United States District Court, E.D. Louisiana
HARRISON A. PARFAIT, JR.
TERREBONNE PARISH CONSOLIDATED GOVERNMENT
S. VANCE, UNITED STATES DISTRICT JUDGE
the Court is plaintiff Harrison A. Parfait, Jr.'s
prisoner complaint,  and his objections to the Magistrate
Judge's Report and Recommendation that his claims against the
Terrebonne Parish Consolidated Government be dismissed
without prejudice for failure to state a claim upon which
relief can be granted. The Court, having reviewed de
novo the complaint, the record, the applicable law, the
Magistrate Judge's Report and Recommendation, and
Parfait's objections thereto, hereby approves the
Magistrate Judge's Report and Recommendation and adopts
it as its opinion.
November 23, 2016, Parfait filed his complaint against
defendant under 42 U.S.C. § 1983. Plaintiff alleges that
he suffers from sleep apnea and needs to be treated with a
CPAP machine or he could suffer a heart attack.He further alleges
that despite notifying defendant of his sleep apnea and need
for treatment, defendant refuses to grant plaintiff access to
January 17, 2017, defendant moved to dismiss plaintiff's
complaint. The Magistrate Judge recommended granting
defendant's motion because plaintiff failed to allege
that his constitutional rights were violated as a result of a
policy or custom of defendant, much less identify such a
policy or custom.
filed four objections to the Magistrate Judge's Report
and Recommendation. First, he argues that the nurse who
allegedly denied him treatment told Parfait that she was
acting in accordance with defendant's custom and
policy. Second, he argues that regardless of any
custom or policy, defendant should be liable because the
workers who allegedly harmed Parfait were hired by and work
for the Terrebonne Parish Consolidated
Government. Third, he argues that he is still being
deprived of treatment, despite securing a doctor's
recommendation for treatment, and despite that other
prisoners allegedly have access to the CPAP machine he
seeks.Finally, he requests legal assistance to
help him further pursue his claims, which the Court construes
as a motion to appoint legal counsel.
objections are meritless. For the sake of clarity, the Court
will address plaintiff's objections out of order. First,
plaintiff's argument that regardless of any policy or
custom, defendant should be liable, flatly contradicts
Supreme Court precedent. As the Magistrate Judge correctly
pointed out, municipal entities like the Terrebonne Parish
Consolidated Government cannot be vicariously liable under 42
U.S.C. § 1983 for their employees' acts. See,
e.g., Connick v. Thompson, 563 U.S. 51, 60
(2011); Hinojosa v. Livingston, 807 F.3d 657, 668
(5th Cir. 2015). Holding defendant liable for the acts of its
employees simply because of the employer-employee
relationship is clearly impermissible under section 1983.
plaintiff's remaining two objections are based on
allegations that were not contained in his complaint and
therefore not before the Magistrate Judge when he made his
Report and Recommendation. Facts and issues raised for the
first time in a prisoner's objections a Magistrate
Judge's Report and Recommendation are not properly before
the district court. Flores v. Scott, 58 F.3d 637,
1995 WL 371237, at *2 (5th Cir. June 9, 1995); United
States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992).
Therefore, the Court need not address plaintiff's new
plaintiff requests legal counsel. A pro se, civil rights
plaintiff is not entitled to appointed counsel absent
“exceptional circumstances.” Lempar v.
Livingston, 463 F. App'x 268, 269-70 (5th Cir. 2012)
(citing Branch v. Cole, 686 F.2d 264, 266 (5th Cir.
1982)). Whether exceptional circumstances exist generally
depends on two considerations-“the type and complexity
of the case, and the abilities of the individual bringing
it.” Id. Plaintiff's claims do not present
any extraordinary circumstances, as the facts of his case are
relatively simple and not atypical of other pro se civil
rights claims. See Krause v. Leonard, 352 F.
App'x 933, 937 n.19 (5th Cir. 2009).
Parfait's claims against the Terrebonne Parish
Consolidated Government are DISMISSED WITHOUT PREJUDICE.
 R. Doc. 4.
 R. Doc. 28.