IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20285

Summary Calendar

MANDELL RHODES, JR.,

Plaintiff-Appellant

v.

NATHANIEL QUARTERMAN; BRAD LIVINGSTON; BECKY PRICE,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CV-2508

Before DAVIS, DeMOSS, and HAYNES, Circuit Judges. 

PER CURIAM:*

Mandell Rhodes, Jr., Texas prisoner # 307498, was convicted of aggravated

rape in 1980 and sentenced to 50 years of imprisonment. After Rhodes was

convicted, the aggravated rape statute was amended in 1981 and again in 1983,

and the offense became known as aggravated sexual assault. See Griffith v.

State, 116 S.W.3d 782, 787–88 (Tex. Crim. App. 2003); Lindsey v. State, 760

S.W.2d 649, 649–51 (Tex. Crim. App. 1988). Proceeding pro se and in forma

pauperis, Rhodes filed the instant 42 U.S.C. § 1983 complaint alleging that

United States Court of Appeals

Fifth Circuit

F I L E D

March 28, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 11-20285 Document: 00511803837 Page: 1 Date Filed: 03/28/2012
No. 11-20285

prison officials failed to consider his eligibility for administrative good conduct

time under the 1983 version of the Texas Prison Management Act (PMA)

(enacted due to prison overcrowding). Rhodes acknowledged that inmates

convicted of certain, listed offenses (which included aggravated sexual assault)

were excluded from eligibility for administrative good conduct time under the

1983 PMA. He argued, however, that aggravated rape was not one of those

listed offenses and that he was not disqualified from receiving administrative

good conduct time under the 1983 PMA. 

Rhodes’s notice of appeal is timely only as to the district court’s denial of

his second “motion for reconsideration.” See FED. R. APP. P. 4(a); see Halicki v.

La. Casino Cruises, Inc., 151 F.3d 465, 467–70 (5th Cir. 1998). The underlying

dismissal of Rhodes’s complaint and the denial of his first motion for

reconsideration are not properly before this court. See Charles L.M. v. Ne. Indep.

Sch. Dist., 884 F.2d 869, 870–71 (5th Cir. 1989); Ellis v. Richardson, 471 F.2d

720, 721 (5th Cir. 1973). 

Rhodes challenges the district court’s finding that “aggravated rape” and

“aggravated sexual assault” are the same offense for purposes of the 1983 PMA

and that he is therefore excluded from eligibility for administrative good conduct

time under the PMA. 

When the aggravated rape statute was amended in 1981 and 1983, it

expanded criminal liability rather than narrowing it. See Griffith, 116 S.W.3d

at 787–88; Lindsey, 760 S.W.2d at 649–51. There is no merit to Rhodes’s

argument that the conduct for which he was convicted in 1980 is not included in

the conduct prohibited by the 1983 version of the aggravated sexual assault

statute. See Griffith, 116 S.W.3d at 787–88. The district court did not abuse its

discretion in dismissing Rhodes’s complaint. See id. at 787; Seven Elves, Inc. v.

Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). 

AFFIRMED.

2

Case: 11-20285 Document: 00511803837 Page: 2 Date Filed: 03/28/2012