
    Jean-Henriquez LIBRUN, Appellant, v. J.C. GRIFFIS, Corrections Sgt.; Tate, Corrections Lieutenant; M.D. Howe, Corrections Inspector; D.C. O’Neill, Corrections Superintendent; Michael W. Moore, Corrections Secretary, Appellees.
    No. 1D00-4277.
    District Court of Appeal of Florida, First District.
    March 6, 2002.
    Pro se, for Appellant.
    Robert A. Butterworth, Attorney General; Pamela Lutton-Shields, Assistant Attorney General, Tallahassee, for Appellees.
   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.

The 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.

BROWNING, J.

concurring in part and dissenting in part.

I agree with the majority to the extent that, if dismissal was warranted, it should have been without prejudice. See Wright v. Allen, 611 So.2d 23 (Fla. 1st DCA 1992). However, I dissent from the majority opinion because, in my judgment, the trial court abused its discretion by dismissing Appellant’s motion without conducting an evidentiary hearing.

Appellant alleged that Appellees, for years, consistently denied Appellant access to pens, paper, and his legal materials. Appellant’s allegations are supported by a plethora of requests to Appellees to provide these materials, and Appellees’ responses denying the requests. Further, Appellant’s allegations are supported by a report from a federal court magistrate, wherein the magistrate found the Department of Corrections (DOC), by whom Ap-pellees are employed, continued to move for dismissal of Appellant’s federal civil rights suit, for failure to prosecute, while simultaneously denying Appellant access to the materials with which to prosecute his claim. Significantly, the magistrate noted DOC had failed to provide Appellant access to his legal materials despite being asked to do so by the federal court, the Attorney General, and defense counsel. The record indicates Appellant began requesting his legal materials in March 1996 but did not receive them until February 23, 2000.

The majority is correct that the record indicates Appellant took no action on his suit in the year preceding entry of the trial court’s March 1996 Notice of Failure to Prosecute. However, the trial court dismissed the suit due to the lack of pleadings between June 1996 and March 2000. During that time frame, there is ample record support for Appellant’s allegations that Appellees denied him access to pen, paper, and his legal materials. On these facts, the trial court should have held an evidentiary hearing to determine whether Appellant had good cause for failure to prosecute his claim before dismissing the suit with prejudice. See Frohman v. Bar-Or, 660 So.2d 633 (Fla.1995) (holding evi-dentiary hearing required to determine whether good cause existed to preclude dismissal for failure to prosecute, where party opposing dismissal stated two reasons for inactivity); see also Torres v. Gomez, 683 So.2d 190 (Fla. 3d DCA 1996) (holding evidentiary hearing required to determine whether nonrecord activity constituted good cause to prevent dismissal for failure to prosecute); Lakeside Regent, Inc. v. Cohen, Scherer & Cohn, P.A., 642 So.2d 148 (Fla. 4th DCA 1994) (holding evidentiary hearing required to determine whether, under disputed facts, good cause existed to prevent dismissal for failure to prosecute).

In my judgment, the unusual facts asserted by Appellant and supported by the record present facially sufficient grounds for relief. In my opinion, the trial court abused its discretion by dismissing Appellant’s motion without conducting an evi-dentiary hearing. I would reverse and remand this case for an evidentiary hearing on Appellant’s motion. Accordingly, I respectfully dissent. 
      
      . The civil rights action which is the subject of this appeal was dismissed before the magistrate filed his report in the federal suit. However, the federal suit was pending during the same time-frame in which Appellant alleges sub judice Appellees withheld his legal materials.
     