Librun v. Griffis

District Court of Appeal of Florida

Librun v. Griffis

808 So. 2d 288, 2002 Fla. App. LEXIS 2278, 2002 WL 341108

CourtDistrict Court of Appeal of Florida

DecidedMarch 6, 2002

DocketNo. 1D00-4277

StatusPublished

This text of 808 So. 2d 288 (Librun v. Griffis) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Librun v. Griffis, 808 So. 2d 288, 2002 Fla. App. LEXIS 2278, 2002 WL 341108 (Fla. Ct. App. 2002).

Pincite

Opinions

PER CURIAM.

Appellant appeals the trial court’s order dismissing, with prejudice, his civil rights suit for failure to prosecute. Appellant argues the trial court abused its discretion by dismissing Appellant’s suit because personnel with the Department of Corrections (Appellees), the defendants below, prevented Appellant from prosecuting his suit by transferring him; denying him access to pens, paper and his legal materials; and failing to forward notice that his suit was being dismissed for failure to prosecute. We affirm in part, and remand with instructions.

[289]*289The one-year period of inactivity, which provides the basis for dismissal for failure to prosecute, is measured backwards from the time preceding the filing of the motion to dismiss for lack of prosecution. See Frohman v. Bar-Or, 660 So.2d 633 (Fla.1995). Appellant’s civil rights suit was filed on January 27, 1995; the trial court’s Notice of Lack of Prosecution was filed on May 16, 1996; and Appellant’s motion to set aside the order dismissing his suit for failure to prosecute was filed on March 20, 2000. The record indicates Appellant took no action on his case for the year preceding the Notice of Lack of Prosecution. Moreover, there is no evidence that Appellant requested his legal materials before February 1996, when he was first transferred, and Appellant does not allege he lacked access to his legal materials during this time. On these facts, the trial court did not abuse its discretion by dismissing Appellant’s suit for failure to prosecute. However, the dismissal should have been without prejudice. See Wright v. Allen, 611 So.2d 23 (Fla. 1st DCA 1992).

Accordingly, we AFFIRM the dismissal for failure to prosecute, but REMAND for the trial court to enter an amended order of dismissal, without prejudice.

WOLF and WEBSTER, JJ. concur; BROWNING, J., concurring in part and dissenting in part, with opinion.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

Appellant appeals the trial court’s order dismissing, with prejudice, his civil rights suit for failure to prosecute. Appellant argues the trial court abused its discretion by dismissing Appellant’s suit because personnel with the Department of Corrections (Appellees), the defendants below, prevented Appellant from prosecuting his suit by transferring him; denying him access to pens, paper and his legal materials; and failing to forward notice that his suit was being dismissed for failure to prosecute. We affirm in part, and remand with instructions.

[289]*289The one-year period of inactivity, which provides the basis for dismissal for failure to prosecute, is measured backwards from the time preceding the filing of the motion to dismiss for lack of prosecution. See Frohman v. Bar-Or, 660 So.2d 633 (Fla.1995). Appellant’s civil rights suit was filed on January 27, 1995; the trial court’s Notice of Lack of Prosecution was filed on May 16, 1996; and Appellant’s motion to set aside the order dismissing his suit for failure to prosecute was filed on March 20, 2000. The record indicates Appellant took no action on his case for the year preceding the Notice of Lack of Prosecution. Moreover, there is no evidence that Appellant requested his legal materials before February 1996, when he was first transferred, and Appellant does not allege he lacked access to his legal materials during this time. On these facts, the trial court did not abuse its discretion by dismissing Appellant’s suit for failure to prosecute. However, the dismissal should have been without prejudice. See Wright v. Allen, 611 So.2d 23 (Fla. 1st DCA 1992).

Accordingly, we AFFIRM the dismissal for failure to prosecute, but REMAND for the trial court to enter an amended order of dismissal, without prejudice.

WOLF and WEBSTER, JJ. concur; BROWNING, J., concurring in part and dissenting in part, with opinion.

Cite This Page — Counsel Stack

Bluebook (online)

808 So. 2d 288, 2002 Fla. App. LEXIS 2278, 2002 WL 341108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/librun-v-griffis-fladistctapp-2002.

Opinions

Related

Cite This Page — Counsel Stack