Paul Scinto, Sr v. Preston, No. CA-03-178-A E.D.N.C. Apr. 14 & May 26, 2005 . With regard to claims 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7071
PAUL SCINTO, SR.,
Plaintiff - Appellant,
versus
EDWARD GLENN PRESTON; RALPH MELTON, JR.; FRANK
POLUMBO; BRIAN LEMAY; ERIC WING; E&J
AUTOMOTIVE; THE CITY OF NEW BERN, NORTH
CAROLINA,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CA-03-178-A)
Submitted: February 15, 2006 Decided: March 14, 2006
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Paul Scinto, Sr., Appellant Pro Se. Gary Hamilton Clemmons,
CHESNUTT, CLEMMONS & THOMAS, PA, New Bern, North Carolina; Sarah
Lynne Ford, PARKER, POE, ADAMS & BERNSTEIN, LLP, Raleigh, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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1There are numerous Defendants, and each claim does not
necessarily implicate each Defendant.
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PER CURIAM:
Paul Scinto, Sr., appeals from the dismissal of his 42
U.S.C. § 1983 (2000) suit as frivolous and for failure to state a
claim under 28 U.S.C. § 1915(e)(2) (2000). On appeal, he pursues
the following claims: (1) Defendants1 were deliberately indifferent
to his serious medical needs, (2) Defendants conspired to falsely
arrest and prosecute him, (3) Defendant Glenn Preston lied at
Scinto’s suppression hearing, (4) Defendants improperly seized and
searched his car, (5) Defendants stole property from his car,
(6) Defendants exceeded their jurisdiction when they searched his
residence, and (7) the frivolity review procedure of § 1915(e)(2)
is unconstitutional. We have reviewed the record and find no
reversible error in the district court’s dismissal of claims (3)
through (7). Accordingly, we affirm the dismissal of those claims
for the reasons stated by the district court. See Scinto v.
Preston, No. CA-03-178-A (E.D.N.C. Apr. 14 & May 26, 2005). With
regard to claims (1) and (2), for the reasons stated below, we
vacate the district court’s dismissal and remand for further
proceedings.
Scinto claims that he was twice arrested and, while in
custody, he was denied access to insulin, even after informing the
officers that he was an insulin-dependent diabetic. He does not

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detail how long he was in custody. He also contends that, once he
was released, Defendants prevented him from recovering his insulin
from his car. In addition, he claims that the Sheriff’s Department
eventually had to take him to the hospital and that he suffered
permanent damage. The district court dismissed this claim finding
(1) the damage was done while Scinto was not in custody and
(2) Scinto cannot recover for injuries he suffered when he was not
incarcerated.
Pretrial detainees complaining of inadequate medical care
proceed under the Fourteenth Amendment, rather than the Eighth
Amendment. “[T]he Supreme Court has . . . [observed] . . . that
the Fourteenth Amendment rights of pre-trial detainees ‘are at
least as great as the Eighth Amendment protections available to a
convicted prisoner.’” Patten v. Nichols, 274 F.3d 829, 834 (4th
Cir. 2001). To prevail on an Eighth Amendment claim of inadequate
medical care, an inmate must allege acts or omissions sufficiently
harmful to constitute deliberate indifference to serious medical
needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). First, he must
objectively show that the deprivation suffered or the injury
inflicted was sufficiently serious. Farmer v. Brennan, 511 U.S.
825, 834 (1994). Then, he must show that the defendant acted with
deliberate indifference to his serious medical need. Id. A
constitutional violation may occur when the government does not
respond to the legitimate medical needs of a detainee whom it has

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reason to believe is a diabetic. Lolli v. County of Orange, 351
F.3d 410, 420 (9th Cir. 2003) (citing cases).
Here, while there is a lack of clarity as to how long
Scinto was in custody and what portion of his injury was caused
during his incarceration, Scinto clearly alleges that (1) he was
denied needed medical treatment during his detention, (2)
Defendants were aware of his condition but intentionally ignored
him, and (3) he suffered permanent damage, at least in part during
his detention. Thus, the district court incorrectly concluded that
Scinto could prove no set of facts in support of his claim which
would entitle him to relief. If Scinto can prove that Defendants’
failure to reasonably treat his diabetes while in custody caused
his injuries or exposed him to unnecessary pain and suffering, he
would be entitled to relief. Thus, we vacate the district court’s
order dismissing this claim as frivolous and for failure to state
a claim and remand for further proceedings.
Next, Scinto alleges that Defendants conspired to cause
his illegal arrest and detention by falsely accusing him of
trespass. He further alleges that Preston falsely accused him of
making threats against Preston and his family, resulting in another
arrest and detention. As support for his claims that the charges
were false, Scinto points out that, despite stating that a tape
recording of the threats existed, Defendants failed to produce the
tape recording and did not show up in court. In addition, Scinto

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provides an affidavit from the owner of the business where he was
allegedly trespassing, stating that Scinto had permission to be
there. All state charges were eventually dismissed.
While conclusory allegations of conspiracy do not state
a claim for relief under § 1983, see Phillips v. Mashburn, 746 F.2d
782, 785 (11th Cir. 1984), when a court reviews the sufficiency of
a complaint, the issue is not whether a plaintiff will ultimately
prevail, but whether the claimant is entitled to offer evidence to
support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)
(motion to dismiss). Thus, even where the face of the pleadings
tends to show that recovery would be very remote and unlikely, a
complaint cannot be dismissed unless there is no set of facts in
support of the claim which would entitle the plaintiff to relief.
Id.
Scinto’s assertions that the police and other defendants
conspired to unlawfully imprison him on false charges state a
claim. Further, we find that Scinto’s allegations are more than
merely conclusory, because he offers evidence of the falsity of the
charges and contends that Defendants failed to properly prosecute
him and that all charges against him were dismissed. Accordingly,
it was error to dismiss Scinto’s complaint without affording him
the opportunity to prove his claims. See Weisman v. LeLandais, 532
F.2d 308, 310-11 (2d Cir. 1976) (reversing dismissal of complaint

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2In addition, we affirm the dismissal of E&J Automotive as a
Defendant.
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alleging conspiracy to falsely imprison between officers and
private parties).
Thus, we vacate the portions of the district court’s
order dismissing Scinto’s claims of deliberate indifference and
conspiracy and remand for further proceedings. We affirm the
remainder of the court’s order. 2 We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART

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