by Jo Ellen Nott
A civil rights complaint filed by attorney Mallory Gagon of the New Mexico Prison and Jail Project in April 2023 alleges that five Northeast New Mexico Correctional Facility guards, two of them with rank, entered the cell of prisoner Carl Berry and “sexually abused him, threw him to the floor, and physically assaulted him with punches, kicks, and pepper spray to the face.”
The incident took place during a shakedown on April 15, 2021. Berry, 45, is Black, and the guards are not. One of them, Sgt. Emanuele Bobbio, allegedly put his foot on Berry’s back and mocked him, using the dying words of George Floyd at the hands of Minneapolis police that touched off racial justice protests in the summer of 2020.
“Let me guess,” Bobbio reportedly said, “you can’t breathe?”
Berry’s beating and subsequent segregation in solitary confinement occurred 26 days into the trial of former Minneapolis policeman Derek Chauvin for Floyd’s murder. Chauvin was convicted and sentenced to over 20 years in prison.
A spokesman for the prison where Berry was allegedly abused confirmed that Bobbio was still working with the state Corrections Department (NMCD) as of April 12, 2023. But another of the five guards, Bernardo Villegas, is no longer employed at NMCD.
A third guard named in the complaint, Lt. Christian Trujillo, allegedly called Berry “a PREA pussy” when the prisoner promised to report guard Danny Pelayo for rubbing his crotch and pressing his genitals against Berry’s backside. The Prison Rape Elimination Act (PREA), 42 U.S.C. ch. 147 § 15601 et seq., provides a mechanism for prisoners to report sexual assault. Pelayo then allegtedly picked Berry up and slammed him to the floor. The fifth guard, Ashley Lawrence, allegedly pepper-sprayed him in the face while he was down.
Guards told NMCD investigators that their interaction with Berry happened in his cell at approximately 8:45 a.m. with the door closed. Later that day a New Mexico State Police officer sent to investigate could not find any camera footage of the alleged attack, in violation of prison policy, and did not report any visible injuries on Berry. There were no criminal charges filed as a result of the incident. However, a heavily redacted report filed with NMDC’s Office of Professional Standards suggests some disciplinary action was taken against the guards.
Berry’s complaint accuses the guards of battery and violating his Eighth Amendment guarantee of freedom from cruel and unusual punishment, as well as his First Amendment right to free expression. For that Berry seeks actual and compensatory damages. See: Berry v. Trujillo, USDC (D.N.M.), Case No. 2:23-cv-00312.
Barron Jones sits on the steering committee for the New Mexico Prison and Jail Project and is a senior policy strategist for the American Civil Liberites Union. Before becoming a journalist and advocate he was incarcerated in New Mexico for 10 years. He said the incident with Berry “points to broader systemic issues” in state prisons and jails.
“We lock too many people up,” Jones said, “and we overwork officers, and it creates the conditions for these types of abuses to occur.”
Additional sources: Atlanta Black Star, Source NM
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