Nuts to Butts

controversial prisoner shakedowns could leave taxpayers on the hook for damages

A series of skulls is tattooed across John Oates’ penis.

He inked them himself inside a prison cell when he got bored serving time for violent crimes he committed as a young adult.

He’s been in prison long enough to know that adding body art is against the rules. He’s forfeited good time credit and phone privileges, and even risked time in solitary confinement after getting caught with tattooing paraphernalia in his cell. Oates’ tats, like the one depicting a woman holding a smoking gun atop his shaved head, represent different parts of his troubled life: growing up in foster and group homes; running the streets in Las Cruces with the East Side Locos; doing hard time.

Oates, who wears glasses and sports a tattoo of his alias, the cartoon dog Odie, has seen a lot in his 30 years. But nothing quite compares to the sexual humiliation he says he was forced to endure three years ago.

In January 2010, according to Oates’ sworn deposition, he and other male inmates at Central New Mexico Correctional Facility in Los Lunas—dressed in nothing but their underwear—were taken at gunpoint to the facility’s gym. Masked members of the prison’s Correctional Emergency Response Team forced them to sit single file on the floor, legs splayed, each inmate straddling the man in front of him.

“They told us to sit nuts to butts,” Oates says. At first, Oates didn’t sit close enough. He claims guards ordered him to scoot up so that his genitals touched the buttocks of the man in front of him. When Oates still didn’t understand the instruction,  another inmate explained it to him.

“‘Look, we can’t talk, but you need to scoot all the way up,’” Oates recalls the man telling him. “‘When they say ‘nuts to butts,’ they want your nuts on my butt and your legs spread.’”

Today, Oates describes the feeling of his inner thighs touching the outer thighs of the man in front of him as “inhumane and degrading.”

Courtesy NMCD (Courtesy NMCD)

According to Oates, the men were told to keep their hands clasped behind their heads, and to put their foreheads on the back of the man in front of them. After a few hours, at least one man urinated on the boxer briefs of the man in front of him.

“I’ve been incarcerated long enough, and I have never been through nothing like that,” Oates says.

Now, Oates and several hundred other inmates, some of whom were involved in multiple shakedowns using the same seating technique, are taking legal action to stop such an incident from happening again. But they could face an uphill battle. After reviewing thousands of pages of depositions and other public documents, SFR has learned that key evidence—including surveillance footage and inmate complaints—is either missing or was never properly preserved.

In February 2011, after more than a dozen informal complaints went unanswered, Oates and others filed class-action lawsuits against the New Mexico Corrections Department and some of its employees. They claim Anthony Romero, the warden at the time of the incident, and his staff subjected them to cruel and unusual punishment, caused emotional duress and violated their civil rights to due process. They’re seeking unspecified monetary damages for their pain and suffering, along with a court injunction to prohibit the “nuts to butts” seating tactic from being used again. Ultimately, they want it ruled unconstitutional.

Yet the plaintiffs—all current or former prisoners—face a number of obstacles. A video recorded by the response team was never preserved; surveillance videos from gym and hallway cameras are missing; and grievances originally filed by several inmates have vanished.

SFR has also learned that neither the shakedowns nor the class-action lawsuits were disclosed to the American Correctional Association (the national organization responsible for accrediting prisons) until last year—two years after the “nuts to butts” incident and nearly a year after the lawsuits were filed.

Albuquerque attorney Matthew Coyte—who recently negotiated a $15.5 million settlement with Doña Ana County for Stephen Slevin, a man who spent two years in solitary confinement without a hearing—now represents Oates and the other men. Coyte says he’s disturbed that government employees ignored their own evidence-handling policies.

“There can be no excuse for it,” he says.

The lack of physical evidence foreshadows many thorny questions for jurors to consider if the case goes to trial.

The inmates’ long ordeal began soon after dinner on Jan. 26.

Around 6:25 pm, one of the prison’s newest inmates walked to a control center—the operations hub for one of the prison’s general-population housing areas—and told Sgt. Yoel Tesillo he needed to discuss an urgent matter. The inmate, a confidential informant who had arrived on a prisoner transport bus earlier that day, said he’d already uncovered an escape plot. The inmates’ plan would unfold, he said, during the graveyard shift.

The informant told Tesillo that inmates from the Cruces Boys prison gang planned to start a fight in one area, while inmates in another area brawled with a member of the Burqueños, an Albuquerque prison gang. The staged fisticuffs, Tesillo learned, were only a diversionary ploy. According to the informant, when corrections officers stepped in to stop the fights, the inmates planned to turn on them and take one or more hostage.

Elaborating, the informant suggested that one of the facility’s own guards may be in on the prisoners’ escape plan. Even more alarming, he claimed he’d personally seen shanks supposedly prepared for the disturbance.

(Incident reports written after the subsequent shakedown indicate no weapons were found and the only guard involvement would have been the keys taken from a potential hostage.)

Concerned about what might be going down on his shift, Tesillo quickly notified a duty officer, who relayed the alleged threat to deputy wardens and the chief of security.

By 7:45 pm, staff members and correctional officers were ordered to their quarters for safety. Thirty minutes later, the story took on a whole new life when a housing officer radioed that he could see inmates getting dressed and shouting, “Get ready!”

Around the same time, Joe Lytle remembers receiving a phone call about the possible disturbance. At the time, Lytle was the lieutenant of the prison’s CERT team—a special group of guards trained to move prisoners, under force, from one point to another in the prison.

On the road, according to his deposition, Lytle activated his team and began formulating a plan to resolve the situation. Lytle, who is now a captain at the State Penitentiary in Santa Fe, reminded himself about key CERT principles: locate, verify, isolate and contain; evacuate; resolve and deactivate. To contain the inmates, Lytle decided to implement the controversial seating arrangement. (In sworn depositions, Lytle and other corrections officers now call their technique “controlled seating,” but inmates believe that term was created to defend against their lawsuit. In 2009 and 2010, they specifically remember guards calling it “nuts to butts.”)

After the CERT team arrived, former inmate Joseph Salazar remembers hearing Lytle yell, “March these motherfuckers to the gym!”

After taking a seat on the gym’s floor, Salazar wrote in interrogatories, inmates were told to “put your balls up against the next man’s ass.” If inmates refused or made any movement, Salazar claims guards threatened to release their attack dogs.

“My dog wouldn’t mind biting the shit out of one of you if you move,” Salazar recalls a guard yelling. “The guards seemed to be getting some sort of amusement out of it,” he remembers thinking.

Laura Schauer Ives, the legal director for the American Civil Liberties Union of New Mexico, says the kind of sexual humiliation suffered by the inmates that night would be “impossible to justify in any kind of penological interest.”

“It’s incredible that someone would do this and think it’s OK,” Schauer Ives tells SFR. “When authorities use sexual humiliation to control inmates, they take the cue that it’s OK to act that way, and we already have a high number of rapes in our prisons.”

She says she can’t imagine a safety reason for the seating technique. Rather, she says, “It shows a disregard for the inmates’ integrity and dignity.”

Lytle’s response plan—approved by Romero, and witnessed by now-retired Deputy Director of Adult Prisons Donald Dorsey—was unconventional, but Lytle later told attorneys he was more concerned about getting the job done while keeping his staff and the public safe.

To determine whether the tactic was necessary, Lytle claims he first tried to verify the informant’s rumors because “we don’t want to act too hasty.”

But Romero later testified to unrest at the prison.

“I had two housing units down on the B side that started to act up, and they started to get real rambunctious inside,” the warden recalls in his deposition. “The officers had a bad feeling of what was going on.”

After hearing Romero say, “Hey, lock it down,” Lytle rolled his team into action.

Courtesy NMCD (Courtesy NMCD)

The inmates were ordered to strip as soon as CERT members entered their sleeping quarters.  When guards determined that none of them were concealing weapons or other dangerous contraband, the men were told to put only their boxers or briefs back on. With most of their clothes still piled on the floor, the inmates moved silently toward the gym.

For the convicts, walking through the facility semi-nude was unusual. CNMCF’s inmate handbook specifically requires them to wear a uniform every time they walk through secure areas of the facility.

Oates, a kitchen worker, arrived late to the gym. His crew was finishing a shift at the prison’s Level III kitchen; they’d been trying to find a missing cooking tool. Once they found it, guards marched them to a hallway outside the gym and told them to squat and cough. “They were real aggressive, yelling, ‘Get on the wall, get on the wall!’” Oates recalls.

Once he was moved to the gym, Oates says the first thing he remembers seeing was men carrying shotguns and the warden walking up and down the aisles, shouting, “This is my fucking prison. I run this fucking prison. That’s why you’re sitting like bitches.”

Romero denies using foul language and says he was only in the gym for part of the evening to observe CERT’s response.

Some employees had misgivings about Lytle’s crowd-control tactics. But Dorsey, who retired from NMCD a few months after the incident, wasn’t one of them. In his deposition, Dorsey says he went to the facility after getting a call about the possible disturbance. At first, Dorsey says he talked himself out of going to observe, “and then I just told the Misses that I’ve got to go.”

Even though Dorsey’s job didn’t require him to be there, he says he’s personally checked on emergencies throughout his 41-year career in corrections.

“Something doesn’t feel right, I sometimes just go look for myself,” he says.

When he arrived at the prison, Dorsey says he was assured it was safe for him to enter the gym.

“If there had been an actual event, I would have went directly to Santa Fe and set up a command post in Santa Fe to help coordinate logistics for the Department of Corrections,” he says.

Despite the fact that he had never seen it used before, Dorsey says he didn’t see anything that bothered him about the “nuts to butts” arrangement. Nor did he do anything to stop it.

Transcripts reviewed by SFR, however, show that at least two people employed at the prison at the time disapproved of the seating technique, including then-Security Threat Intelligence Unit Coordinator Daniel Sedillo.

While the risk of a riot or escape had diminished by the time he arrived at the prison, Sedillo says the inmates were still seated on the gym floor, and “they were getting fidgety.”

After surveying the situation, Sedillo says in his deposition that he decided to order his entire squad out of the gym.

“I didn’t want them to be a part of it,” Sedillo says. “I wanted to protect them, because I didn’t think it was right. You never force a man to touch another man, especially in prison. I’ve never seen that before. And I’ve been to riots and a few other major disturbances.”

At the time of his deposition, Sedillo was acting deputy warden at CNMCF; he is now a unit manager there.

He’s seen his share of prison incidents: He had his head split open and fingers crushed during a major disturbance in Lea County in 1998. He told attorneys the seating technique he witnessed was “absolutely degrading.”

He also says putting distance between inmates is the basic rule during shakedowns.

“If I have tension in a facility, the last thing I want to do is put this guy on top of that guy when it may be him that wants to kill him,” Sedillo says.

Still, he never expressed his concerns to the warden.

“You don’t question Mr. Romero’s authority,” Sedillo says. “You could fall on his bad side.”

Robert Tenorio, a then-deputy warden who no longer works for NMCD, agrees with Sedillo’s assessment, even though he never made it to the gym that night. Tenorio told attorneys during his deposition that he’d already had a few beers when he got the call to come back to the prison. Uncomfortable driving there, Tenorio decided to review the surveillance camera videos the next morning.

“The inmates were lined up in a position unknown to me,” Tenorio says. “It was not a form of containment that would be used inside a facility I’ve ever been involved with.”

During his 33-year career in corrections, which ended last year, Tenorio says he was taught to isolate people, “not to bunch them together in a position where they would actually be touching each other.”

The more common approach, Tenorio says, is to place inmates against the walls, at least two feet apart from each other. That could help address another potential concern: the health risk of inmates’ spreading communicable diseases like hepatitis.

Within a few days of the incident, Tenorio says he also began to worry about potential fallout among the inmates—many of whom he claims were still visibly upset. The next time he saw Romero, Tenorio says, the warden told him the inmates “don’t like my ‘nuts to butts’ program.”

Tenorio seems to understand their perspective.

“Inmates want you to respect their rights,” he says. “They have human rights. And when you disrespect inmates and you put them in situations like that, the fallout usually ends up back on the staff and the administration and the department. People become retaliatory towards practices that are inhumane.”

Tenorio also has unique insight into what happened next—and how crucial evidence in the inmates’ lawsuit may have gone missing.

At the time of the incident, Tenorio was partially responsible for processing inmate complaints. He says he gave them to the administration for review, but never received answers to give the prisoners. According to sworn depositions, the complaints have never been found.

On top of that, Tenorio says, Romero never asked to see the surveillance video; nor did the warden ask for it to be saved. Tenorio believes the department’s old camera system probably recorded over it in just a few days.

Testimony reviewed by SFR indicates NMCD was planning to upgrade the system. But Alex Tomlin, the department’s spokeswoman, writes in an email to SFR that, for security reasons, she can’t provide details on the status of their surveillance camera technology.

A video reportedly recorded on the CERT’s handheld digital camera is also missing.

In his deposition, Romero says the CERT team is supposed to record major incidents, and he recalls seeing at least one video camera being used in the gym that night. But Lytle says he didn’t look for the video until after the lawsuit was filed.

“If there is something on there, then we’ll download it, and we’ll give it to the administration for their investigation,” Lytle says. “And then if nothing happens, then we leave it on the video camera and probably just record over it.”

Lytle’s statements underscore a key issue: how inmates and prison guards likely viewed the Jan. 26 incident very differently. To corrections officers and prison administrators, the shakedown may have seemed like the best option to stop a serious threat from erupting into an “actual event,” such as a full-blown prison riot. But inmates contend it was nothing more than the warden’s way of showing them he was in control. The prisoners say the “nuts to butts” tactic was an attempt to intimidate and sexually humiliate them—and the evidence should have been saved so they could prove their claims.

SFR reviewed NMCD’s video handling procedures. Regulations in place in 2010 required staff to complete a serious incident checklist and give videos and photos to an operations warden for storage.

When Coyte pressed current CNMCF Warden Joseph Garcia, the deputy warden in charge of operations at the time of the “nuts to butts” incident, about whether there was an excuse for not having the evidence, Garcia said, “There’s no excuse.”

But inmates also want to know why their grievances vanished.

“Certainly, tracking of informal complaints needs to get better,” current Director of Adult Prisons Jerry Roark concedes in his deposition.

Tracking complaints isn’t Schauer Ives’ only concern. She also wants to know why the shakedown wasn’t documented by the ACA until the prison’s three-year accreditation hearing last year.

“When prison administrators fail to report serious incidents or respond to complaints, they thwart important protections that are in place to monitor inmate safety and abuse,” she says. “Any such failure, therefore, should be closely scrutinized.”

No one is comparing “nuts to butts” to the draconian sexual humiliation and torture of terror suspects in Iraq, but stunning photographic evidence from the Abu Ghraib prison led to reforms and the prosecution of military guards. Prisoners in New Mexico, whose credibility will likely be challenged in court, could face daunting obstacles in proving their claims of being humiliated—even if prison authorities are to blame for ignoring their own evidence procedures.

For now, “nuts to butts” is not used in New Mexico prisons. In 2010, shortly after then-Corrections Secretary Joe Williams heard about the controversial seating arrangement, he halted its use. Months before the inmates’ lawsuit was filed, Williams scheduled a system-wide conference call with wardens. Although the technique had only been used at CNMCF, Williams told his staff to halt its use statewide.

Current Corrections Secretary Gregg Marcantel, a retired Bernalillo County Sheriff’s Department captain, was appointed by Gov. Susana Martinez in 2011—eight months after the lawsuits were filed. In his deposition, Marcantel says he’s decided to follow Williams’ lead and not “deploy that technique.”

Still, Marcantel also testified he would authorize its use in some situations.

Courtesy NMCD (Courtesy NMCD)

“Any more than I would tell you that I may not need to dump garbage next month to feed my family, I would never say no to anything, but it’s not necessary right now,” Marcantel says. But, he adds, “It would have to—to meet an appropriate level of urgency and risk to the safety and well-being of our community, those inmates and the staff in those prisons.”

While Marcantel considers inmates’ objections to “nuts to butts,” he doesn’t want the courts to determine the constitutionality of shakedown procedures. He also wants to get to the bottom of claims regarding the discarded evidence and inmate complaints.

“We’ve got room for improvement in that area, and we’ve got to deal with it,” he says.

Schauer Ives hopes NMCD is held accountable. She says the loss of evidence makes it difficult for inmates to prove their claims.

“In this case, because that loss or destruction followed complaints about the incident, it is fair to assume [that], if retained, the evidence would have supported the inmates’ account of the incident, and that the prison administration would have retained it if it did not,” she writes in an email to SFR.

It also makes it more difficult for the public to scrutinize what’s going on behind New Mexico’s prison gates—gates that Oates is scheduled to walk through as a free man this November. But first he has to resist the urge for a new jailhouse tattoo.

Editor’s Note: Quotes published in this story are taken directly from sworn testimony and from documents in the public record. Citing pending litigation, state officials, corrections officers and attorneys declined numerous offers to go on the record with SFR.

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