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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

GARY LEE SEYMOUR,

Plaintiff,

v. CASE NO.: 5:20-cv-214-TKW-MJF

MARK S. INCH, SECRETARY OF

FLORIDA DEPARTMENT OF

CORRECTIONS,

Defendant.

_______________________________/

SECRETARY’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION

FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY 

INJUNCTION

The Defendant, Mark S. Inch, Secretary of the Florida Department of 

Corrections (“Secretary”), by and through the undersigned counsel, responds in 

opposition to the Plaintiff’s Motion for Temporary Restraining Order and Preliminary 

Injunction (ECF No. 6) and in support of the Secretary’s position, states the following:

BACKGROUND AND PROCEDURAL HISTORY

1. The Plaintiff, Gary Lee Seymour(the “Plaintiff” or “Seymour”), DC# T77153, is 

an inmate in the custody of the Florida Department of Corrections and serving time for 

eighty-three (83) convictions for possession of child pornography. His estimated release

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date is December 27, 2028.

1

2. On August 17, 2020, the Plaintiff initiated a 42 USC § 1983 action by filing his 

Complaint for Violation of Civil Rights alleging violations of Americans with 

Disabilities Act and Section 504 of the Rehabilitation Act. See generally ECF No. 1. 

3. On September 22, 2020, the Plaintiff filed in a Motion for Temporary Restraining 

Order and Preliminary Injunction (ECF No. 6).

4. On April 21, 2021, the Secretary was served with the summons, complaint, and 

Plaintiff’s motion, and after an extension requested by the Secretary, a response to the 

motion and complaint is due on July 12, 2021. ECF No. 19.

The Plaintiff alleges the following:

In his Complaint, the Plaintiff alleges that he is a paraplegic and 100% disabled, 

and that he is not receiving pediatric diapers for bowel incontinence. ECF No. 1 at 5. 

On February 19, 2014, the Plaintiff began his incarceration with the Florida Department 

of Corrections (“FDC” or “the Department”) at Central Florida Reception Center 

(CFRC) with two boxes of pampers cruisers size 6, and said diapers were being 

continuously provided “but were being harder to receive.” Id. at 5. In March 2014, he 

was transferred to Gulf C.I. and provided with Huggies Little Movers size 5 for 

approximately 12 months. Id. Thereafter, the medical staff took away his Huggies and 

allegedly told the Plaintiff that he needed to get “big boy” diapers and provided him 

1 FDC’s Offender Information Search, http://www.dc.state.fl.us/offendersearch/, 

Seymour, Gary L. DC# T77153.

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with adult diapers that are too large for Plaintiff’s small frame. Id. at 5-6.

Apart from being a paraplegic, the Plaintiff alleges he has cancer and other 

serious medical conditions, and that if he develops sores, an infection could place him in 

a life-threatening situation. Id. Although the Plaintiff’s timeline is vague, presumably 

between March 2015 through April 2019, the Plaintiff was receiving adult diapers, until 

he received three boxes of Huggies in April 2019 when he was transferred from 

Suwannee C.I. to Northwest Florida Reception Center. Id. In June 2020, Sgt. Stevens 

at NWFRC took the Plaintiff’s pediatric diapers. Id. The Plaintiff alleges that he is 

“being denied programs, services, and activities due to the ill-fitting adult diapers 

leaking” causing him to miss his meals and being told to law library and chapel. Id.

In his motion for a temporary injunction, the Plaintiff vaguely and without any 

evidence alleges that the Secretary “has allowed staff to [commit] discrimination against 

a qualified ADA inmate, by engaging in systemic fashion with an unwritten policy.” 

ECF No. 6 at 1, ¶ 2. The Plaintiff also alleges that the “[Secretary] continues to 

knowingly allow his staff to discriminate against plaintiff by denying the requested ADA 

accommodations, pediatric diapers.” Id. at ¶ 3. The Plaintiff asserts that he has 

“reasonable cause to [believe] that he is in danger of recurring sores that put him in 

imminent danger of death.” Id. at ¶ 4. For relief, the Plaintiff requests a temporary

injunction to compel the Secretary to provide him with pediatric diapers. Id. at 2.

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Memorandum of Law

I. Preliminary Injunction

In order to obtain a preliminary injunction, Plaintiff must demonstrate “(1) a 

substantial likelihood of success on the merits of [his] case; (2) that [he] would suffer 

irreparable injury without the issuance of the injunction; (3) that [his] potential injury is 

greater than the possible harm the injunction would cause the [Defendant]; and (4) that 

the injunction would disserve the public interest.” Berber v. Wells Fargo Bank, N.A., 760

Fed. App’x 684 (11th Cir. 2019). See also Washington v. Jones, 2019 WL 920228, *4 (N.D. 

Fla. 2019) Report and Recommendation adopted by Washington v. Jones, 2019 WL 919589 

(N.D. Fla. 2019). “A preliminary injunction ‘is an extraordinary and drastic remedy not 

to be granted unless the movant clearly establishes the burden or persuasion as to each 

of the four prerequisites.’” Hamm v. Commissioner, Alabama Department of Corrections, 725 

F. App’x 836, 840 (11th Cir. 2018) (citing McDonalds Corp. v. Robertson, 147 F. 3d 1301, 

1306 (11th Cir. 1998)). See also Rule 56, Federal Rule of Civil Procedure. If the 

Plaintiff fails to meet any of the four elements, injunctive relief cannot be granted. Café

207, Inc. v. St. John’s City., 989 F.2d 1136, 1137 (11th Cir. 1993).

ARGUMENT

I. Plaintiff has not demonstrated a substantial likelihood of success on the merits 

of his case.

The Plaintiff does not have a substantial likelihood of success on the merits of his 

case. In the Complaint, the Plaintiff alleges he wore adult diapers for more than five 

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years, and yet, he did not allege that he developed sores from the adult diapers, but only 

that “if” a sore developed, it could place his life in danger. Moreover, even if a sore 

developed from fecal matter, the Plaintiff failed to allege that security or medical staff 

failed to treat any sores or prevented him from cleansing himself. 

Medical records reviewed by Kellie Caswell indicate that despite being paraplegic 

and wheelchair, the Plaintiff uses very little adult diapers; his urine drains into a bag;

and the Plaintiff has little to no need for any diapers. Exhibit A. Lastly, pediatric 

diapers do not fit his frame, and the Plaintiff has repeatedly refused small adult diapers 

that are appropriate for his frame. Id. As stated in the Secretary’s Motion to Dismiss 

and confirmed by the Plaintiff’s statement of requesting “Mickey Mouse diapers”, the 

Plaintiff’s requests for pediatric diapers are suspect given his eighty-three convictions for 

possession of child pornography.2

Apart from the Plaintiff’s factual deficiencies, the Plaintiff appears to not have 

exhausted his administrative remedies. Since July 1, 2019, the Plaintiff did not file any 

grievance or appeal concerning the denial of Plaintiff’s pediatric diapers nor of security 

staff taking them away. Exhaustion is mandatory. Alexander v. Hawk, 159 F.3d 1321, 

1323 (11th Cir.1998); Harper v. Jenkin, 179 F.3d 1311 (11th Cir.1999). Section § 

1997e(a) requires the plaintiff to exhaust any available administrative remedy before he 

files suit. Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012) (unreported op.); Cox v. 

2 The medical records reviewed by Kellie Caswell state that the Plaintiff requested 

diapers with Mickey Mouse on them . Exhibit A.

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Mayer, 332 F.3d 422, 425 (6th Cir. 2006).3 In Porter v. Nussle, 534 U.S. 516, 532, 122 

S. Ct. 983 (2002), the United States Supreme Court held that 42 U.S.C. §1997e(a) 

applies to all inmate suits about prison life, whether they involve general circumstances 

or particular episodes, and whether they allege excessive force or some other wrong. 

Exhaustion is required whether the plaintiff seeks declaratory and injunctive relief, 

monetary damages, or both. Booth v. Churner, 532 U.S. 731, 734, 121 S. Ct. 1819 

(2001); Alexander, 159 F.3d at 1325. The requirement is not subject to either waiver by 

a court, or futility or inadequacy exceptions. Alexander, 159 F.3d at 1325; see Booth, 

532 U.S. at 741 n.6.

Additionally, it is well-settled law, that the Secretary cannot to be liable for 

actions of his subordinate under § 1983, and the plaintiff must show an affirmative link 

between the subordinate and the supervisor, whether through direct participation or 

through conduct that amounts to condonation or tacit authorization. Velez-Rivera v. 

Agosto-Alicea, 437 F.3d 145 (1st Cir. 2006). The Plaintiff has not alleged that the 

Secretary participated nor directed any correctional or medical staff to take the 

Plaintiff’s pediatric diapers, except for vague, conclusory statements that are devoid of 

factual enhancements.

Lastly, the Plaintiff is incorrect that he is entitled to “any” accommodation. ECF 

3

 The Sixth Circuit in Cox cited to Harris v. Garner, 216 F.3d 970, 973-80 (11th Cir. 

2000) (en banc), “[f]or an extended explanation of why ‘to bring’ means ‘to file,’” where 

the Eleventh Circuit construed the same language (“brought”) in the physical injury 

section of § 1997e to mean “file.” Cox, 332 F.3d at 424 n.1.

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No. 1 at 7, ¶12. Title II of the ADA provides that “no qualified individual with a 

disability shall, by reason of such disability, be excluded from participation in or be 

denied the benefits of the services, programs, or activities of a public entity, or be 

subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Federal regulations 

implementing Title II require public entities to “make reasonable modifications in 

policies, practices, or procedures when the modifications are necessary to avoid 

discrimination on the basis of disability, unless the public entity can demonstrate that 

making the modifications would fundamentally alter the nature of the service, program 

or activity.” 28 C.F.R. § 35.130(b)(7)(I). The Plaintiff is not entitled to every or any 

accommodation, but reasonable accommodations must be provided, and if suitable and 

appropriately sized adult diapers are made available (and the evidence says they have) to 

the Plaintiff, then his claims under the ADA and RA necessarily fail.

For the foregoing reasons, it does not appear that the Plaintiff has a substantial 

likelihood of success on the merits, and the Court should deny the Plaintiff’s motion for 

an injunction.

II. Plaintiff will not suffer irreparable injury if he is not granted a preliminary 

injunction.

The Plaintiff also fails to demonstrate an irreparable injury which would result if 

he was not granted a preliminary injunction. According to the Plaintiff’s timeline, he

received adult diapers for five years and did not develop a sore and he only alleged an 

outcome that did not occur. The Plaintiff only reference to reoccurring sores is in the 

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motion’s conclusion paragraph and no reference to any actual sore is made in the 

Complaint. ECF No. 6 at 2. Although these reoccurring sores are not alleged in the 

operative complaint, the fact that the Plaintiff may develop sores is not unusual given 

that he is paraplegic; uses a wheelchair for mobility; and sometimes wears diapers for 

incontinence. The Plaintiff does not allege that security staff refuse to provide him with 

access to the showers to cleanse himself or that medical staff refuse or do not treat his 

sores. Also, medical records indicate that, except for a minor one, Plaintiff has not 

developed sores or wounds. Exhibit A.

The Eleventh Circuit has [i]rreparable harm “must be neither remote nor 

speculative, but actual and imminent.” Northeastern Florida Chapter of Ass'n of 

General Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 

1990). A preliminary injunction “will not be issued simply to prevent the possibility of 

some remote future injury. A presently existing actual threat must be shown.” 11A 

Charles Alan Wright, et al., Federal Practice and Procedure § 2948.1 (3d ed.). The 

medical records state that the Plaintiff has been offered and he has refused to receive

appropriately sized diapers. Exhibit A. The Plaintiff failed to allege any irreparable 

harm that is actual and imminent, and therefore, for the foregoing reasons, the Court 

should deny the Plaintiff’s motion.

III. The balance of hardships.

For the reasons stated herein, the balance of hardships weighs in the Secretary’s 

favor.

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IV. The public interest will be best served by not issuing a temporary injunction.

For the reasons stated herein, the public interest will be best served by not issuing 

a temporary injunction.

WHEREFORE, for the foregoing reasons, the Secretary respectfully requeststhat

the Court deny the Plaintiff’s Motion for a Temporary Restraining Order and 

Preliminary Injunction.

ASHLEY MOODY

ATTORNEY GENERAL

/s/ Omar J. Famada 

Omar J. Famada

Assistant Attorney General

Florida Bar No.: 94467

Office of the Attorney General

The Capitol, Suite PL-01

Tallahassee Florida 32399-1050

Telephone: (850) 414-3300

Facsimile: (850) 488-4872

Omar.Famada@myfloridalegal.com

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was electronically filed with 

the Clerk of Court using CM/ECF and furnished by U. S. Mail on July 23, 2021 to:

Gary L. Seymour, DC# T77153, Reception Medical Center, PO Box 628, Lake Butler, 

FL 32054.

/s/ Omar J. Famada

Omar J. Famada

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