Enrique C. Lerma v. W. J. Estelle, Jr., Director, Texas Department of Corrections , 585 F.2d 1297 ( 1978 )

PER CURIAM:

Enrique Lerma, a Texas convict, having lost at an October, 1975 prison disciplinary hearing 360 days of “good time” credit and the right to accrue further good time, challenges the procedural protections afforded him at that hearing as constitutionally insufficient.¹ His hearing occurred after the Supreme Court, in Wolff v. McDonnell, 1974, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, held the Due Process clause of the Fourteenth Amendment applicable to the revocation of good time through state prison disciplinary proceedings. The District Court considered Lerma’s application for habeas corpus on its merits and denied relief.

On October 8, 1974, while Lerma and a group of other prisoners were weeding a soybean patch, an inmate shouted an obscenity at their supervisor, Shine. Shine said something to Lerma, indicating his belief that Lerma had shouted the obscenity. Lerma denied it, and Shine ordered him back to work. There were further words between the two: Lerma says he asked that Shine not shout at him; Shine says Lerma was disrespectful and disobeyed the order to return to work. Shine ordered Lerma removed from the squad, and reported the incident to another officer, who took Lerma to “administrative segregation.” Later that day, Lerma was brought before his unit’s disciplinary committee, and was charged with “Laziness: Failure to Work” and “Disrespectful Attitude,” both in violation of prison regulations. He was sentenced to 15 days in solitary confinement, forfeiture of 360 days of good time, and demotion from Class I to Class III status, which prevented him, until reclassified, from accruing further good time. It is uncontroverted that Lerma received no more than several hours’ notice of his hearing. At the hearing, Shine’s report was introduced and Lerma gave his version of the occurrence.

Under the then existing TDC regulations Lerma could have appealed the findings made or the penalties assessed at his hearing to the TDC Director. Upon appeal the Director could have revised either the findings or the penalty. Lerma did not appeal.

Twenty-one months later, June, 1976, Lerma unsuccessfully sought relief in state court. On October 28,1976, two years after the episode in the soybean field, Lerma filed his federal habeas petition.

In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court said:

It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures than the administration of its prisons. The relationship of state prisoners and the state officers who supervise their confinement is far more intimate than that of a State and a private citizen. For state prisoners, eating, sleeping, dressing, washing, working, and playing are all done under the watchful eye of the State, and so the possibilities for litigation under the Fourteenth Amendment are boundless. What for a private citizen would be a dispute with his landlord, with his employer, with his tailor, with his neighbor, or with his banker becomes, for the prisoner, a dispute with the State. Since these internal problems of state prisons involve issues so peculiarly within state authority and expertise, the States have an important interest in not being bypassed in the correction of those problems. Moreover, because most potential litigation involving state prisoners arises on a day-to-day basis, it is most efficiently and properly handled by the state administrative bodies and state courts, which are, for the most part, familiar with the grievances of state prisoners and in a better physical and practical position to deal with those grievances.

93 S.Ct. at 1837.

Immediately prior to this exposition of the law the Supreme Court had said:

The rule of exhaustion in federal habe-as corpus actions is rooted in considerations of federal-state comity. That principle was defined in Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971), as “a proper respect for state functions,” and it has as much relevance in areas of particular state administrative concern as it does where state judicial action is being attacked.

Rodriguez involved the same question we have here, that is, the loss of good time credit because of a violation of prison rules and regulations. We must therefore adhere to the view that in habeas corpus cases the exhaustion principle has as much relevance in areas of administrative concern as it does where state judicial action is being attacked.

It is admitted, as it has to be, that Lerma had an available administrative remedy had he seen fit to exercise it. He could have appealed to the Director, who was possessed of the authority to revise either findings or penalty. It is now argued, however, that such an appeal would likely have been futile. It seems, however, that this argument is speculative. Had an appeal been ignored, or decided adversely to Lerma, we might have been provided with solid ground upon which to justify federal intervention in state prison administration.

Since that has been prevented by Lerma’s failure to exhaust his clearly available administrative remedies we may not reverse the denial of habeas corpus relief.

We further observe, as the Supreme Court did in Rodriguez (93 S.Ct. 1832-1833) that the Habeas Corpus Statute, 28 U.S.C. § 2254(c), specifies that an applicant shall not be deemed to have exhausted the remedies available in the courts of the State if he has the right under the law of the State to raise by any available procedure (emphasis added) the question presented.

We affirm the denial of federal habeas corpus relief and remand the case to allow Lerma, if he so desires, to present his appeal to the Texas Director,

AFFIRMED and REMANDED.

1 . On September 14, 1971, a jury found Lerma, a known user of heroin, guilty of possessing heroin and assessed his punishment at confinement for 20 years in the Texas Department of Corrections. The conviction was affirmed, Ler-ma v. State, Tex.Cr.App., 491 S.W.2d 152 (1973).