                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                            May 14, 2015
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JA'WAYNE HELFFERICH,

      Plaintiff – Appellant,

v.                                                          No. 14-2197
                                                (D.C. No. 2:14-CV-00219-RB-GBW)
GREGG MARCANTEL; JERRY ROARK;                                (D. N.M.)
COLLEEN MCCARNEY; ROBERT
STEWARD; MICHEL HOHMAN;
HERMAN GONZALES,

      Defendants – Appellees.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, McKAY, and MATHESON, Circuit Judges.
                  _________________________________

      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Appellant Ja’Wayne Helfferich, a state prisoner proceeding pro se, filed a

complaint in which he alleges that his constitutional rights were violated by officials

involved in transporting him between New Mexico correctional facilities. Appellant


      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
asserts the trip consisted of nine hours in a hot, poorly ventilated transport vehicle

with eleven other inmates. He further states that the vehicle was driven carelessly

and the drivers refused to make any rest stops, all causing extreme discomfort in

violation of the Eighth Amendment. Appellant also alleges that prison officials

violated his procedural due process rights by failing to first medically evaluate his

ability to withstand the trip.

       The district court dismissed the complaint under 28 U.S.C. § 1915(e)(2),

which allows a district court to dismiss a complaint sua sponte if it is frivolous,

malicious, or fails to state a claim, and under Fed. R. Civ. P. 12(b)(6), which allows

dismissal if it is “patently obvious that the plaintiff could not prevail on the facts

alleged, and allowing him an opportunity to amend his complaint would be futile.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (internal quotation marks

omitted). The court found that Appellant’s claim regarding the conditions of his

transportation between correctional facilities, even if true, failed to rise to the level of

“unnecessary and wanton infliction of pain” necessary to implicate the Eighth

Amendment. See Wilson v. Seiter, 501 U.S. 294, 297 (1991). The court dismissed

Appellant’s due process claims because Appellant failed to allege any actual injury

resulting from the lack of a medical exam prior to his transport.

       We review a district court’s dismissal under 28 U.S.C. 1915(e) for an abuse of

discretion, see Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997), and review a

district court’s dismissal under Fed. R. Civ. P. 12(b)(6) de novo. Smith v. United

States, 561 F.3d 1090, 1098 (10th Cir. 2009). After careful review of Appellant’s

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submissions to this court and the record on appeal, we agree with the district court’s

dismissal under either standard. The conditions of Appellant’s transport simply do

not rise to the level necessary to implicate the Eighth Amendment, particularly as “a

prison official cannot be found liable under the Eighth Amendment for denying an

inmate humane conditions of confinement unless the official knows of and disregards

an excessive risk to inmate health and safety.” Farmer v. Brennan, 511 U.S. 825,

837 (1994).

       We also agree with the district court’s dismissal of Appellant’s procedural due

process claim because Appellant did not describe any actual injury from the lack of a

medical exam prior to transport between correctional facilities. See O'Shea v.

Littleton, 414 U.S. 488, 493 (1974) (“Plaintiffs in the federal courts must allege some

threatened or actual injury resulting from the putatively illegal action before a federal

court may assume jurisdiction.” (internal quotation marks omitted)).

       We therefore AFFIRM the district court’s denial of both of Appellant’s

claims. We GRANT Appellant’s motion to proceed in forma pauperis on appeal and

remind him of his obligation to continue making partial payments until the entire

filing fee has been paid in full.


                                              Entered for the Court


                                              Monroe G. McKay
                                              Circuit Judge




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