Texas Jail Guards Deny |Using Excessive Force

     HOUSTON (CN) — A Texas prisoner testified Monday that five guards stormed his cell, squeezed his genitals and shoved something into his rectum after he asked why he needed to be strip-searched, since he was already naked.
     Six prison guards are fighting excessive force and failure to protect claims that Marcos Ortiz, 60, made in an October 2014 federal lawsuit.
     Ortiz took the stand Monday, the first day of trial, in a long-sleeved white shirt, a black tie and thick glasses, his gray goatee nearly meeting white sideburns.
     He peered around a computer monitor facing him on the witness stand and told his attorney he’s still haunted by the sexual assault he suffered at the Estelle Unit in Hunstville on Jan. 31, 2014.
     “How often do you think about the incident?” asked his attorney, Laura Smith, with Baker Botts.
     “Just about every day.”
     “How does it make you feel?
     “It makes me depressed. It doesn’t make sense to me, for putting my arms through the food slot, I was subjected to all that.”
     According to trial testimony, jailers at the Estelle Unit confiscated Ortiz’s clothes and property to punish him for starting a fire in his cell. Ortiz claims in his lawsuit that guards also denied him food and medical attention for several days and when they ignored his request to talk to a supervisor he resorted to putting his arms through the food slot, called “jacking the slot.”
     Ortiz filed the lawsuit as John Doe.
     “Unfortunately, Doe only succeeded in drawing the attention of Juaquine Pope, who was a lieutenant at the time and was later promoted to captain. Pope had no interest in Doe’s situation. Instead, he emptied over 14 ounces of pepper spray into Doe’s cell,” Ortiz’s amended complaint states.
     The jury of six women and four men appeared captivated as they watched footage of Pope ordering Ortiz to get his arm out of the slot.
     The five other guards Ortiz sued sat in chairs against a wall of the wood-paneled courtroom, under the projector screen as the film rolled.
     Some of them squinted, one closed his eyes, one stared at his feet, the guy next to him scowled, the scene frozen like a sooty Norman Rockwell painting in the darkened courtroom, as Pope yelled at Ortiz in the video.
     “Mr. Ortiz, submit to a strip search or the application of chemical agents will be utilized … Mr. Ortiz, submit to hand restraints. Be advised that at this time the prisoner is refusing … Mr. Ortiz, submit to a strip search or application of hand restraints and a five-man team will be utilized!”
     Ortiz testified that he didn’t understand why Pope was asking him to submit to a strip search.
     “I was saying, ‘Why are you talking about a strip search?’ because I was naked,” he said.
     The video shows Pope squirt pepper spray through the slot three times, before five guards wearing helmets, shields, body armor and handcuffs storm into the cell.
     “Ahhh, help!” Ortiz yells on the video amid the screeching of other inmates and muffled voices of guards saying, “Stop resisting.”
     “That was me screaming, first because they were pulling and squeezing my testicles and penis and they drove a foreign object into my rectum,” he said.
     “How did you feel after incident?” his attorney asked.
     “For the next few weeks, because I didn’t get any real medical treatment for the burning and I wasn’t decontaminated or anything, my skin was burning, my breathing, my medical conditions were aggravated, my chronic bronchitis and asthma were aggravated and I wasn’t given any medication for the pain,” he said.
     Ortiz said the guards hit his eye and broke bones around it: “I had three different fractures.”
     He said in a low voice that he attributes his breathing problems to their throwing him back into the cell without washing out the pepper spray.
     The jury saw photos of Ortiz in the prison clinic, a blood streak curling from an eye to his mouth.
     “I told the nurses at the clinic my private parts were killing me. They were burning because of the sexual attack during the use of force and they didn’t do anything,” Ortiz told state’s attorney Leah O’Leary.
     “So you told the nurses your private parts were burning, and that would be attributed to the chemical agents, right?” O’Leary asked.
     “That’s what they said.”
     “But you did not tell the nurses that someone twisted your testicles or someone inserted something, you didn’t mention any of those things, did you?
     “I told them that I was sexually attacked.”
     Ortiz said he had pain in his penis and anal bleeding two years later, but acknowledged on cross-examination that no doctor has confirmed those injuries. He said he told a doctor about it but she did not examine him.
     He also acknowledged that no doctor had diagnosed him with broken bones. “I was denied X-rays,” he told O’Leary.
     Pope, a black man with a former athlete’s bearing, took the stand in a dark suit, khaki pants and black boots and had an answer for each of Ortiz’s claims.
     Pope testified that Ortiz was not following the protocol for a strip search even if he was already naked.
     “He was supposed to open his mouth, run his fingers through his hair, behind his ears, lift his testicles, but he didn’t do that,” Pope said.
     He said a handbook that the Texas Department of Criminal Justice gives prisoners states those rules.
     O’Leary belabored the point, asking Pope: “If Mr. Ortiz was on property restriction, he didn’t have any of his clothes or personal property, then why would you be concerned about strip-searching him, if he didn’t have anything?”
     Pope said: “They can get stuff in different ways. I’ve seen where they do what they call a fishing line, where they’ll use a long string and they’ll take that string and almost like they’re fishing they’ll throw it to other cells and get several different items.
     “I’ve seen where they’ll fish weapons from cell to cell. So just because we took all the property from his cell the day before doesn’t mean he couldn’t have fished a weapon in there that night.”
     Pope called Ortiz’s claim that he was thrown back into a cell dirty with pepper spray a lie. O’Leary played video of Pope and other guards escorting Ortiz back to his cell from the clinic.
     Pope motions to someone through the window in a door as he stands with Ortiz waiting to open it.
     “There were some offenders mopping up his cell and I’m telling them to go because they can’t be around while he’s being escorted,” Pope said.
     The trial is expected to end Tuesday or Wednesday.
     Prisoner civil rights cases rarely make it to trial. The 11th Amendment immunizes state prison systems and officials from being sued in their official capacities for money, under Section 1983 of the Civil Rights Act.
     Three such defendants in Ortiz’s case were dismissed: the Texas Department of Criminal Justice, Estelle Unit Warden Tracy Bailey and TDCJ Executive Director Brad Livingston.
     Ortiz sued Pope and fellow guards Michael Lewis, Diveonlea Lott, Michael Kirk, Kenneth Cathey and Kevin Lloyd in their individual capacities, which means he can recover money damages if he prevails.
     The officers claim they are protected by qualified immunity, which shields them from all but the most blatant misconduct.
     Ortiz has since been moved to the state’s Ellis Unit, another prison in Huntsville.
     A Galveston County jury sentenced Ortiz to 30 years in prison for aggravated assault and aggravated robbery for a June 2, 2000 incident in which he stole a car from a married couple and pistol-whipped the husband.

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