developmentally disabled meaning that per the record based on the assessments of his present psychiatrists he is functionally illiterate and if we review the record as just a few examples in pages forty four forty seven of the excerpts of record we can see that mr hopkins is handwritten forms and appeals are written and myriad different handwriting suggesting that he had other inmates complete his reading and writing tas for him mr hopkins is also mentally ill he has major depression he has ings i v and he has psychosis which have caused him per the record to hear the voices of god in the double to experience suicidal i on and to be placed on suicide watch numerous times well we know what his issues are but i'm also looking at the adaptive support logs and other evidence in the record show that he perceived d d p assistance virtually every day since the day he was enrolled in the g d p program what does hopkins present to refute this evidence i guess what more evidence should hopkins have received under clark and the a p a because it's really hard to a favor what specifically are you saying that he didn't get and that he that the law clearly entitles him to because he he kind of dead to enjoy a fair amount of success then fair it's not a situation where he didn't receive any assistance that's right your honor that it's not disputed that mr hopkins received some assistance and in the kind of a lot kind of a lot but there are on the records several where the the the record shows that mr hopkins was deprived of a meaningful access to several guarantee is under the clock against california remedial plan as one example the california secretary of her actions is mandated under clarke to provide mr hopkins with meaningful access to reading and writing and yet if you look at pages forty four dollars there are about forty seven  dollars of the excerpts of record there are several examples of mr hopkins going to the prison library asking for help receiving some help and then objecting saying he didn't receive enough or that it was inadequate and asking for super review and there's no evidence in the record that anyone actually went to mr hopkins or to the library afterwards to figure out what happened and as a much broader and i think more significant example of where there are material disputes on the record as to whether mr hopkins received meaningful access to support the clarke plan if you look at excerpts of record eleven through one thousand two hundred and twenty seven i guess what i'm saying is mr hopkins didn't get everything that he wanted and i'm not sure mr hopkins can ever get everything that he wanted but we have to look at the record that we have before us and i think that you can say and so we included that mr hopkins didn't get that that he didn't want something but it still if you look at everything we still have to show that i mean could at the end if that could it is there any juror that would convince that beacon fenced on the evidence that was presented and given him although san francisco he didn't get what he was entitled to under clark and the a t f i think so your honor and i'd like to point to one overarching example of this which obtained throughout mr hopkins as incarceration up to and after his being placed in the d d p and that is the fact that in order to read and write in order to participate in the prison grievance processes and to represent himself in the court below mr hopkins had to bribe other inmates with food and with care packages from home and with money and with his prison canteen in order to obtain those basic necessities that the prison was supposed to provide to him and this puts mr hopkins at a unique risk throughout his incarceration because as dr brier found below in the case regarding the clark against california supplement inmates in the prison economy you have to rely on other inmates in order to read and write as just a few examples by providing their food and their money or to the unique risk of abuse while in prison and it is the prisons duty to inmates such as mr hopkins under the clarke against california remedial plan to ensure that he doesn't have to do that to ensure that plans or not and i think as to that this in particular leaving aside the grievance processes that existed while he was incarcerated we submitted it that it's undisputable that he didn't obtain meaningful access to the services that he needed in order to present his case to the floor but when i ask a question on just fundamentally as i read the complaint to the extent it is seemed like it was only constitutional claims you've raised an argument on appeal that that should be interpret is statutory claims well what is your basis for i mean st of all does it matter and nd of all what's your basis for saying that this constitutional boyden stary should be applied broadly to come reading of complaints reading claims into a complaint that don't aren't there yes your honor i've got several answers to that the st as to whether the court should have avoided the constitutional question in the st place despite the undisputed fact that the complaint asserts claim under the due process clause is in the united circuits on armstrong against davis which directs the lower court to avoid constitutional questions if possible and relatedly in the clarke against california case which  court cited and which we've discussed repeatedly today judge bryer did exactly that because in the complaint that he was discussing the inmate similarly asserted due process clause and they didn't assert statutory claims no your honor instead judge bryer said specifically that claims as to due process under the clarke remedial plan are to be construed as statutory claims under the eighty eight dollars and the rehabilitation act and so those i think are the t of directed to court below to avoid the constitutional question and to take it up as a statutory claim and ask your question about whether it matters we submit that it does because the meaningful access standard is very different from the constitutional standard that the court created below which asked mr hopkins to show that he was the victim of a typical or significant hardship and prison life and that is directly contrary to the fundamental point of  which has to do with a class of inmates who have development of disabilities whose conditions are necessarily typical and so it held mr hopkins to an artificially high standard and gave the government an artificially low standard when what they go to the lower court should have st this court should affirm the decision of the district court to grant summary judgment to the secretary of the department of corrections and rehabilitation because the undisputed evidence shows that mr hopkins received reasonable accommodations for his developmental disability in accordance with the clarke remedial plan it's kind of difficult to ascertain what complies with the clarke remedial plan but mr hopkins continues to assert that he has to pay other and mates to help him isn't that enough to support the reasonable inference that he's not receiving assistance that's required by clarke and the a t f your honor i would say that the reasonable accommodations are very clearly outlined in the clarke remedial plan and the fact that he is asking other inmates to act as jailhouse lawyers for him does not undermine that many inmates seek the assistance of jailhouse lawyers they have for years the u s supreme court has said that this is a manner in which  inmates may access the courts the th circuit has said as much so the fact that he has done so throughout does not undermine the showing that he is receiving reasonable accommodations for his developmental disability is there a difference though between that they may use that versus they're forced to do that because they're not there's no other access i don't think he's being forced to use that the record know we submitted hundreds of that he might have but the question is is there a difference between being forced to or that you may mark require that you have to be forced to i think that's what he's asking if he were being  it if you were being forced to use other inmates to help him because he wasn't getting his accommodations with the then have would he have raised you know would he be entitled to relief by this court i would say that there was no forcing him him to use jailhouse lawyers he was being well but i think it was forced to because he wasn't receiving other assistance is that do we have to reverse summary judgment i don't think so your honor well how can that be i think you could argue that if you're not giving him anything and he's forced to use other people why would you be entitled to summary judgment because it seems like clarke would not allow for that to the prison officials are giving him help well i know that's what you're arguing but the question was if he was being forced is that different then just because he chooses to use other inmates what has to be you're not losing your case by admitting that it has to be if you were giving him not paying any was being forced to use other inmates why would you deserve to win well i suppose if somebody was absolutely forcing him you can c de something without losing you have to be a little more nimble than i just don't think that we can find on the record here that he's being forced to do anything he's being provided reasonable accommodations in accordance with the clarke remedial plan he's not being forced to use inmates to write his grievances he's got mental health he's had mental health staff right help him write complaints and grievances but since before he was even place in the developmental disability program we see the record is replete with him going to his doctors clinicians and saying i need help writing this i  don't like the way staff is treating me will you help me write this we make a copy we help me file it so there is just nothing on the record showing he's forced to use jailhouse lawyers there's nothing to show that he's being forced to and so he says he used other people ok so i'm distract her but assume that he did use other people that's true how on this record is there no material disputes material issues of a fact that are being disputed how can we be sure thought even considering that he's saying that that he got ever that he got everything he's  titled to as a matter of law under clark mr hopkins has the burden of showing a reasonable modification that he has not received he has not done so i have not heard on what this reasonable modification is that he's not getting under clarke the clarke i would say that the clarke remedial plan dictates what accommodations are reasonable right at the undisputed fact record what shows that you should when he was receiving accommodations pursuant to the clarke remedial plan every single day that was log in hundreds of pages of these daily accommodation logs we should we see on multiple occasions his asking for help writing forms writing cour forms writing grievances writing letters to family members understanding court forms understanding transcripts we have staff reading transcripts to him we have staff helping him in the library to find legal materials scribing explaining they are providing him with all the accommodations that are required under the clarke remedial plan there is absolutely no accommodation that he has suggested under the clark remede that is provided for under the clark remedial plan that he has not received so i think what your argument is that right that if that's undisputed but he claims i want gas i want that and i didn't get this i used other people if you pursue him that to be true i'm assuming what your argument is even pursue mean that to be true you look at everything here and no juror could find other than that he got all the accommodations your honor said it much more articulate than i did yes i would agree with that  well i can assume that there are you could never have a case where an end mate would have everything that they want or be happy with everything or like every result that they got so but on the other hand i could also assume a case where if and mate were forced to use other people to get what they needed because they weren't getting accommodations then you've got a tribal issue and you go to a jury so all of you know i'm trying to get my arms around all of these cases are probably everyone can always probably say things and so what's appropriate what's the appropriate case for summary judgment so the appropriate case for summary judgment has to just return to what are the what are reasonable accommodations under clark and did he receive them relying on jailhouse lawyers permitted it's acceptable as an accommodation for inmates to access the courts there are are multiple times probably ninety percent of the time we see inmates doing so the inma population is not always the most educated there are often the struggles with the english language jailhouse lawyers are a fact of life they're protected under the st amendment the fact that mr hopkins used them to assist him it doesn't mean anything it does not mean that he's not getting reasonable accommodations under the clarke remediation plan so what does the record show about how many appeals he filed what success right was all of that what is the record what is what is undisputed in the record on that play well the district court found over thirty health care appeals he filed over thirty health care appeals he was able to take at least half of them or a little bit less and half of them rather all the way up to the final level of appeal meaning he exhausted them and the record actually shows many many other inmate appeals that he was able to file including the appeal  of the issues underlying this very lawsuit and if you look at the his own exhibits it shows that he's filed numerous other inmate appeals even beyond these health care appeals so he has not been denied access to to the courts or the ability to file and make or even says throughout and i see my time is up do there my calling into question apparently we don't have any additional questions thank you accommodations under clark that's not the standard the standard is whether he had meaningful access to the specific types of help he was supposed to get under clarke the nd point i want to make is concerning the  state submission that on the record that's before the court right now mr hopkins got everything he was supposed to get leaving aside the question of the standard that's just not true and again i want to return to the fact that as judge bryer specifically laid out in a road map and clarke against california as to what is meaningful access under the remedial plan and what isn't it is never meaningful access to the assistance under the remedial plan when inmates such as mr hopkins are that he's been forced to do that the evidence your honor has to do with mr hopkins as condition unlike many and maybe most of the inmates in california's prison population mr hopkins is developmentally disabled and mentally ill and so for inmates such as him per judge briar again and harkins california it is a form of abuse and manipulation and being forced into some course of action when i themselves at risk as opposed to other inmates by giving up their food and their money because inmates with developmental disabilities and the onus is such as the kind mr hopkins has are uniquely vulnerable to that type of but it strikes me if i accept what you're saying that someone could have helped every single day they could have every they could get everything and then they could just go and ask another and mate to help them and say i'll give you my snacks for that and you've created you've defeated summary judgment that can't be right i think that if an inmate is developmentally disabled and then illegal as mr hopkins is and so has a clear and consistent record throughout his time of incarceration although i think even want to send everyone on the g d p have some issues and they don't get there by not having some issues right that's true and there there is a gradation in terms of the care that is due to inmates in the d p and mr hopkins is a duty to which means that he is just one step away from the most of the year categorization and so i think looking at it seems to me that you you need to show not just that he's doing this but that he has a history of asking to receive assistance and that's been denied him and thus forcing him to do that and i guess my question is is that in the record here but yes your honor i think if you look at the examples of mr hopkins going to the library asking for help saying that he didn't get what he needed and also repeatedly telling prison staff and writing and his own that or if there's evidence that he did get help and many other circumstances right there is what we would submit that that doesn't meet the standard of having meaningful access to these accommodations throughout his