The opinion of the court was delivered by: VAN ANTWERPEN
VAN ANTWERPEN, UNITED STATES DISTRICT JUDGE
Before the court is the plaintiff's motion for leave to amend the pro se complaint and to enlarge time for discovery. The plaintiff wishes to amend the complaint by adding two defendants: Bensalem Township and the Bucks County District Attorney's Office. For the reasons given below, the plaintiff's motion shall be granted.
On December 30, 1985, the plaintiff was arrested in a friend's apartment and charged with possession of a controlled or a counterfeit controlled substance and possession of a controlled or a counterfeit controlled substance with intent to deliver. Defendants Carroll and Maust were the police involved in the arrest. At the time of the arrest, the illegal substances appeared to be counterfeit methamphetamine, lysergic acid diethylamide (LSD), and psilocybin mushroom. On January 31, 1986, a report from the Bucks County Crime Lab, an arm of the Bucks County District Attorney's Office, indicated that no controlled substances were detected in the substances taken from the plaintiff's possession. This report was received by the Bensalem Township Police Department on February 4, 1986.
On February 18, 1986, the criminal complaint was amended to charge the plaintiff with possession and possession with intent to deliver three counterfeit controlled substances. This amended complaint was signed by defendant Carroll. At the preliminary hearing held on February 18, 1986, the defendant was held over for trial. Detective Clee of the Bensalem Township Police Department prosecuted and defendants Maust and Carroll testified. Plaintiff remained incarcerated until May 10, 1986, when all the charges against him were nol prossed since the substances did not "qualify as counterfeit (noncontrolled substance)", in the words of the document commemorating the nol pros.
On March 31, 1986, while still incarcerated, the plaintiff drafted a pro se complaint under 42 U.S.C. § 1983 on a form available for such complaints. He wished to proceed in forma pauperis. The original defendants were Officers Carroll and Maust, their families, and the Police Department of Bensalem Township. On June 20, 1986, the complaint was filed in the U.S. District Court for the Eastern District of Pennsylvania. On June 20, 1986, Judge Scirica granted leave to proceed in forma pauperis, but dismissed the complaint as to the families of the police officers and as to the Police Department of Bensalem Township. The latter was dismissed as a defendant because the plaintiff had failed to allege an official policy or custom which was at the source of a constitutional violation. On November 18, 1987, the plaintiff retained counsel. On February 20, 1988, the plaintiff moved to amend the complaint by adding as defendants Bensalem Township and the Bucks County District Attorney's Office and to extend time for discovery. The defendants object to this proposed amendment to the complaint, raising arguments based on prejudice, failure to adduce evidence of a "policy" underlying the deprivation of constitutional rights on the part of the township, and the bar of the statute of limitations.
Where a responsive pleading has been filed, a party may amend its own pleading "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The decision whether to grant leave to amend rests within the sound discretion of the trial court. Robinson v. Cuyler, 511 F. Supp. 161 (E.D. Pa. 1981). The U.S. Supreme Court has articulated the following standard to be applied in evaluating a party's motion to amend:
"If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason - such as undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. - the leave sought should, as the rules require, be "freely given.'
Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). With this standard in mind, we shall now consider the plaintiff's motion to amend the complaint.
The defendants basically argue that the motion to amend is prejudicial, futile, and time-barred. We shall address each of these arguments in turn.
The defendants argue that plaintiff's long failure to pursue his action from the time of his release from prison on May 10, 1986 until he retained counsel on or about November 18, 1987, should be taken into account in deciding the instant motion. They also argue that allowing the amendment requested by the plaintiff will seriously retard the trial of the case because of the necessity for new discovery. Both of these factors, they say, must be considered in deciding the issue of prejudice.
As the Third Circuit has said:
"It is well-settled that prejudice to the non-moving party is the touchstone for the denial of an amendment. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S. Ct. 795, 28 L. Ed. 2d 77 (1971); Kerrigan's Estate v. Joseph E. Seagram & Sons, 199 F.2d 694, 696 (3d Cir. 1952); Moore § 15.08, at 897; Wright & Miller § 1487, at 428. In evaluating the extent of prejudice courts may inquire into the hardship to ...