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Roman Gallardo

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Roman Gallardo was just a few weeks out from finishing his yearlong sentence at the Metropolitan Detention Center.

He'd been busted for drunken driving in 2005, and while in jail, he had gotten sober, had a spiritual awakening and become excited about starting a new life.

But on Jan. 4, 2006, he says, he was raped in his jail cell by an inmate his attorneys at the American Civil Liberties Union say should have never been allowed access to vulnerable inmates.

A lawsuit filed in U.S. District Court in Albuquerque on Thursday morning says jail guards and other inmates knew the accused inmate had already faced one rape allegation when he was put in a cell with Gallardo, who is openly gay.

Bernalillo County spokeswoman Liz Hamm said she would not comment on the lawsuit or allegations included in it.

But in documents obtained by The Tribune, jail officials investigating Gallardo's accusation determined a "sexual contact did occur but appears consensual" with the accused inmate.

Those documents do not show any official report of a previous rape by the accused inmate.

The accused inmate has not been charged with a sexual assault so The Tribune is not publishing his name.

The Tribune, as a rule, does not publish the names of victims of sexual assault, either, but Gallardo, 25, said he wants his story told.

"The fact that it happened to somebody else . . .," Gallardo said, noting his belief that the accused inmate raped another inmate in the year before to his attack. "I want to make a change. They need to do their job."

The lawsuit seeks damages from the jail, city and county.

"Our hope is, out of this litigation we'll inspire some change in how supervision and physical security is meted out," said Peter Simonson, ACLU executive director.

The lawsuit says guards could have prevented the alleged rape if they had better screened which inmates were being lodged together.

"There has got to be some basic classification approach that does not result in a known violent inmate being housed with an openly gay inmate," Simonson said, noting an openly gay inmate might be more vulnerable in such a situation.

Gallardo, slight and effeminate, said he was teased and badgered by other inmates and by guards about being gay in the year he spent in jail.

"But what was I supposed to do?" he said. "I learned that you cannot be a rat in jail; you can't tell or you're going to get hurt."

So, he said, when his cellmate attacked him and threatened him not to tell, he initially obeyed.

"I was like, I have no idea who this guy is and what kind of connections he has. I just wanted to stay away from him," Gallardo said.

"I just wanted to make it out alive and deal with it (the attack) when I was out," Gallardo said.

His family later notified jail authorities of his allegation, and the jail began an investigation on Jan. 10, 2006, according to jail documents.

Bernalillo County District Attorney Kari Brandenburg said the county gave her office the results of its investigation in the spring of 2006. The office decided by June that it didn't have enough evidence to proceed with a case, she said.

Gallardo's accusation was one of 21 sexual misconduct allegations the county confirms it investigated since 2005.

Hamm could not comment further about the case, including what classification status the accused inmate had at the time he was in a cell with Gallardo, how the jail classifies inmates and deciding which cell they should have.

Gallardo meanwhile is still healing from what he calls "it."

"It's put a strain on my relationship that I'm in, and I don't like to talk to my family about it," he said.

"But I want people to know that what happened isn't right. Yeah, you're in there (jail) for a reason, but you have human rights and they should protect them," Gallardo said.