UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JA'WAYNE HELFFERICH, 

 Plaintiff – Appellant, 

v. 

GREGG MARCANTEL; JERRY ROARK; 

COLLEEN MCCARNEY; ROBERT 

STEWARD; MICHEL HOHMAN; 

HERMAN GONZALES, 

 Defendants – Appellees. 

No. 14-2197 

(D.C. No. 2:14-CV-00219-RB-GBW) 

(D. N.M.) 

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ORDER AND JUDGMENT*

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Before HARTZ, McKAY, and MATHESON, Circuit Judges. 

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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 This order and judgment is not binding precedent, except under the doctrines 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

May 14, 2015

Elisabeth A. Shumaker 

Clerk of Court

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2 

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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