Lawsuit: NM prison guard tells Black man, ‘Let me guess, you can’t breathe?’

This story contains graphic descriptions of violence, sexual abuse, and a racist threat.

During a shakedown in the spring of 2021, a New Mexico prison guard, with his foot on the back of a Black man who lay on the floor of his cell surrounded by other guards, taunted him by saying, “Let me guess, you can’t breathe?” according to a civil rights lawsuit filed this week.

The comment by New Mexico Corrections Department Sergeant Emanuele Bobbio on April 15, 2021 made its recipient, Carl Berry, fear for his life and that he was “next.” To Berry, this meant he would be the next Black man to die at the hands of police, according to the lawsuit.

Berry’s lawyers allege the comment is a direct and deliberate reference to George Floyd’s murder. The incident at the New Mexico prison in Clayton happened as global media followed the 26th day of Derek Chauvin’s murder trial in Minneapolis.

“The officers must have been watching Derek Chauvin’s trial, or they knew about it,” said Steven Allen, director of the Albuquerque-based New Mexico Prison & Jail Project, in a virtual news conference on Tuesday.

“That kind of terrorizing of a Black prisoner here in New Mexico is completely unacceptable, and that’s why we’re filing this lawsuit,” Allen said.

Bobbio allegedly made the statement after he and four other guards at the Northeast New Mexico Correctional Facility entered Berry’s cell, sexually abused him, threw him to the floor, and physically assaulted him with punches, kicks and pepper spray to the face.

Bobbio still works with the Corrections Department, spokesperson Carmelina Hart confirmed Wednesday. The only guard who is no longer with the department is Officer Bernardo Villegas, she said.

Also named in the complaint are Lt. Christian Trujillo, Officer Danny Pelayo, and Officer Ashley Lawrence.

Pelayo is accused of sexually abusing Berry by standing behind him, putting his crotch up against his backside, and pushing his crotch into his butt.

According to the lawsuit, Berry told Pelayo to stop but the guards laughed at him and Pelayo kept doing it, so Berry told them he would file charges under the federal Prison Rape Elimination Act (PREA).

Trujillo, who is also the head of the prison’s Corrections Emergency Response Team, told Berry he was a “PREA pussy,” the lawsuit states.

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Pelayo then lifted Berry off the ground and slammed him down, the lawsuit states.

Trujillo, Bobbio and Pelayo are accused of then kicking, punching and beating Berry while he was on the floor. As they held him down, Lawrence is accused of repeatedly spraying pepper spray directly in his face, following him as he tried to move his face from one side to the other.

There were no criminal charges filed as a result of the incident, said Mallory Gagan, a staff attorney at the Prison & Jail Project. Any such charges would have to be handled by the Eighth Judicial District Attorney’s Office located three hours away in Taos.

Gagan filed the civil rights complaint on behalf of Berry, alleging the guards violated his right to be free from cruel and unusual punishment, his right to free expression and battery.

It is unclear if any of the guards involved have faced discipline. 

However, a report on the incident by the Department’s Office of Professional Standards contains multiple heavily redacted sections under the subtitle: “misconduct noted,” which could mean there was some disciplinary action against the corrections officers for their treatment of both Berry and another incarcerated man, Steve Watkins, according to the Prison & Jail Project.

Watkins has representation from the same attorneys as Berry. He was beaten by some of the same guards, in the same housing unit, at the same prison, for standing up for the same incarcerated person, who was being harassed and abused by the same guards, Allen said.

The incident points to broader systemic issues in New Mexico prisons and jails, said Barron Jones, who sits on the steering committee for the Prison & Jail Project.

“At best, prisons are opaque, and at worst, they’re secretive,” Jones said. “There’s a huge problem with Corrections. We lock too many people up, and we overwork officers, and it creates the conditions for these types of abuses to occur.”

The United States carceral system for the last half century has been a disgrace to the country, Allen said, and needs to be transformed and dramatically reduced in size.

No video evidence, despite prison policy

The alleged beating and sexual abuse in Berry’s cell happened around 8:45 a.m., according to statements made by guards to investigators. It lasted for eight minutes, with the door closed for most of that time, according to video footage recorded by stationary cameras outside the cell.

Over six hours later, a New Mexico State Police officer was dispatched to the prison to investigate, and he couldn’t find any camera footage of the attack, nor any visible injuries on Berry, according to his incident report.

Bobbio, Trujillo, Pelayo and Jaramillo each said in separate interviews with an investigator they didn’t record what happened inside Berry’s cell, even though it’s required by Corrections policy. They had ample time to get one, according to the lawsuit.

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The guards failed to record the incident “because they did not want their conduct caught on video,” the lawsuit states.

After the beating, but before allowing Berry to get the pepper spray out of his eyes, the guards put him in a solitary confinement cell, stripped him of his clothing, and ordered him to bend over and cough several times.

Incarcerated people are routinely strip-searched and ordered to “cough and squat,” but usually only once, and Berry knew the guards were making him do it repeatedly, while he was naked, to further humiliate and degrade him, the lawsuit states.

He remained in solitary confinement for a week, the lawsuit states.