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.

_______________________________/

MOTION TO DISMISS

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

Corrections, by and through the undersigned counsel and pursuant to Rule 12(b) of 

the Federal Rules of Civil Procedure, moves to dismiss the Plaintiff’s Complaint 

(ECF No. 1) for failure to state a claim upon which relief can be granted, and in 

support of the Defendant’s motions, 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 a 

fourteen-year sentence for eighty-three (83) convictions for possession of child 
2

pornography. His estimated release 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.

5. After three extensions, including one sua sponte, the Secretary’s response is due 

by July 23, 2021. See ECF Nos. 16, 21

The Plaintiff alleges the following:

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. ECF No. 1 at 5. After being convicted for the above-referenced 

offenses, 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 

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

Gary L. DC# T77153.
3

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 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.

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

the Plaintiff requests declaratory and injunctive relief to provide him with pediatric 

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

8.

Memorandum of Law

I. Motion to Dismiss Standard

“[T]o survive a motion to dismiss, a complaint must contain sufficient matter 

. . . to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 
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U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S 544, 570 

(2007). The plausibility requirement requires more than the possibility a defendant 

acted unlawfully. Iqbal, 556 U.S. at 678. A complaint that merely pleads facts 

consistent with liability does not meet the plausibility standard. Iqbal, 556 U.S. at 

678. To meet the plausibility standard, facts must raise a right to relief above the 

speculative level. Twombly, 550 U.S. at 555. Federal pleading rules require a 

complaint to provide sufficient notice to a defendant regarding the causal connection 

between him and the plaintiff’s claim. Dura Pharmaceuticals, Inc. v. Broudo, 544 

U.S. 336, 347 (2005). 

Conclusory factual allegations, unwarranted deductions, claims that are 

internally inconsistent or can be disproven by facts of which the court can take 

judicial notice, and legal conclusions are not accepted as true for the purposes of a 

motion to dismiss. Ellen S. v. Fla. Bd. of Bar Examiners, 859 F. Supp. 1489, 1492 

(S.D. Fla. 1994) (citations omitted). “[A] plaintiff’s obligation to provide the 

‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, 

and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. 

at 555. “‘[N]aked assertions’ devoid of ‘further factual enhancement’” or 

“[t]hreadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Iqbal, 556 U.S. 678 (quoting Twombly, 550 

U.S. at 555, 557). While pro se litigants are entitled to the benefit of having their 
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pleadings liberally construed, a court cannot “act as de facto counsel for a party” or 

“rewrite an otherwise deficient pleading in order to sustain an action.” GJR 

Investments, Inc. v. County of Escambia, Fla., 132 F. 3d 1359, 1369 (11th Cir. 1998) 

(overruled on other grounds by Iqbal).

II. Failure to State a Claim – Respondeat Superior

Within Plaintiff’s Complaint, Plaintiff alleges that the Secretary is liable to 

Plaintiff based on respondeat superior or vicarious liability. ECF No. 1 at 5. The Plaintiff 

does not allege that the Secretary personally participated or directed the alleged actions 

of correctional officers against him, but the Plaintiff attempts to assert liability against 

the Secretary merely by claiming that the Secretary is liable for failing to prevent 

alleged violations committed by other correctional staff. Id. Plaintiff’s claims do not 

allow for claims against the Secretary as the Secretary did not personally participate, 

approved, directed, or otherwise actively condone in the alleged actions made against 

the Plaintiff by correctional officers. See e.g. Thompson v. Willis, 2016 WL 5339362, 

*2 (N.D. Fla. 2016) (“[f]iling a grievance with a supervisory person does not alone 

make the supervisor liable for the allegedly violative conduct brought to light by the 

grievance.”). See also Noel v. Hart, 2013 WL 819736, *1 (S. D. Ga. 2013) (noting that 

“[a]n allegation that a grievance was filed with supervisory personnel is an insufficient 

basis for liability in a section 1983 cause of action.”); Haverty v. Crosby, 2006 WL 

839157, *5 (N.D. Fla. 2006) (reasoning that a supervisor is not liable for conduct 

brought to his or her attention by a grievance form, unless the knowledge imputed to 
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the supervisor and the refusal to prevent the harm rises to the level of a custom, policy, 

or practice.). 

Rather, to the extent that Plaintiff is attempting to allege that the Secretary is 

liable based on the doctrines of respondeat superior or vicarious liability, such claims are 

unavailable. See Harvey v. Harvey, 949 F. 2d 1127, 1129 (11th Cir. 1992) (citing 

Monell v. Dep’t of Soc. Srvcs., 436 U.S. 658 (1978)). See also Collins v. City of Harker 

Heights, 503 U.S. 115 (1992); Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). To 

be personally liable, the supervisory must either “personally participate in the alleged 

constitutional violation, or there is a causal connection between the actions of the 

supervisor and the alleged constitutional violation.” Gray ex rel. Alexander v. Bostic, 

458 F. 3d 1295, 1308 (11th Cir. 2006). See also Swint v. City of Wadley, 51 F. 3d 988, 

999 (11th Cir. 1995) (citing Rivas and Zalter; Rivas v. Freeman, 940 F. 2d 1491, 1495 

(11th Cir. 1991)); Zalter v. Wainwright, 802 F. 2d 397, 401 (11th Cir. 1986). An 

individual cannot be held liable for the omissions or actions of others, and a supervisor 

can only “be held liable for the actions of his subordinates under § 1983 if he personally 

participates in the act that causes the constitutional violation or where there is a causal 

connection between his actions and the constitutional violation that his subordinates 

commit.” Am. Fed’n of Labor v. City of Miami, 637 F. 3d 1178, 1190 (11th Cir. 2011). 

To demonstrate a causal connection, the Plaintiff must plead facts that plausibly 

show that the supervisor (a) had notice of a history of widespread abuse that he or she 

failed to correct; (b) initiated a custom or policy that resulted in a violation of Plaintiff’s 

constitutional rights; or (c) directed subordinates to act unlawfully or failed to stop 
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them from doing so. Cottone v. Jenne, 326 F. 3d 1352, 1360 (11th Cir. 2003). “The 

deprivations that constitute widespread abuse sufficient to notify the supervising 

officials must be obvious, flagrant, rampant and of a continued duration, rather than 

isolated occurrences.” Brown v. Crawford, 906 F. 2d 667, 671 (11th Cir. 1990). Vague 

and conclusory allegations are insufficient to support a claim for supervisory liability. 

Gonzalez v. Reno, 325 F. 3d 1228, 1235 (11th Cir. 2003). See also Hall v. Smith, 170 

F. App’x 105, 108 (11th Cir. 2006) (stating that “[b]ecause Hall alleged no factual 

support for his conclusory statement that the City had a policy or custom of grossly 

inadequate supervision and training of its employees, the district court did not err in 

dismissing Hall’s claims against the City”); Townsend v. Heard, 2016 WL 557844, *5 

(N. D. Ala. 2016) (dismissing the plaintiff’s supervisory liability claim because he 

alleged no facts to support his allegation that “[t]he defendants’ improper custom or 

policy that encouraged sexual misconduct and coercion amounted to deliberate 

indifferent to Plaintiff’s federal rights.”). Ultimately, “[t]he standard by which a 

supervisor is held liable in his individual capacity for the actions of a subordinate is

extremely rigorous.” Cottone, 326 F. 3d at 1360. Further,

“[b]ecause vicarious liability is inapplicable to ... [section] 1983 suits, a plaintiff must 

plead that each Government official defendant, through the official's own individual 

actions, has violated the Constitution.” Iqbal at 1948 (emphasis added). A plaintiff 

must plead that a defendant acted with “purpose rather than knowledge” to satisfy this 

standard. Id. at 1949.

Here, the Plaintiff allege that the Secretary is “fully aware that [the] plaintiff is 
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being denied proper ADA accommodations” because the Plaintiff filed grievances 

alleging the violation. ECF No. 1 at 5. As stated above, filing grievances or appeals 

with the supervisor does not state a claim for relief against the supervisor. The Plaintiff 

does not allege with any specificity that the Secretary directed, participated, or 

otherwise affirmatively condoned the actions or inactions of correctional officers who 

took his pediatric diapers. Moreover, the Plaintiff alleges two, isolated incidents where 

his pediatric diapers were taken away from him by correctional staff, but again, the 

Plaintiff fails to show how these two incidents make the Secretary liable for the actions 

of nonparties. The Plaintiff fails to state a claim against the Secretary for respondeat 

superior/vicarious liability, and the Complaint should be dismissed with prejudice.

III. Failure to State a Claim pursuant to the Americans with Disabilities Act 

and the Rehabilitative Act.

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. 
9

Appx. 990, 992 (11th Cir. 2015). The standard is the same under Section 504 of the 

Rehabilitative Act. 

A court assesses the complaint's well-pleaded allegations to determine if they 

state a plausible cause of action based upon the identified claim's elements. Iqbal, 556 

U.S. at 678. Plausibility ensues “when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged,” and the analysis involves a context-specific task requiring a court 

“to draw on its judicial experience and common sense.” Id. at 678-679. The 

plausibility standard does not equate to a “probability requirement,” yet it requires 

more than a “mere possibility of misconduct” or factual statements that are “merely 

consistent with a defendant's liability.” Id.

At the very least, the Plaintiff does not state claim, because he fails to allege that 

the exclusion, denial of benefit, or discrimination was by reason of his disability. The 

Plaintiff alleges that he is entitled to pediatric (Huggies or Pampers) diapers due to his 

small frame, is paraplegic, and wheelchair bound. Certainly, the Plaintiff, assuming 

his self-description is true for purposes of the Complaint, may be entitled to adult or 

even youth diapers if medical staff deems it medically necessary. But pediatric diapers?

The Plaintiff’s demand doesn’t pass the smell test and fails to comport with 

common sense and reality. The Plaintiff does not provide his height, weight, and 

unless he has been diagnosed with dwarfism, which he does not allege, and is the size 

of the average five to six-year-old child, pediatric diapers are not a reasonable 
10

accommodation he is entitled to, irrespective of whether he was previously permitted 

to have them or not. 

According to the Florida Department of Corrections’ website, the Plaintiff is 

serving time for 83 counts of possession of child pornography.

2

 Given his conviction 

history, the Plaintiff’s requests for pediatric diapers appears to be rooted in a 

nonmedical reason. Extra small adult diapers, or perhaps youth size, would be more 

appropriate for a small-framed adult rather than pediatric diapers. The Plaintiff 

complains that adult diapers are “ill-fitted”, but assuming that is true, he does not 

allege that he requested the smallest adult or youth diapers and that the Department 

failed to accommodate that requests. Moreover, common sense dictates than an extrasmall adult or youth-size diaper holds a larger amount of feces than a pediatric diaper. 

Providing this inmate with pediatric diapers is not a reasonable accommodation, and 

at the very least, he fails to allege that the denial was by reason of his disability. 

Therefore, the Plaintiff fails to state a cause of action under the ADA and RA, and his 

complaint should be dismissed with prejudice.

I certify that this motion contains less than 2700 words.

Respectfully Submitted,

ASHLEY MOODY

ATTORNEY GENERAL

2 McDowell Bey v. Vega, 558 Fed.Appx. 923, 927 (11th Cir.2014) (holding that a trial 

judge is not limited to the four corners of the complaint and may take judicial notice 

of facts contained in a report from a state agency to assist in making a determination 

on a parties’ motion to dismiss).
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/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

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