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

RICKY D. DIXON, SECRETARY, 

FLORIDA DEPARTMENT OF

CORRECTIONS,

 

Defendant.

_______________________________/

MOTION FOR SUMMARY JUDGMENT

COMES NOW Defendant RICKY D. DIXON, in his official capacity as 

Secretary of the Florida Department of Corrections, (hereinafter ‘FDC’) by and 

through undersigned counsel, and pursuant to Rule 56, Federal Rules of Civil 

Procedure, hereby moves for the entry of an Order granting Summary Judgment in 

his favor in this cause. Defendant alleges the following: (a) That there is no genuine 

issue as to any material fact; and (b) Defendant is entitled to a judgment as a matter 

of law. Grounds for this Motion are more fully demonstrated in the accompanying 

memorandum of law and exhibits attached hereto.

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 

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serving a fourteen-year sentence for eighty-three (83) convictions for possession of 

child pornography. His estimated release date is December 27, 2028.1

2. On August 17, 2020, the Plaintiff filed his Complaint for Violation of Civil 

Rights alleging violations of Americans with Disabilities Act (hereinafter ‘ADA’)

and Section 504 of the Rehabilitation Act (hereinafter ‘RA’). [Doc. 1] 2

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

Order and Preliminary Injunction. [Doc. 6]

4. On July 23, 2021, former Secretary Inch filed his Motion to Dismiss the 

Complaint. [Doc. 22]

5. On July 29, 2021, Inch filed his Supplemental Response in Opposition to 

Plaintiff’s Motion for Temporary Restraining Order. [Doc. 25]

6. On Aug. 6, 2021, the Magistrate Judge issued his Report and Recommendation 

that Plaintiff’s Motion for Preliminary Injunction be denied. [Doc. 26]

7. On Oct. 1, 2021, the Court entered its Order adopting the Report and 

Recommendation that Plaintiff’s Motion for Preliminary Injunction be denied. [Doc. 

32]

8. On Dec. 10, 2021, the Magistrate Judge issued his Report and 

Recommendation that Defendant’s Motion to Dismiss be denied. [Doc. 35]

1 FDC’s Offender Information Search, http://www.dc.state.fl.us/offendersearch/, Seymour, Gary L. DC# 

T77153. 

2

 The original Defendant was Mark Inch, former Secretary of FDC. Since this case has been construed as 

an ‘official capacity’ action, Inch has been replaced by the current FDC Secretary, Ricky Dixon. 

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9. On Dec. 30, 2021, the Court adopted that Report and Recommendation, and 

denied the Defendant’s Motion to Dismiss. [Doc. 38]

10. On Jan. 20, 2022, Defendant filed his Answer to the Complaint. [Doc. 44]

11. This action is thus now at issue and ripe for ruling on Motion for Summary 

Judgment.

PLAINTIFF’S ALLEGATIONS

In his Complaint, the Plaintiff alleges that he has a small frame, is paraplegic 

in a wheelchair, is 100% disabled, and that he is not receiving pediatric diapers for 

bowel incontinence. [Doc. 1, pg. 5] After being convicted for the above-referenced 

offenses, on February 19, 2014, the Plaintiff began his incarceration with the FDC

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. In March 2014, Plaintiff was transferred to Gulf Correctional 

Institution and provided with Huggies Little Movers size 5 for approximately 12 

months. Id. Thereafter, the medical staff took away his Huggies, and allegedly told 

him that he needed to get “big boy” diapers, and provided him with adult diapers 

that are too large for Plaintiff’s small frame. Id. At pgs. 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, 

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presumably between March 2015 through April 2019, he was receiving adult 

diapers, until he received three boxes of Huggies in April 2019 when he was 

transferred from Suwannee Correctional Institution to Northwest Florida Reception 

Center (‘NWFRC’). 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 leave the law library and chapel. Id. 

Plaintiff sues the Secretary in his official capacity only. Id. at 2. For relief, 

he seeks declaratory and injunctive relief to provide him with pediatric diapers, and 

compensatory, punitive, and nominal damages totaling $275,000. Id. at 8.

STATEMENT OF MATERIAL UNDISPUTED FACTS3

1. Plaintiff has a pass for a permanent wheelchair. He has been diagnosed as 

paraplegic. Paraplegia is when there is paralysis of the lower extremities (unable 

to move) typically due to spinal injury or disease. [Exs. A, B]4

2. The medical records document that Plaintiff is incontinent of feces and has 

an ileal conduit which diverts urine into a bag/pouch. He currently has a pass/order

3

 References to CM/ECF documents will be to the specific filed Document number, i.e. [Doc. _]. 

References to the Exhibits attached hereto will be to the Exhibit number, i.e. [Ex. _]. 

4 Ex. A is Kellie Caswell’s ‘Declaration.’ Ex. B is the ‘Review of Medical Records Pertaining to 

(Plaintiff) referenced in her ‘Declaration.’

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to issue him one (1) package of small diapers per week. This order was written on 

01/28/2022. [Id.]

3. Medical records document that Plaintiff hoarded diapers and supplies, 

including some Huggies diapers. On September 17, 2014, the ARNP documented

"he is clearly not using them on a daily basis". According to the weight range on a 

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

approximately 35 lbs. and a Size 5 has a weight range of 27 pounds. [Id.]

4. On March 8, 2015, Plaintiff was measured due to his requests for Mickey

Mouse diapers. His waist was 28.25". When he requested the diapers, he was

not wearing any brief, diaper, or underwear, according to the documentation.

[Id.]

5. Plaintiff was offered the smallest brief (waistsize 20" to 32") but

he refused. [Id.]

6. Plaintiff returned to the supply window on March 22, 2015, asking for

pediatric diapers. It was requested that he obtain a medical pass and return for

hissupplies. The documentation statesthat he never returned with a pass. [Id.]

7. Plaintiff was measured on January 21, 2016, his waist was 29".

According to the Inpatient History and Physical completed on June 2, 2021, 

he weighed 116 pounds and is 5'10". [Id.]

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8. His waist was measured again on 05/09/2022 and was 25". He was

weighed most recently on 06/09/2022 and weighed 123 pounds. [Id.]

9. According to the medical records Nurse Caswell reviewed, there is not a 

documented medical reason for Plaintiff to need pediatric diapers. According to 

his last weight and measurement, the small brief that he has available should fit 

his frame appropriately. [Id.]

10. Plaintiff was seen in sick call on 06/08/2022 and the practitioner 

documented that the diaper he was wearing fit appropriately. [Id.]

11. In his Complaint [Doc. 1], Plaintiff alleges that he is required to have 

pediatric diapers to avoid periodic recurring open sores by ill-fitting adult diapers. 

[Id.]

12. In the medical records that Nurse Caswell reviewed, it was 

documented many times that Plaintiff was able to change positions and tum 

himself (this is done when in bed or in a chair to avoid ulcers due to pressure) and 

he had multiple wound assessments where no wounds were documented. [Id.]

13. On February 19, 2021, Plaintiff did have a Stage 2 sacral wound. A

Stage 2 wound (pressure ulcer) is typically superficial and presents as an abrasion 

or blister. [Id.]

14. At that time, he was admitted to RMC for other reasons There were 

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additional wound assessments completed after this date, and no wounds were 

present. [Id.]

15. Plaintiff’s skin is ordered to be checked monthly. His last skin check 

was on 06/02/2022 where there was no documentation of skin redness or 

breakdown. His Braden scale was 16, which indicates he is at mild risk for skin 

breakdown. [Id.] 

MEMORANDUM OF LAW

I. Standard for Summary Judgment. 

Summary judgment is proper if the pleadings and sworn statements show that 

there is no genuine issue as to any material fact and that the moving party is entitled 

to judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; Celotex Corp. v. Catrett, 

477 U.S. 317, 322, 106 S. Ct. 2548 (1986). After the movant brings evidence to 

demonstrate that lack of a case for each element of the claim(s), the nonmovant must 

provide evidence to dispute each element, id. at 322, where all reasonable inferences, 

not implausible inferences, are made in that party’s favor. Cuesta v. School Bd. of 

Miami-Dade County, 285 F.3d 962, 970 (11th Cir. 2002). To create an issue of fact 

for trial sufficient to defeat a well-support summary judgment motion, the nonmovant’s evidentiary material must consist of more than conclusory, uncorroborated 

allegations from an affidavit or deposition. West v. Higgins, 346 Fed. Appx. 423, 

425 (11th Cir. 2009) (unreported op.) (citing Early v. Champion Int’l Corp., 907 F. 

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2d 1077, 1081 (11th Cir. 1990)). For the factual issues to be genuine, they must 

have a real basis in the record, and cannot be based merely on unsupported factual 

allegations. Earley, 907 F.2d at 1081. 

The Supreme Court has further stated that if “two parties tell different stories 

[where one] is blatantly contradicted by the record, so that no reasonable jury could 

believe it, a court should not adopt that version of the facts for purposes of ruling on 

a motion for summary judgment. Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769 

(2007); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2548 

(1986); Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013). Ultimately, 

“[t]he nonmovant need not be given the benefit of every inference but only of every 

reasonable inference.” Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th 

Cir. 1988) (emphasis added).

 In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986), the U.S. 

Supreme Court, in pertinent part, stated: 

“at the summary judgment stage the judge's function is not himself to weigh the 

evidence and determine the truth of the matter but to determine whether there is a 

genuine issue for trial... there is no issue for trial unless there is sufficient

evidence favoring the nonmoving party for a jury to return a verdict for that party.” 

(Emphasis added). 

At the summary judgment stage, facts must be viewed in the light most 

favorable to the nonmoving party only if there is a “genuine” dispute as to those 

facts. Fed. Rule Civ. Proc. 56(c). “[W]hen the moving party has carried its burden 

under Rule 56(c), its opponent must do more than simply show that there is some 

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metaphysical doubt as to the material facts .... Where the record taken as a whole 

could not lead a rational trier of fact to find for the nonmoving party, there is no 

‘genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 

U.S. 574, 586–587, (footnote omitted). “[T]he mere existence of some alleged 

factual dispute between the parties will not defeat an otherwise properly supported 

motion for summary judgment; the requirement is that there be no genuine issue 

of material fact.” Liberty Lobby, supra at 247-248. “The mere scintilla of evidence 

in support of the [non-movant’s] position will be insufficient. Id. at 252. 

II. Plaintiff Does Not Meet the Requirements to Prove a Claim Pursuant to 

the Americans with Disabilities Act and the Rehabilitation Act. 

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). See, e.g., Alexander v. Choate, 

469 U.S. 287, 300-01 (1985) (refusing to make reasonable accommodations, 

including making changes to applicable rules or policies, when necessary, is 

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tantamount to denying access to a covered program or service). And it is well settled 

that Title II of the ADA applies to inmates in state prisons. See, Pa. Dep’t of Corr. 

v. Yeskey, 524 U.S. 206, 209, 213 (1998). 

Under the ADA and RA, and in order to establish a prima facie case, the 

Plaintiff must show: (1) that he is a qualified individual with a disability; (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 a public 

entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason 

of his disability. Bircoll v. Miami–Dade County, 480 F.3d 1072, 1083 (11th 

Cir.2007). An ADA claim may proceed on the theory that the Defendant failed to 

reasonably accommodate the Plaintiff's disability. See Schwarz v. City of Treasure 

Island, 544 F.3d 1201, 1212 n. 6 (11th Cir.2008); Lonergan v. Florida Dept. of 

Corr., 623 Fed. Appx. 990, 992 (11th Cir. 2015). The standard for determining 

liability is the same under Section 504 of the Rehabilitation Act. See, Siskos v. 

Secretary, Department of Corrections, 817 Fed. Appx. 760 (11th Cir. 2020).

III. Plaintiff Cannot Recover Compensatory or Punitive Damages Under the 

ADA.

“In order to recover compensatory damages under the [ADA], a plaintiff must 

demonstrate ‘intentional discrimination or bad faith.’” Badillo v. Thorpe, 158 Fed. 

Appx. 208, 214 (11th Cir. 2005). “In other words, ‘good faith attempts to pursue 

legitimate ends are not sufficient to support an award of compensatory damages 

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under the ADA.’” Id. at 214. Punitive damages are not recoverable under Title II of 

the ADA. Barnes v. Gorman, 536 U.S. 181, 189 (2002).

In this case, Plaintiff is not entitled to compensatory damages. There has been 

no intentional discrimination or bad faith on the part of Defendant, as Plaintiff has 

been afforded several accommodations, including adult diapers to help him 

accommodate his incontinence issues. See Exs. A, B. See, also, Walker v. Florida, 

2014 WL 1017933, *4 (N.D. Fla. 2014) (finding that several attempted 

accommodations – though not what the Plaintiff was asking for – demonstrated the 

lack of bad faith). As a result, Plaintiff’s claims for damages under the ADA must 

fail. 

IV. Defendant has Made Reasonable Accommodations to Accommodate

Plaintiff’s Disability. 

A “qualified individual with a disability” is defined under the ADA as “an 

individual with a disability who, with or without reasonable modifications to rules, 

policies, or practices, the removal of architectural, communication, or transportation 

barriers, or the provision of auxiliary aids and services, meets the essential eligibility 

requirements for the receipt of services or the participation in programs or activities 

provided by a public entity.” 42 U.S.C. &12131 (2) (1990). For purposes of the 

ADA, a disability is: “(A) a physical or mental impairment that substantially limits 

one or more major life activities of [an] individual; (B) a record of such an 

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impairment; or (C) being regarded as having such an impairment. 42 U.S.C. 

&12102(2) (1990).

When evaluating whether an impairment substantially limits a major life 

activity, courts consider: “(1) the nature and severity of the impairment; (2) the 

duration or expected duration of the impairment; and (3) the permanent or long-term

impact, or the expected permanent or long-term impact of or resulting from the 

impairment.” Gordon v. E.L. Hamm & Assoc., Inc., 100 F. 3d 907, 911 (11th Cir. 

1996). However, “[a] physical impairment, standing alone, is not necessarily a 

disability as contemplated by the ADA.” (Id.)

Even assuming that Plaintiff is a ‘qualified individual with a disability’, his 

claim should fail in light of the ‘reasonable accommodation’ which Defendant has 

made to accommodate his disability. As demonstrated in the Declaration of Kellie 

Caswell, RN, and Legal Nurse Consultant for FDC, she has reviewed Plaintiff’s 

medical records and concluded that “...there is not a documented medical reason for 

Mr. Seymour to need pediatric diapers. According to Mr. Seymour’s last weight and 

measurement, the small brief that he has available should fit his frame appropriately. 

Mr. Seymour was seen in sick call on 06//08/2022 and the practitioner documented 

that the diaper he was wearing fit appropriately.” (Ex. A, pg. 2, parag. 9.) 

And as to Plaintiff’s allegations that he needs pediatric diapers to avoid 

periodic recurring open sores, Nurse Caswell states: “...it was documented many 

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times that Mr. Seymour was able to change positions and turn himself...and he had 

multiple wound assessments where no wounds were documented.” (Ex. A, pg. 2, 

parag. 10). 

Nurse Caswell further describes that Plaintiff’s medical records document that 

he has ‘hoarded’ diapers and supplies; was not using Huggies on a daily basis; and 

has refused the smallest brief size available. (Id., pg. 2, parags. 7, 8.) 

Thus, the evidence presented herewith demonstrates that Defendant has 

fulfilled his legal obligation under the ADA and RA to offer Plaintiff ‘reasonable 

accommodation’ to his disability, but Plaintiff has refused to avail himself of that 

accommodation. Summary judgment is thus appropriate for Defendant herein. 

Respectfully Submitted,

ASHLEY MOODY

ATTORNEY GENERAL

/s/ Joe Belitzky

Joe Belitzky

Senior Assistant Attorney General

Florida Bar No. 217307

Office of the Attorney General

The Capitol, Suite PL-01

Tallahassee, Florida, 32399

Telephone: (850) 414-3300

Facsimile: (850) 488-4872

Joe.Belitzky@myfloridalegal.com

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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 14, 2022 

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

Butler, FL 32054.

 

 /s/ Joe Belitzky

Joe Belitzky

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