 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 WILTON HAYES,

 8          Plaintiff-Appellant,

 9 v.                                                                                   NO. 31,152

10 DAVID ARREDONDO,

11          Defendant-Appellee,
12 and

13 JOHN DOES I-XX,

14          Defendants.

15 APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY
16 J. C. Robinson, District Judge

17 Peter A. Keys
18 Silver City, NM

19 for Appellant

20 Miller Stratvert, P.A.
21 Lawrence R. White
22 Las Cruces, NM

23 for Appellee
 1                            MEMORANDUM OPINION

 2 VANZI, Judge.

 3        Plaintiff appeals from the district court order granting summary judgment in

 4 favor of Defendant Arredondo on qualified immunity grounds. This Court issued a

 5 calendar notice proposing to affirm. Plaintiff has filed a memorandum in opposition,

 6 which this Court has duly considered. Unpersuaded, we affirm.

 7        In this Court’s calendar notice, we proposed to conclude that Plaintiff did not

 8 satisfy his burden of demonstrating a constitutional violation from the delay in

 9 medical treatment. [CN 6] Specifically, we proposed to conclude that Plaintiff had

10 failed to show that the delay in treatment resulted in “lifelong handicap, permanent

11 loss, or considerable pain.” [CN 6 (quoting Griffin v. Penn, 2009-NMCA-066, ¶¶ 11-

12 12, 146 N.M. 610, 213 P.3d 514)] Furthermore, we proposed to conclude that the

13 facts of Plaintiff’s case do not rise to the level generally considered sufficient to

14 establish a constitutional violation. [CN 7]

15        In response, Plaintiff continues to maintain that NMSA 1978, Sections 66-7-

16 201 (1989) and 66-7-203 (1978), establish a duty to transport any person injured in

17 an accident for medical treatment. [MIO 2] Plaintiff goes on to argue that our


                                             2
 1 Legislature waived immunity for law enforcement officers acting within the scope of

 2 their duties under NMSA 1978, Section 41-4-12 (1977). [MIO 4] Plaintiff’s reliance

 3 on these statutes is misplaced. First, as we pointed out in our calendar notice, Plaintiff

 4 argues that the statutes are ambiguous; therefore, Plaintiff is unable to establish that

 5 the officer’s conduct violated a clearly established right. [CN 7-8 (citing Starko, Inc.

 6 v. Gallegos, 2006-NMCA-085, ¶ 11, 140 N.M. 136, 140 P.3d 1085)] Moreover,

 7 Plaintiff has not established that these statutes establish a federal constitutional or

 8 statutory right on which a 42 U.S.C. § 1983 action may be premised. See Starko,

 9 2006-NMCA-085, ¶ 10 (“Section 1983 does not itself establish or create any rights”;

10 instead, it “provide[s] a cause of action for money damages against a state official in

11 his or her individual capacity for the deprivation of federal constitutional or federal

12 statutory rights.” (emphasis added) (alteration, internal quotation marks, and citation

13 omitted)). Furthermore, Plaintiff has failed to establish how he could support an

14 alleged Eighth Amendment violation for delay in medical treatment—the theory under

15 which delay in medical treatment is generally analyzed. See Griffin, 2009-NMCA-

16 066, ¶ 9 (indicating that a delay in medical treatment is analyzed as a potential Eighth

17 Amendment violation and requires a showing that the plaintiff suffered substantial

18 harm as a result of the delay).




                                               3
 1        To the extent Plaintiff argues a duty was created under Sections 66-7-201 and

 2 66-7-203, and to the extent Plaintiff asserts Defendant’s failure to transport constituted

 3 negligent infliction of emotional distress, these arguments do not support reversal of

 4 the district court’s grant of summary judgment on qualified immunity grounds for the

 5 reasons discussed above. Moreover, Plaintiff has not argued on appeal that the district

 6 court dismissed any tort actions—to which these arguments might be relevant.

 7        For the reasons stated above, we affirm.

 8        IT IS SO ORDERED.


 9                                          __________________________________
10                                          LINDA M. VANZI, Judge


11 WE CONCUR:



12 _________________________________
13 JONATHAN B. SUTIN, Judge



14 _________________________________
15 CYNTHIA A. FRY, Judge




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