___________ No. 96-3326

___________ Tracy Buchanan, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. City of Little Rock; Little Rock * Police Department, * [UNPUBLISHED] * Appellees. *

___________ Submitted: February 3, 1997 Filed: February 26, 1997

___________ Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

___________ PER CURIAM.

Tr acy Buchanan, an Arkansas prisoner, appeals the district court' s dismissal of his 42 U.S.C. § 1983 action as frivolous pursuant to former 28 U.S.C. § 1915(d) (now § 1915(e)). We vacate and remand.

On Octo ber 19, 1995, after being granted leave to proceed in form a pau peris, Buchanan filed his section 1983 complaint against the City o f Little Rock (City) and the Little Rock Police Department (Department) , alleging use of excessive force; he sent copies of his complaint to both defendants. In his c omplaint and subsequent amendments, Buchanan alleged that on o r about January 1, 1993, while effecting his arrest for publi c intoxication, two uni dentified police officers--one male and one female-- broke his left shoulder. The magistrate judge recommended dismissin g Buchanan's amended complaint without prejudice as frivolous

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pur suant to section 1915(d), reasoning that Buchanan had not alleged a n unconstitutional policy or custom, the City could not be found liable unde r
a the ory of respondeat superior, and the Department was not a separat e suable entity.

Buchanan requested and was granted additional time to reply to th e magistrate judge's re port, after he represented he was waiting to receive the arrest report andhis medical records, which he said he had requested pursuant to "the Freedom of Information Act." O n January 16, 1996, within the extended time period, Buchanan filed objections and moved to further amend his complaint by naming and substituting t he two police officers for the De partment. Buchanan appended incident reports to the amende d complaint, which reflect that he was arrested by officers Sturdivant and Jackson on December 8, 1992, for public intoxication and failure to appear

. Following de novo review, the district court adopted the magistrate judge's findings and recommendations, dismissed Buchanan's complain t withou t prejudice pursuant to section 1915(d), and denied all pendin g motions--including the motion to amend--as moot. Buchanan appeals.

Generally , the determination of whether to allow a party to amend a complaint is left to the discretion of the distr ict courts. See Humphreys

v. Roche Biomed. Lab., Inc. , 990 F.2d 1078, 1081 (8th Cir. 1993). However , in this instance we conclude that the district c ourt abused its discretion in denyi ng Buchanan leave to amend his complaint, as his proffere d amendment would have cured the defects of the original complaint. See Wal d

v. Southwestern Bell Corp. Customcare Med. Plan , 83 F.3d 1002, 1005 (8th Cir. 1996) (leave sho uld be freely granted and may be denied if amendment would be futile); see also Denton v. Hernandez , 504 U.S. 25, 34 (1992 ) (appellate court reviewing a § 1915(d) dismissal should consider whether the di strict court abused its discretion by dismissing the complain t without leave to amend where proposed

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amen dment would have cured the defect). Significantly, we note tha t although the district court's dismissal was without prejudice, the threeyear statute of limit ations expired December 8, 1995, precluding Buchanan fromre-filing his lawsuit. See Morton v. City of Little Rock , 934 F.2d 180, 183 (8th Cir. 1991) (statute of limitations in Arkansas for § 198 3 action is three years); Ark. Code Ann. § 16-56-105 (Michie 1987).

While the record is insufficient for a decisive answer on this issue, it further appears Buchanan's January 16 proposed amendment--whic h substituted the namedofficers for the Department--may relate back to the original, timely comp laint, as the proposed amendment related to the same occurrence, and the named officers may have had notice of the pending suit within the limitation s period. See Fed. R. Civ. P. 15(c)(3); Schrader v. Royal Caribbean Cruise Line, Inc. , 952 F.2d 1008, 1011 (8th Cir. 1991); se e also Urrutia v. Harrisburg County Police Dep't , 91 F.3d 451, 453-55 (3 d Cir. 1996) (abuse of discretion in denying leave to add or substitut e individual police off icers as defendants; proposed amendment would relate back to the original complaint as long as the po lice officers would not be prejudiced in maintaining defense on the merits).
As the Rule 15(c) requirements "rais e factual issues not susceptible to determination at t he appellate level," McCurry v. Allen , 688 F.2d 581, 585 (8th Cir. 1982), we remand to the district court to allow the filing of Buc hanan's amended complaint, and for a determination of th e applicability of Rule 15(c), including an evidentiary hearing if necessary

. According ly, the judgment of the district court is vacated and this matter remanded for further proceedings.

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Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.