Legislators seek ouster of receiver after San Quentin COVID-19 outbreak

An attorney representing prisoners in civil rights litigation pushed back against calls by California legislators to remove prison receiver J. Clark Kelso over his handling of the coronavirus pandemic in state prisons.

Kelso has acknowledged transferring hundreds of inmates, without checks for COVID-19, from Chino State Prison, which had a virulent outbreak of the disease. Kelso sent them to San Quentin, which had no coronavirus cases, resulting in an outbreak of 2,300 cases and 23 deaths there.

In a letter sent Friday to U.S. District Judge Jon S. Tigar, six members of the California Assembly urged that "Kelso be immediately removed from his position and replaced with an individual committed to protect the health and safety of incarcerated persons." Kelso was appointed in 2008 by the previous judge in the long-running case to oversee prison health care. Plata v. Newsom, 4:01-cv-01351-JST (N.D. Cal., filed April 5, 2001).

"On a call with legislative leaders in June, Mr. Kelso acknowledged that his decision to transfer inmates from Chino to San Quentin was done 'too quickly,' was a 'self-inflicted wound' and a 'big mistake,'" the letter stated.

"Mr. Kelso's mismanagement of the COVID-19 pandemic at California Department of Corrections and Rehabilitation ... facilities resulted in the worst public health disaster in CDCR history," the letter stated. "To date, over 15,000 incarcerated people have been infected and 69 incarcerated people have died from COVID-19."

The letter was announced on the website of Assemblyman Marc Levine, D-Marin County. It was signed by four other Democrats and one Republican.

On Tuesday, an attorney representing class members in Plata and a related case defended Kelso and said the letter appeared to misconstrue how much power he has as receiver.

"I think that it's misplaced," said Michael W. Bien, co-founding partner with Rosen Bien Galvan & Grunfeld LLP. "I don't agree at all with the comments of the legislators. There were mistakes made in the transfers, but it was not Kelso's mistake alone."

Bien is counsel in both Plata, a case concerned with prisoners' rights to health care, and a case involving the rights of mentally ill inmates, Coleman v. Newsom, 2:90-cv-00520-KJM-DB (E.D. Cal., filed April 23, 1990).

He and other attorneys have used hearings in these cases throughout the year to argue for inmate releases, saying that would limit the spread of coronavirus in prisons.

Bien said the legislators' letter appeared to overstate Kelso's powers -- and ignore the power held by others.

"He's been very involved in managing the crisis," Bien said. "But the responsibility for who gets out and who gets transferred is not with Mr. Kelso, but with CDCR and the governor. The Legislature also has a role in this. If they want to reduce the risk of COVID, every public health official has recommended they reduce the population."

Bien has served as counsel in both cases for well over 20 years. Every time a major participant changes, he said, it can slow down action by months or years. He also said Kelso has been more transparent and willing to take responsibility than a previous Plata receiver.

He said he agreed the Department of Corrections could do a better job coordinating with public health officials, and urged legislators to hold a hearing on the topic.

"One person doesn't do anything in government," Bien said. "People feel like they've achieved something if someone loses their job."

Levine's office did not respond to an email seeking comment.