                             UNPUBLISHED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Affirmed in part; vacated and remanded in part by unpublished per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Unpublished opinions are not binding precedent in this circuit.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).
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



     1
      There are numerous Defendants,    and   each   claim   does    not
necessarily implicate each Defendant.

                               - 2 -
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


                                - 3 -
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


                                   - 4 -
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




                               - 5 -
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




     2
      In addition, we affirm the dismissal of E&J Automotive as a
Defendant.

                                 - 6 -
