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UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

GARY LEE SEYMOUR, 

Plaintiff, 

v. Case No. 5:20-cv-214-TKW-MJF 

MARK S. INCH, 

Defendant.

/ 

REPORT AND RECOMMENDATION

This prisoner case, filed under Title II of the Americans with Disabilities Act 

of 1990 (“ADA”), and the Rehabilitation Act of 1973 (“RA”), is before the court 

upon Plaintiff Gary Lee Seymour’s “Motion for Temporary Restraining Order and 

Preliminary Injunction.” (Doc. 6). Defendant Mark S. Inch, Secretary of the Florida 

Department of Corrections (“FDC”), has responded in opposition to the motion. 

(Docs. 23, 25). For the reasons set forth below, the undersigned recommends that 

Plaintiff’s motion for a preliminary injunction be denied.1

1 The District Court referred this case to the undersigned to address preliminary 

matters and to make recommendations regarding dispositive matters and motions for 

injunctive relief. See N.D. Fla. Loc. R. 72.2(C); see also 28 U.S.C. § 636(b)(1); Fed. 

R. Civ. P. 72.

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I. BACKGROUND AND PROCEDURAL HISTORY

Seymour is a Florida prisoner proceeding pro se. Seymour initiated this 

lawsuit one year ago, by filing a complaint against FDC Secretary Mark Inch in his 

official capacity. Seymour claims that prison officials are discriminating against him 

in violation of the ADA and the RA by providing him adult—instead of pediatric—

diapers for his bowel incontinence. (Doc. 1). 

One month after filing his complaint, Seymour filed this motion for a 

preliminary injunction to force the FDC to provide him pediatric diapers. (Doc. 6). 

Seymour’s motion for a preliminary injunction incorporates the allegations of his 

complaint, (Id. at 1), which are set forth below.

A. Allegations of Seymour’s Complaint and Motion for a Preliminary 

Injunction

Seymour is a paraplegic with bowel incontinence. (Doc. 1 at 5, ¶ 3). Prior to 

entering the prison system, Seymour “receiv[ed] pediatric diapers as a treatment 

reg[i]men for bowel incontinence.” (Id.). When Seymour entered the FDC in 

February 2014, medical staff at the Central Florida Reception Center continued to 

provide him with pediatric diapers (Pampers Cruisers size 6). (Id. ¶ 4). In March 

2014, Seymour was transferred to Gulf CI where he was provided Huggies Little 

Movers size 5 for approximately one year. (Id. ¶ 5). Medical staff then switched him 

to adult diapers. (Id. ¶ 5). The adult diapers were too large and leaked fecal matter 

onto his bedding and clothing. (Id.) 

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In April 2019, while confined at Suwannee CI, Seymour received Huggies 

Snug ‘n Dry size 6 diapers. (Id. ¶ 8). Later, at Century CI, Seymour was provided 

Pampers. (Id. ¶ 10). 

In June 2020, Seymour was transferred from Century CI to the Northwest 

Florida Reception Center (“NWFRC”). (Id. ¶ 10). A security prison official at 

NWFRC confiscated a box of Pampers Seymour had stored in his personal property. 

(Id.). Medical staff at NWFRC provided Seymour with adult diapers, but Seymour 

alleges that adult diapers are too large for his frame and cause feces to leak onto his 

bedding and clothing. (Id. ¶ 6). The resulting odor “causes plaintiff to frequently 

miss chow and has been told to leave the law library, chapel.” (Id. ¶ 9). In addition, 

according to Seymour, “the ill-fitting adult diapers and the leakage of fecal matter” 

cause “periodic and reoccurring open sores” which, if infected, could put him “in a 

life threatening situation.” (Id. ¶¶ 6-7). 

Seymour filed this lawsuit on August 17, 2020, claiming that pediatric diapers 

are necessary to avoid discrimination against him on the basis of his disability. (Id. 

at 1 ¶ 1, 8). As relief, Seymour seeks declaratory and injunctive relief (“providing 

the accommodations listed herein”), and damages in the amount of $275,000.00. (Id. 

at 8).

Seymour’s motion for a preliminary injunction claims that Secretary Inch

“continues to knowingly allow his staff to discriminate against plaintiff by denying 

the requested ADA accommodations, pediatric diapers.” (Doc. 6 at 1 ¶ 3). Seymour 

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alleges that he “has reasonable cause to belief [sic] that he is in danger of recurring 

sores that could put him in imminent danger of death.” (Id. ¶ 4). Seymour seeks to 

enjoin prison officials from “denying the pediatric diapers plaintiff needs for bowel 

incontinence and prevent recurring open sores.” (Id. at 2).

On January 26, 2021, Seymour was transferred to the Reception and Medical 

Center (“RMC”), which remains his current address. (Doc. 9).

B. Secretary Inch’s Response to Seymour’s Motion for a Preliminary 

Injunction

Secretary Inch opposes Seymour’s motion for a preliminary injunction. (Docs. 

23, 25). The Secretary offers a declaration from Kellie Caswell, RN, BSN, along 

with 39 pages of Seymour’s prison medical records. (Doc. 23, Ex. A (Caswell Decl.); 

Doc. 25, Ex. A (Medical Records)). 

Caswell is Legal Nurse Consultant for the FDC’s Office of Health Services. 

(Doc. 23, Caswell Decl. ¶ 1). Caswell reviewed Seymour’s medical records and 

concludes that there presently is not, nor has there ever been, a documented medical 

reason for Seymour to need pediatric diapers. (Id. ¶ 9). Caswell observes that 

Seymour is being provided a disposable brief appropriate for his weight and size. 

(Id. ¶¶ 7-9). Caswell also concludes that Seymour does not face a threat of serious 

harm if he is not provided pediatric diapers. (Id. ¶ 10). In that regard, she observes 

that Seymour developed a “sore” only once, which was a pressure ulcer from not 

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repositioning himself, and that it was treated effectively. Caswell’s declaration and 

Seymour’s prison medical records show the following. (Id.). 

Seymour is paraplegic. (Doc. 23, Caswell Decl. ¶ 5; Doc. 25, Ex. A). He is 

incontinent of feces and has an ileal conduit which diverts urine into a bag/pouch. 

(Doc. 23, Caswell Decl. ¶ 6; Doc. 25, Ex. A). Seymour is 5’10” tall and weighs 116 

pounds. (Doc. 25, Ex. A at 4). He does not have a medical pass for disposable 

briefs/diapers. (Doc. 23, Caswell Decl. ¶ 6). He is provided a disposable brief/diaper

as needed. (Id. ¶¶ 6, 8). The disposable brief is an adult brief with a tape closure, 

size small, for waist size 22”–36”. (Id. ¶ 8). According to the weight range on a 

Huggies package, a size 6 pediatric diaper generally has a weight range of 

approximately 35 pounds, and a size 5 has a weight range of 27 pounds. (Id. ¶ 7).

Seymour’s medical history of diaper use includes the following. The FDC 

took custody of Seymour on February 19, 2014. (Doc. 25, Ex. A at 3). On August 

14, 2014, Seymour weighed 138 pounds, and his weight dropped to 133 pounds by 

September 14, 2014. (Doc. 25, Ex. A at 38). 

On September 15, 2014, Seymour’s medical chart was referred to a clinician 

after officers discovered, during a property search, that Seymour was hoarding 

diapers. He had 36 Huggies diapers, 3 unopened packages of youth diapers, and 1 

package of opened youth diapers. (Id. at 38). On September 17, 2014, the ARNP 

concluded that Seymour “clearly [was] not using them on a daily basis,” 

discontinued Seymour’s medical pass for a supply of diapers and wipes, and ordered 

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that Seymour follow up at sick call to obtain those items when needed. (Id. at 37; 

see also id. at 3). The ARNP directed that at sick call, any diapers and wipes should

be supplied “on a daily 1-1 basis (i.e., come to infirmary; clean self; get new diaper; 

leave soiled one in the infirmary).” (Id.). 

On December 7, 2014, Seymour submitted an Inmate Sick Call Request at 

Gulf CI, stating that he needed “youth tape-on diapers” instead of “pull-ups.” (Doc. 

25, Ex. A at 36). On December 9, 2014, the ARNP evaluated Seymour and 

concluded that there was no medical indication for not using the pull-up-style diaper

available at the institution. (Id. at 35). The ARNP ordered that Seymour be issued 

one package of diapers per week, and counseled him on hoarding. (Id.).

Seymour was transferred to NWFRC on January 29, 2015. (Id. at 34). On 

February 2, 2015, the RN assessed Seymour’s medical passes and issued him passes 

for adult disposable briefs (size XXSM) and wipes. (Id.). On March 8, 2015, 

Seymour appeared at the medical department supply window and stated “I need my 

Huggies diapers with Mickey Mouse on them.” (Id. at 33). The nurse observed that 

there were no pediatric diapers in the supply closet and that Seymour’s medical pass 

did not authorize pediatric diapers. (Id.). The nurse measured Seymour’s waist to 

confirm his size. At that time, his waist measured 28.25 inches and his hips measured 

32 inches. (Id.). The nurse noted that Seymour was not wearing any type of 

brief/diaper/underwear at the time, and that although he reported having sores in the 

past, he had no skin breakdown or wounds. (Id.). Seymour complained that he 

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needed “baby diapers because of the gap under legs allow leakage so I need size 5 

diapers only.” (Id.) The nurse explained to Seymour that she only could offer him 

what was in the supply closet, and that the smallest disposable brief available was 

an adjustable adult brief for waist size 20”-32”. (Id.). Seymour refused the 

disposable briefs and noted that he would use the pediatric diapers in his property 

until the matter was resolved. (Id. at 32-33). 

On March 22, 2015, while confined at NWFRC, Seymour appeared at the 

medical supply window and stated that he had a pass for diapers. (Id. at 31). The 

nurse instructed Seymour to get the pass and return to the window. (Id.). Seymour 

did not return to the supply window. (Id.). On May 31, 2015, Seymour was offered 

disposable adult briefs, but refused them. (Id. at 30). Seymour’s waist measurement 

on January 21, 2016, was 29”. (Doc. 23, Caswell Decl. ¶ 8).

On January 18, 2018, while confined at NWFRC, Seymour was issued one 

adult disposable brief, size small, and five baby wipes. (Doc. 25, Ex. A at 22-24). 

The nurse noted that Seymour was scheduled for a follow-up appointment with a 

doctor on January 19, 2018, to address his hoarding of medical supplies. (Id.). In that 

regard, the nurse noted that staff found 64 small adult briefs and 5 infant diapers 

(among a large number of other medical supplies) in Seymour’s property. (Id.).

On June 27, 2018, Seymour reported to sick call at NWFRC, where he 

requested smaller diapers due to leakage. An RN noted that she would consult with 

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an ADA nurse and the supply room for availability of an extra small-sized disposable 

brief. (Id. at 21). There is no documentation concerning the availability of that item.

As mentioned above, Caswell states that Seymour currently is housed at RMC 

where he is being provided size small adult diapers with a tape closure. The diaper

fits a waist size of 22”-36”. (Doc. 23, Caswell Decl. ¶ 8). Caswell opines that this 

size is appropriate given Seymour’s last weight and measurement. (Id. ¶ 9). Caswell 

also observers that there is not a documented medical reason for Seymour to need 

pediatric diapers. (Id.).

Concerning sores, Caswell reviewed Seymour’s medical records and observes

that Seymour has had multiple wound assessments with no wounds detected. (Doc. 

23, Caswell Decl. ¶ 10; see also Doc. 25, Ex. A). Caswell also observes that it is 

documented many times that Seymour is able to change positions and turn himself 

when in bed or in a chair to avoid pressure ulcers. (Id.). On February 19, 2021, 

Seymour had a Stage 2 sacral wound (pressure ulcer). (Id.; see also Doc. 25, Ex. A 

at 12). A Stage 2 sacral wound is typically superficial and presents as an abrasion 

or blister. (Doc. 23, Caswell Decl. ¶ 10). At that time, Seymour was admitted to 

RMC for other reasons. (Id.). The wound was treated effectively, and Seymour 

continues to have monthly wound assessments. No other wounds have been 

detected. (Id.; see also Doc. 25, Ex. A at 4-11).

II. DISCUSSION

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To establish entitlement to a preliminary injunction, a movant must 

demonstrate:

(1) a substantial likelihood of success on the merits of the underlying claim;

(2) a substantial likelihood of suffering irreparable injury if the injunction is 

not granted;

(3) that the threatened injury to the plaintiff outweighs any injury the 

nonmovant might suffer from the injunction; and

(4) the injunction would not disserve the public interest.

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); In re Gateway 

Radiology Consultants, P.A., 983 F.3d 1239, 1254 (11th Cir. 2020); Ingram v. Ault, 

50 F.3d 898, 900 (11th Cir. 1995) (discussing the requirements for issuing a TRO).

“A preliminary injunction is an extraordinary and drastic remedy not to be granted 

unless the movant clearly establishes the burden of persuasion as to the four 

requisites.” All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 

1535, 1537 (11th Cir. 1989); Bloedorn v. Grubs, 631 F.3d 1218, 1229 (11th Cir. 

2011) (emphasizing that a temporary restraining order or “preliminary injunction in 

advance of trial is an extraordinary remedy”).

“A showing of irreparable injury is ‘the sine qua non of injunctive relief.’” 

Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (quoting Ne. Fla. Chapter 

of the Ass’n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th 

Cir. 1990)). “[T]he asserted irreparable injury ‘must be neither remote nor 

speculative, but actual and imminent.’” Siegel, 234 F.3d at 1176 (quoting City of 

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Jacksonville, 896 F.2d at 1285). “[T]he absence of a substantial likelihood of 

irreparable injury would, standing alone, make preliminary injunctive relief 

improper.” Siegel, 234 F.3d at 1176 (citations omitted).

Seymour argues that he is entitled to a preliminary injunction because each 

relevant factor weighs in his favor. Regarding a substantial likelihood of success on 

the merits of his claims, Seymour states that he “has a great likelihood of success” 

because “[t]he law prohibits discrimination against a qualified ADA individual.” 

(Doc. 6 at 2). Regarding irreparable harm, Seymour contends that “[d]enial of 

reasonable ADA accommodations that prevent sores are injurious to mind and body 

[and] constitutes irreparable harm.” (Id. at 1).

To state a claim of discrimination under Title II of the ADA, a claimant must 

prove:

(1) that he is a qualified individual with a disability; and (2) that he was 

either excluded from participation in or denied the benefits of a public 

entity’s services, programs, or activities, or was otherwise 

discriminated against by the public entity; and (3) that the exclusion, 

denial of benefit, or discrimination was by reason of the plaintiff’s 

disability.

Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083 (11th Cir. 2007).2

This court need not assess the likelihood that Seymour will succeed on the 

merits of his disability discrimination claims, because he has not established that 

2 The standard for determining liability under the RA is the same as the standard 

under the ADA. See Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).

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there is a substantial likelihood he will suffer irreparable injury if his proposed

preliminary injunctive relief—forcing the FDC to provide pediatric diapers—is not

granted. Seymour contends that a violation of the ADA always constitutes 

irreparable harm. The Eleventh Circuit, however, has rejected that proposition. See 

C.B. v. Bd. of Sch. Comm’rs of Mobile Cnty., Ala., 261 F. App’x 192, 194 (11th Cir. 

2008) (rejecting plaintiff’s argument that irreparable harm should be presumed when 

an ADA violation is alleged; stating that “unless a statute clearly mandates injunctive 

relief for a particular set of circumstances, the courts are to employ traditional 

equitable considerations (including irreparable harm) in deciding whether to grant 

such relief”); see also Siegel, 234 F.3d at 1177 (recognizing that no authority from 

the Supreme Court or the Eleventh Circuit has held that the irreparable injury needed 

for a preliminary injunction can be presumed for a substantially likely violation of 

constitutional rights) (collecting cases)).

Seymour’s allegation—that he “requires the pediatric diapers to avoid 

periodic and reoccurring open sores caused by the ill-fitting adult diapers and the 

leakage of fecal matter” (Doc. 1 ¶ 6),—is refuted by his medical records showing 

that he has not developed sores from leakage of feces. The “sore” he did suffer—a 

pressure ulcer in February 2019 from not repositioning himself—was treated 

effectively. 

Because Seymour fails to establish at least one of the requirements for 

preliminary injunctive relief—arguably the most important one—his motion for a 

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preliminary injunction should be denied. See Siegel, 234 F.3d at 1176

(“Significantly, even if Plaintiffs establish a likelihood of success on the merits, the 

absence of a substantial likelihood of irreparable injury would, standing alone, make 

preliminary injunctive relief improper.”).

III. CONCLUSION

For the reasons set forth above, the undersigned respectfully 

RECOMMENDS that:

1. Plaintiff’s motion for a preliminary injunction (Doc. 6) be DENIED.

At Panama City, Florida, this 6th day of August, 2021.

/s/ Michael J. Frank 

Michael J. Frank

United States Magistrate Judge

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must 

be filed within fourteen (14) days of the date of the Report and 

Recommendation. Any different deadline that may appear on the 

electronic docket is for the court’s internal use only and does not 

control. An objecting party must serve a copy of the objections on 

all other parties. A party who fails to object to the magistrate 

judge’s findings or recommendations contained in a report and 

recommendation waives the right to challenge on appeal the 

district court’s order based on unobjected-to factual and legal 

conclusions. See 11th Cir. R. 3-1; 28 U.S.C. § 636.

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