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No. 96-3326

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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Police Department, * [UNPUBLISHED]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. *

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 Submitted: February 3, 1997

 Filed: February 26, 1997

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

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PER CURIAM.

Tracy 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 October 19, 1995, after being granted leave to proceed in forma

pauperis, Buchanan filed his section 1983 complaint against the City of

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 complaint and subsequent amendments, Buchanan alleged

that on or about January 1, 1993, while effecting his arrest for public

intoxication, two unidentified police officers--one male and one female--

broke his left shoulder. The magistrate judge recommended dismissing

Buchanan's amended complaint without prejudice as frivolous
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pursuant to section 1915(d), reasoning that Buchanan had not alleged an

unconstitutional policy or custom, the City could not be found liable under

a theory of respondeat superior, and the Department was not a separate

suable entity.

Buchanan requested and was granted additional time to reply to the

magistrate judge's report, after he represented he was waiting to receive

the arrest report and his medical records, which he said he had requested

pursuant to "the Freedom of Information Act." On January 16, 1996, within

the extended time period, Buchanan filed objections and moved to further

amend his complaint by naming and substituting the two police officers for

the Department. Buchanan appended incident reports to the amended

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 complaint

without prejudice pursuant to section 1915(d), and denied all pending

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 district 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 court abused its discretion

in denying Buchanan leave to amend his complaint, as his proffered

amendment would have cured the defects of the original complaint. See Wald

v. Southwestern Bell Corp. Customcare Med. Plan, 83 F.3d 1002, 1005 (8th

Cir. 1996) (leave should 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 district court abused its discretion by dismissing the complaint

without leave to amend where proposed
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amendment would have cured the defect). Significantly, we note that

although the district court's dismissal was without prejudice, the threeyear statute of limitations expired December 8, 1995, precluding Buchanan

from re-filing his lawsuit. See Morton v. City of Little Rock, 934 F.2d

180, 183 (8th Cir. 1991) (statute of limitations in Arkansas for § 1983

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--which

substituted the named officers for the Department--may relate back to the

original, timely complaint, as the proposed amendment related to the same

occurrence, and the named officers may have had notice of the pending suit

within the limitations period. See Fed. R. Civ. P. 15(c)(3); Schrader v.

Royal Caribbean Cruise Line, Inc., 952 F.2d 1008, 1011 (8th Cir. 1991); see

also Urrutia v. Harrisburg County Police Dep't, 91 F.3d 451, 453-55 (3d

Cir. 1996) (abuse of discretion in denying leave to add or substitute

individual police officers as defendants; proposed amendment would relate

back to the original complaint as long as the police officers would not be

prejudiced in maintaining defense on the merits).

As the Rule 15(c) requirements "raise factual issues not susceptible

to determination at the appellate level," McCurry v. Allen, 688 F.2d 581,

585 (8th Cir. 1982), we remand to the district court to allow the filing

of Buchanan's amended complaint, and for a determination of the

applicability of Rule 15(c), including an evidentiary hearing if necessary.

Accordingly, the judgment of the district court is vacated and this

matter remanded for further proceedings.
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A true copy.

Attest:

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