treatment are not the same as deliberate indifference, and as such, similar claims 

under § 1983 action are not viable.

11. Although Plaintiff avers that he has a serious medical need, he cannot, 

under these facts, make any showing of Defendants’ deliberate indifference to that 

need. This Court has already determined that a plaintiff’s dissatisfaction with the 

medical care provided by prison healthcare personnel is insufficient to state a claim 

for deliberate indifference.32 Therefore, Plaintiff fails to state a valid constitutional 

claim under the Eighth Amendment. 

12. Plaintiff’s Fourteenth Amendment claim fairs no better. Plaintiff alleges 

that Defendants violated his equal protection rights by denying him access to medical 

marijuana, which is a form of treatment available to other Delaware residents. He 

appears to argue Defendants are unconstitutionally prohibiting a person’s right to 

access medical marijuana based on their incarceration status. While the equal 

protection clause of the Fourteenth Amendment prohibits arbitrary distinctions 

amongst citizens that are of no legitimate governmental interest it “does not deny a 

state the power to treat different classes of people in different ways as long as the 

classification is reasonable.”33 Here, the governmental interest in prohibiting 

prisoners from accessing medical marijuana while incarcerated is both legitimate and 

reasonable.

31 Blackston v. Correctional Medical Services, Inc., 499 F.Supp. 2d 601, 605 (D. 

Del. 2007).

32 Price v. Centurion of Delaware, LLC, 2022 WL 16945692, at *4 (Del. Super. Ct. 

Nov. 15, 2022).

33 State v. Brothers, 384 A.2d 402, 404 (Del. Super. Ct. 1978) (citing Eisenstadt v. 

Baird, 405 U.S. 438, 92 (1972)).
-8-

Claims Under Section 1981 and Section 1985

13. Plaintiff alleges Defendants violated 42 U.S.C. §§ 1981, 1985 and his 

rights under the Eighth and Fourteenth Amendments to the United States 

Constitution. Because Plaintiff’s complaint does not include an allegation of 

intentional discrimination against a member of a protected class as the basis of the 

allegation, the claim under 42 U.S.C. § 1981 necessarily fails.34

14. Similarly, Plaintiff’s 42 U.S.C. § 1985 claim also must fail. An adequate 

claim under 42 U.S.C. § 1985 requires a plaintiff to allege a conspiracy between two 

or more individuals that is motivated by racial animus.35 The United States Supreme 

Court has held that “[t]he language requiring intent to deprive of equal protection, 

or equal privileges and immunities, means that there must be some racial, or perhaps 

otherwise class-based, invidiously discriminatory animus behind the conspirators' 

action.”36

15. Because Plaintiff has failed to allege that the individual Defendant’s 

conspired against him because of his race, or engaged in any conspiratorial conduct 

directed towards him that was racially motivated, the claims alleged under §§ 1981 

and 1985 violations are without merit and fail as a matter of law. 

Claims under Article I, § 11 of the Delaware Constitution

16. Plaintiff further alleges Defendants violated Article I, § 11 of the 

Delaware Constitution in denying him access to medical marijuana. Section 11 

34 Tekstrom, Inc. v. Savla, 2006 WL 2338050 (Del. Super. Ct.) aff'd, 918 A.2d 1171 

(Del.2007) (“A complaint that adequately alleges a violation of 42 U.S.C. § 1981 will 

state the plaintiff is a member of a protected class, such as his race, the defendant 

intended to discriminate against plaintiff based on his race, and the discrimination 

interfered with the activity provided in § 1981.”).

35 Malachi v. Sosa, 2011 WL 2178626, at *3 (Del. Super. Ct. May 25, 2011).

36 Id.
-9-

provides “in the construction of jails a proper regard shall be had to 

the health of prisoners . . .”37 This Court has addressed a similar Article I, § 11 claim 

in State v. Kelson.

38 The Kelson court determined that, “construction” means the 

“creation of something new, as distinguished from the repair or improvement of 

something already existing.”39 Therefore, Article I § 11’s intended meaning refers to 

considerations for the health of prisoners when building new prisons, which Plaintiff 

fails to allege. Instead, he avers Defendants violated Article I and failed to take the 

health of prisoners into consideration when denying them access to medical 

marijuana, which is prohibited by DMMA. 

17. Plaintiff’s claim also fails to articulate how his rights were violated or 

cite to a single relevant authority to support his position. The Supreme Court of

Delaware has consistently refused to consider state constitutional claims that are

supported merely by conclusory assertions that fail to cite to any legal authority or

offer a substantive legal argument.40 

18. It is notable, as well, that Plaintiff’s argument is contradictory. He 

alleges that DMMA violates his rights under Article I, § 11 yet also relies on DMMA 

to support his claims under the Eighth Amendment.41 Regardless, Plaintiff’s claim

fails because it lacks any substantive legal argument that clarifies how the Defendants 

violated his rights.

The Delaware Medical Marijuana Act (“DMMA”)

19. Last, Plaintiff claims the provision of DMMA which excludes medical

37 Del. Const. art I, § 11.

38 State v. Kelson, 1990 WL 35254, at *6 (Del. Super. Mar. 20, 1990).

39 Id.

40 Ortiz v. State, 869 A.2d 285, 290 (Del. 2005).

41 D.I. 6-9.
-10-

marijuana use in correctional facilities violates his rights under the Delaware

Constitution. DMMA legalizes the use of medical marijuana for certain qualifying 

individuals and entities. Further, DMMA ensures, “[that] no person may be subject 

to arrest, prosecution, or denial of any right or privilege, including but not limited to 

civil penalty or disciplinary action by a court or occupational or professional licensing 

board or bureau.”42 Qualifying individuals have a valid registry identification card 

for the use of medical marijuana and are not in possession of an amount of marijuana 

that exceeds the amount permitted under the related subsections.43

20. Plaintiff alleges his constitutional rights were violated by DMMA under 

the Delaware Constitution. The alleged constitutional harm, in a liberal reading of 

the Complaint, seems to stem from the fact that Plaintiff will never become a 

qualified person under DMMA because of this exclusion. Plaintiff, however, fails to 

articulate a substantive legal argument to support his claim. Again, alleged 

constitutional violations are not properly presented, and will not be addressed, when 

they fail to make a substantive legal argument.44 In order to properly present such a 

claim, “a defendant must discuss and analyze one or more of the following nonexclusive criteria: ‘textual language, legislative history, preexisting state law, 

structural differences, matters of particular state interest or local concern, state 

traditions, and public attitudes.’”

45 Plaintiff makes no such presentation and as such, 

his final constitutional claim fails.

21. Plaintiff’s Complaint is legally frivolous and it appears from the face of 

the Complaint that he is not entitled to relief. 

22. Accordingly, even had the Motion to Proceed In Forma Pauperis not 

42 16 Del. C. § 4903A(h).

43 Id.

44 Jenkins v. State, 970 A.2d 154, 158 (Del. 2009).

45 Id.
-11-

been DENIED, his Complaint is still DISMISSED as legally frivolous under 10 Del. 

C. § 8803(b).

IT SO ORDERED this 11

th day of October, 2023.

______________________________

Danielle J. Brennan, Judge

CC: File&Serve

Fatir Amir, Pro Se, SBI: 00137010

Delaware Department of Justice

Delaware Department of Corrections