United States District Court, W.D. Virginia, Roanoke Division
E. Conrad Senior United States District Judge.
Paul Desper, a Virginia inmate proceeding pro se, filed this
civil rights action pursuant to 42 U.S.C. § 1983. He
contends that by denying him visitation with his minor
daughter since 2015, the defendants have violated his
constitutional rights under the Association Clause of the
First Amendment and the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. By opinion and order
entered January 29, 2019, the court granted the
defendants' motion to dismiss and denied Desper's
motion for summary judgment. Desper has moved for
reconsideration of that ruling. After review of the motion
and the record, the court will deny the motion.
has been in prison since September 2009, serving sentences
imposed for three convictions of forcible rape through the
mental incapacity or helplessness of the victim, involving an
18-year-old woman, who was determined to have the overall
mental capacity of an eight-year-old child. See Desper v.
Commonwealth, No. 2116-10-3, 2011 WL 5346030 (Ct. App.
Nov. 8, 2011). Desper's mother, Glenda Desper
("Glenda"), has legal and physical custody of his
minor daughter, K.D., who was not the victim of Desper's
sexual offenses. Between September 2009 and December 2015,
Desper was allowed prison visitation with K.D.
March 1, 2014, the Virginia Department of Corrections
visitation regulations in Operating Procedure
("OP") 851.1 changed. Section IV(C)(12) of OP 851.1
provided that "[o]ffenders with any conviction requiring
registration in the Sex Offender and Crimes against
Minors Registry will not be allowed to visit with any
minor until granted a sex offender visitation
exemption." Compl. Ex. 2, ECF No. 1-2. The procedure
allows exemptions for a sex offender inmate to visit with his
biological child only if that child was not a victim of his
crimes and the offender applies for and is granted an
exemption. The exemption process involves a lengthy
questionnaire for the child's custodian and an assessment
of the inmate, including a Mental Status Evaluation
("MSE"), review of the inmate's personal,
social, and sexual history, and an "actuarial
assessment." IcL The evaluator reviews all these
materials and forwards them to the Sex Offender Visitation
Committee, whose members recommend approval or disapproval of
the exemption. A designated prison administrator makes the
final decision, which cannot be appealed. After one year, the
inmate may reapply for a sex offender visitation exemption.
first learned in February 2016 that officials had removed
K.D. from his list of approved visitors. In March 2016, and
again in 2017, Desper and Glenda applied unsuccessfully for
an exemption. They were dissatisfied with the notice they
received after disapproval of their applications. Desper has
also complained that exemptions for visitation with minor
children have been approved for other sex offenders, who are
confined for similar or more serious crimes.
Desper signed and dated his motion for reconsideration within
28 days from entry of the judgment, the court construes it as
arising under Rule 59(e) of the Federal Rules of Civil
Procedure. It is well established that "reconsideration
of a judgment after its entry is an extraordinary remedy
which should be used sparingly." Pac. Ins. Co. v.
Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998) (internal citations and quotation marks omitted). A
judgment may be amended under Rule 59(e) in only three
circumstances: "(1) to accommodate an intervening change
in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice." Pacific Ins. Co. v. Am.
Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir.1998). The court has carefully reviewed Desper's
motion and concludes that it does not present any
circumstance warranting the requested relief.
motion does not point to any intervening change in the law or
offer facts not available to him during the pendency of the
motion to dismiss. He complains that the court did not permit
him to engage in discovery. Because a motion to dismiss tests
the sufficiency of the pleadings, Desper was not entitled to
discovery before the court decided the defendant's
motion. Moreover, he fails to identify any information that
lack of discovery prevented him from obtaining with which he
could have persuaded the court to reach a different outcome
in the case. Thus, the court finds no basis for granting Rule
59(e) relief under the first two factors in Pacific
also contends that the court erred in failing to appoint
counsel to represent him in this case. "Under Section
1915(d) a plaintiff does not have an absolute right to
appointment of counsel. Miller v. Simmons, 814 F.2d
962, 966 (4th Cir. 1987). While the district court may
request that counsel undertake representation of a litigant,
it is not an abuse of discretion not to do so unless the
plaintiff demonstrates "that his case is one with
exceptional circumstances." Id. In denying
Desper's two motions seeking appointment of counsel, the
court did not find that his case fell into this category. The
court continues to believe that these motions were
appropriately denied. Therefore, the court cannot find that
the failure to appoint counsel was a clear error of law or
rendered any manifest injustice such that relief under Rule
59(e) is warranted.
next argument Desper makes is that the court improperly
denied his motion for summary judgment without permitting the
discovery that he sought. The court determined from the
pleadings, however, that Desper's complaint did not state
any plausible constitutional claim. As such, he could not be
entitled to relief under § 1983 "as a matter of
law" so as to warrant summary judgment in his favor.
Desper reargues each of his constitutional claims, asking the
court to reopen the case and decide it in his favor. After
review of his contentions, the court is satisfied that the
motion to dismiss was properly granted. Accordingly, the
court will deny Desper's Rule 59(e) motion. An
appropriate order will issue herewith.
Clerk is directed to send copies of this memorandum opinion
and accompanying order to the parties.
 The defendants' responses in
opposition to Desper's motion for summary judgment and
his motion for interlocutory injunctive relief included sworn
affidavits and other documentation. In considering the
defendants' motion to dismiss, however, the court did not
consider any of these matters outside the pleadings. On that