NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LARRY WILLIAM CORTINAS, 

Plaintiff-Appellant, 

 v. 

M. PORTILLO, Correctional Officer; et al., 

Defendants-Appellees.

No. 15-17174 

D.C. No. 

1:13-cv-01229-AWI-SAB 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted August 13, 2018

San Francisco, California

Before: BEA and MURGUIA, Circuit Judges, and SOTO,** District Judge.

Plaintiff-Appellant Larry William Cortinas appeals the district court’s 

decision to dismiss his 42 U.S.C. § 1983 action for failure to exhaust his 

administrative remedies according to the Prison Litigation Reform Act (“PLRA”), 

42 U.S.C. § 1997e(a), and the district court’s decision to deny Cortinas’ motion for 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable James Alan Soto, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

OCT 31 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 15-17174 

discovery and motion to continue his evidentiary hearing. We have jurisdiction 

pursuant to 28 U.S.C. §§ 1331, 1291, and for the reasons explained below, we 

affirm. 

1. We review a district court’s legal rulings on exhaustion de novo, but 

we review the district court’s factual findings on disputed issues of material fact 

for clear error. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). 

Under the PLRA, prisoners must exhaust all available administrative remedies 

prior to bringing a lawsuit related to prison conditions. 42 U.S.C. § 1997e(a). 

Failure to exhaust is an affirmative defense, which defendants must plead and 

prove. Jones v. Bock, 549 U.S. 199, 211–12 (2007). A prisoner is excused from the 

exhaustion requirement if the administrative remedies are effectively unavailable 

to the prisoner. See Ross v. Blake, 136 S. Ct. 1850, 1858–59 (2016); Nunez v. 

Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010). In Sapp v. Kimbrell, 623 F.3d 813, 

823 (9th Cir. 2010), the Ninth Circuit held that improper screening of an inmate’s 

administrative grievances renders administrative remedies effectively unavailable. 

Id. In other words, according to Sapp, if “prison officials screen out an inmate’s 

appeals for improper reasons, the inmate cannot pursue the necessary sequence of 

appeals, and administrative remedies are therefore plainly unavailable.” Id.

Cortinas first argues that his administrative remedies were “effectively 

unavailable” to him under Sapp because his appeal was improperly screened.
3 15-17174 

Cortinas’ appeal was cancelled because he purportedly refused to comply with a 

mandatory interview at the second formal level of review, but Cortinas contends 

that he never refused to be interviewed. Indeed, Cortinas asserts that he was never 

informed of the interview or otherwise asked to be interviewed. And, the district 

court found that defendants failed to carry their burden to prove that Cortinas 

refused to be interviewed at the second level of review, and therefore, that the 

prison officials properly cancelled Cortinas’ appeal.1

However, on these facts, defendants’ failure to conduct the mandatory 

interview did not excuse Cortinas’ obligation to exhaust available administrative 

remedies. The Ninth Circuit has explained that “[t]he obligation to exhaust 

‘available’ remedies persists as long as some remedy remains ‘available.’” Brown 

v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original). Here, some 

remedy was available to Cortinas because he could have appealed his improper 

cancellation. See California Code of Regulations, Title 15 § 3084.6(a)(3) and (e) 

(inmate can appeal cancellation decision separately pursuant to the rules in § 

3084.6(c), and if inmate prevails, cancelled appeal can be considered at the 

 

1 Officer D.B. Hernandez attempted to interview Cortinas but did not speak with 

Cortinas directly. Instead, the officer in Cortinas’ unit informed Officer Hernandez 

that Cortinas refused to be interviewed. It is unclear why the investigating officer 

did not speak with Cortinas directly, or why there is not a procedure in place to 

document a prisoner’s refusal to participate, such as a signature on a form. Indeed, 

it appears this improper cancellation of Cortinas’ appeal could have been avoided 

if some simple procedures were put in place. 
4 15-17174 

discretion of the appeals coordinator). Because Cortinas could have appealed his 

cancellation decision, this case is distinguishable from Sapp, and the improper 

cancellation of his appeal did not render administrative remedies effectively 

unavailable to him. See Wilson v. Zubiate, No. 16-16621, 718 F. App’x 479, 482 

(9th Cir. 2017) (“[Plaintiff] had the possibility of appealing the cancellation 

decision and therefore cannot show that he was ‘thwarted by improper screening’ 

under Sapp, 623 F.3d at 823.”).

2. Cortinas also argues that even though prison regulations permitted 

him to appeal the improper cancellation, this administrative remedy was effectively 

unavailable to him because the prison failed to provide proper notice of how to 

appeal the improper cancellation. Specifically, Cortinas claims that he never 

received a letter, dated July 30, 2012, which was purportedly attached to his 

returned appeal, and explained that he could appeal his cancellation decision. 

According to Cortinas, he therefore did not know the steps required to appeal his 

improper cancellation. 

However, there is sufficient evidence in the record to suggest that Cortinas 

received adequate notice of the appeals options and therefore that this remedy was 

available to him. “Relevant evidence in [demonstrating that some relief remains 

available includes] statutes, regulations, and other official directives that explain 

the scope of the administrative review process; documentary or testimonial 
5 15-17174 

evidence from prison officials who administer the review process; and information 

provided to the prisoner concerning the operation of the grievance procedure[s] . . . 

.” Valoff, 422 F.3d at 937. 

The district court concluded that this administrative remedy was available to 

Cortinas for several reasons. First, the district court concluded that Cortinas did 

receive the July 30, 2012 letter, which informed him of the option to appeal his 

cancellation. The district court stated that its conclusion was based on the customs 

and practice of the Office of Appeals, which state that when an appeal is returned 

to an inmate a decision letter is attached.

2 The district court also based its 

conclusion on the Magistrate Judge’s finding that Cortinas had previously filed 18 

appeals to the third level, each of which notified him of his right to appeal, and 

Cortinas’ own admission that he received the third level rejection referencing “see 

attached letter.”

 

2 Under the circumstances of this case, the “custom and practice” of the Office of 

Appeals is weak evidence to support that Cortinas received the July 30, 2012, as 

any person who has sent an email without attaching a required document can attest. 

The district court also relied on Cortinas’ receipt of the rejection notification that 

clearly stated “see attached Third Level response” and that Cortinas had previously 

filed 18 appeals to the third level. It seems as though prisons could avoid this issue 

by implementing simple policies to better ensure that prisoners receive all 

necessary correspondence related to their appeals. For example, in this case, 

defendants would not have needed to rely on such evidence if the prison asked 

prisoners to sign for their letters with a confirmation of attachment or number of 

pages. 
6 15-17174 

Second, the district court concluded that this administrative remedy was 

available to Cortinas based on the fact that Cortinas had filed previous appeals to 

the third level, which would have contained decision letters referencing the 

relevant regulations for appealing his cancellation. And, Cortinas received his 

cancelled appeal for this case, which stated “see attached Third Level response.” 

Moreover, the relevant procedures and regulations were published and available in 

the prison library. Even if inmates have limited time to research, Cortinas would 

have had the citation to the relevant procedures from his past cancelled appeals, 

and this citation would have provided an appropriate and efficient starting point. 

Because the district court concluded that Cortinas received the July 30, 2012 

letter, and because of the evidence that the applicable regulations were published in 

the prison library and Cortinas had received cancellation decisions in the past, this 

Court finds that the administrative remedy was available to Cortinas and we affirm 

the district court’s ruling that Cortinas failed to exhaust his available administrative 

remedies. 

3. Finally, Cortinas argues that the district court abused its discretion in 

denying Cortinas’ motion for discovery and motion to continue the evidentiary 

hearing. “A district court is vested with broad discretion to permit or deny 

discovery, and a decision ‘to deny discovery will not be disturbed except upon the 

clearest showing that the denial of discovery results in actual and substantial 
7 15-17174 

prejudice to the complaining litigant.’” Laub v. U.S. Dep’t of Interior, 342 F.3d 

1080, 1093 (9th Cir. 2003) (citing Hallett v. Morgan, 287 F.3d 1193, 1212 (9th 

Cir. 2002)). Additionally, “[t]he decision to grant or deny a requested continuance 

lies within the broad discretion of the district court, and will not be disturbed on 

appeal absent clear abuse of that discretion.” United States v. Flynt, 756 F.2d 1352, 

1358 (9th Cir. 1985).

Cortinas failed to demonstrate that the district court’s denial of his request 

for additional discovery of defendants’ privileged documents prejudiced him 

because he failed to assert what he would have discovered had he been given the 

additional discovery. Mere speculation of prejudice is insufficient to overturn a 

discovery ruling. See Martel v. Cty. of Los Angeles, 56 F.3d 993, 996 (9th Cir. 

1995). Moreover, during the hearing, Cortinas agreed to allow the district court to 

review the privileged discovery in camera rather than reviewing it himself. 

Therefore, the district court did not abuse its discretion in denying Cortinas’

motion for discovery. 

Additionally, Cortinas failed to demonstrate that he suffered prejudice as a 

result of the denial of his request for a continuance. To obtain reversal based on 

denial of a motion to continue, the appellant must “show at a minimum that he has 

suffered prejudice as a result of the denial of his request.” Flynt, 756 F.2d at 1359 

(citations omitted). According to Cortinas, a continuance “would have provided 
8 15-17174 

[him] with an ample amount of time to scour [additional discovery] for everything 

that was relevant to his evidentiary hearing” and might have “uncovered” more 

reasons why his “administrative remedies were effectively exhausted.” Cortinas 

does not explain what that evidence might have been. We will not find abuse of 

discretion unless, after carefully evaluating several factors, we conclude that the 

denial was “arbitrary or unreasonable.” Id. at 1358. Therefore, this Court finds that 

the district court did not abuse its discretion in denying Cortinas’ motion for 

discovery and motion to continue the evidentiary hearing. 

AFFIRMED.
 

Cortinas v. Portillo, No. 15-17174 

Bea, Circuit Judge, concurring:

I concur with the majority’s disposition in this case. I write separately to 

explain my concerns with the sentiment expressed in the footnotes.

In essence, the footnotes suggest that the prison would be well-served to 

implement a system in which prisoners sign forms to indicate 1) their refusal to 

participate in an interview; or 2) their receipt of all necessary correspondence 

related to their appeals. I would refrain from such speculation.

In the California Department of Corrections, administrative appeals are 

assigned a log number and recorded in a computerized database called the 

Inmate/Parolee Appeals Tracking System. That system is managed by the Appeals 

Coordinator at each prison, who reports to the Office of Appeals in Sacramento. 

Here, the Department of Corrections supplied records showing forty-four appeals 

filed by Cortinas, ten of which had been “screened out” and twenty-six of which 

were either pending review or rejected on the merits. For each appeal that had been

“screened out,” the records indicated a reason—such as “missing documentation” 

or “exhaust[ion]”—logged, presumably, by the prison staff.

Would it be beneficial for prisoners to sign when refusing an interview? 

Would it help if the Department of Corrections required prisoners to sign for every 

FILED

OCT 31 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
document, confirm the number of pages received, and upload that to the 

Inmate/Parolee Appeals Tracking System? Perhaps. But perhaps there are valid 

reasons for not instituting such a system, based on considerations of cost, prison 

safety, or administrative practice. Prison administration is an area in which we lack 

expertise. To paraphrase the Supreme Court’s guidance in the educational context, 

given our “lack of specialized knowledge and experience,” the “judiciary is well 

advised to refrain” from opining on such matters. San Antonio Indep. Sch. Dist. v. 

Rodriguez, 411 U.S. 1, 42 (1973).
 

Cortinas v. Portillo, No. 15-17174

Murguia, Circuit Judge, concurring:

I concur in the majority’s disposition but write separately to note that I 

would not rely on the district court’s factual conclusion that Cortinas received the 

July 30, 2012 letter explaining that Cortinas could appeal his improper 

cancellation. The district court concluded that Cortinas received the July 30, 2012 

letter in part because it is the custom and practice of the prison’s Office of Appeals 

that when an appeal is returned to an inmate, a decision letter is attached. As the 

memorandum disposition notes, that it is the “custom and practice” of the Office of 

Appeals to attach the letter is not necessarily evidence that the letter was attached 

in this case. Asking Cortinas to prove that he did not receive the letter in this case 

would require Cortinas to prove a negative. However, because Cortinas did in fact 

receive cancelled appeals in the past that referenced the relevant regulations, had 

access to the prison library where the applicable regulations about appealing his 

cancellation decision were published, and received his cancelled appeal in this 

case, I agree that the administrative remedy of appealing his cancellation decision 

was effectively available to him. And, because Cortinas failed to exhaust this 

administrative remedy, I agree that the district court properly dismissed Cortinas’ 

action. 

FILED

OCT 31 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS