REPORT & RECOMMENDATION

JAMES L. COTT, Magistrate Judge.

To the Honorable Judge George B. Daniels, United States District Judge:

Pro se Plaintiff Charles Pratt initiated this action on October 24, 2016, alleging that Defendants City of New York and Police Officer Ernesto Crisostomo violated his constitutional rights under 42 U.S.C. § 1983 by falsely arresting and unlawfully incarcerating him.1 Defendants have moved to dismiss this action for failure to prosecute under Rule 41 of the Federal Rules of Civil Procedure. For the reasons that follow, I recommend that the motion be granted and this case be dismissed without prejudice.

I. BACKGROUND

In his complaint, Pratt alleged that on January 15, 2016 he was unlawfully arrested for "rape in the first degree, criminal sexual act in the first degree, strangulation in the second degree, and criminal possession of a weapon in the fourth degree." Dkt. No. 1, ¶ 1. Pratt also alleged that he was unlawfully incarcerated for approximately 11 months after the charges against him were dismissed. Id. ¶ 2. On January 19, 2017, the Court granted Pratt's request to proceed in forma pauperis. Dkt. No. 7.

After waiving formal service, Defendants City of New York and Crisostomo filed an answer on May 1, 2017. Dkt. No. 24. On May 31, 2017, the parties appeared before me for an initial pre-trial conference, at which time discovery deadlines were established, including a deadline of September 29, 2017 for the completion of fact discovery. Dkt. No. 28.2

On August 25, 2017, the Court received a letter from Pratt dated August 22, 2017, which stated (apparently in response to Defendants' discovery requests): "I have given [the] `defendants' discovery in the original complaint . . . [under] Federal Rules of Civil Procedure, Rules 26, 33, and 34," and "the burden of discovery demand shall be proportionate to the case." Dkt. No. 29.3

On September 11, 2017, defendants filed a letter-motion to: (1) compel Pratt to respond to their interrogatories and document requests; and (2) request an extension of the fact discovery deadline by 45 days because Pratt had not responded to their discovery requests. Dkt. No. 30. On September 12, 2017, I granted both applications, thereby extending the discovery deadline to November 13, 2017 and directing Pratt to supplement his answers to defendants' discovery requests by September 29, 2017. Dkt. No. 31. I also directed Pratt to update his mailing address by September 22, 2017. Id.4

On October 19, 2017, defendants moved to compel Pratt to comply with the September 12 Order. Dkt. No. 32.5 By order dated November 1, 2017, I directed Pratt to: (1) attend a status conference on November 9, 2017; (2) prepare to address his failure to update the Court with a current mailing address; and (3) supplement his responses to defendants' discovery requests. Dkt. No. 35. In the November 1 Order, I cautioned Pratt that failure to appear at the conference could result in the dismissal of his case for failure to prosecute. Id.

On November 8, 2017, defendants informed the Court that they believed Pratt had been arrested and taken into custody at the Manhattan Detention Complex. Dkt. No. 36. Pratt did not appear at the November 9 status conference and failed to respond to the outstanding discovery requests. Dkt. No. 37. On November 9, 2017, I issued an order directing Pratt to inform the Court whether he wished to proceed with his case and to provide the Court with his current mailing address.6 Id. I cautioned Pratt again that if he did not respond to the November 9 order or otherwise indicate his interest in continuing to prosecute the case, defendants would be permitted to move to dismiss for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. Id.

Pratt did not respond to the November 9 order. Accordingly, on December 28, 2017, defendants moved to dismiss Pratt's complaint and filed a memorandum of law arguing that the Court should dismiss this case for lack of prosecution. Defendants' Memorandum of Law dated December 28, 2017 ("Def. Mem."). Dkt. No. 40. On January 26, 2018, the Court received a letter from Pratt dated December 26, 2017, with an apology for not responding to the Court. Dkt. No. 41. The letter made no mention of Pratt's intention to respond to defendants' interrogatories or document requests. Id.7

On January 29, 2018, I denied defendants' motion to dismiss for lack of prosecution without prejudice because it is preferable to resolve cases on the merits and Pratt had reappeared. Dkt. No. 42. I also extended the discovery period to March 30, 2018 and directed Pratt to provide complete responses to defendants' document requests and interrogatories by February 28, 2018. Id. Finally, I put Pratt on notice that a failure to provide interrogatory answers and the requested documents by February 28, 2018 would be considered a failure to prosecute. Id.

On March 14, 2018, and then again by letter dated May 29, 2018, defendants sought to renew their motion to dismiss for failure to prosecute due to Pratt's failure to respond to defendants' discovery requests. Dkt. Nos. 45, 47. By order dated March 22, 2018, I directed Pratt to respond to defendants' motion by April 20, 2018 and advised that otherwise the Court would deem defendants' motion to be unopposed. Dkt. No. 46. To date, Pratt has not submitted any opposition papers.

II. ANALYSIS

A. Legal Standard.

A plaintiff has the duty to diligently advance his case, and if he fails to do so, a court may dismiss the action under Federal Rule of Civil Procedure 41(b) for failure to prosecute. See, e.g., Hardaway v. Agyemong, 572 F. App'x 11, 12 (2d Cir. 2014); United States ex rel. Pervez v. Maimonides Med. Ctr., 415 F. App'x 316, 317 (2d Cir. 2011) (citing Lyell Theater Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982)). Pursuant to Rule 41(b), a court may dismiss an action where plaintiff "fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order."

A court generally must be solicitous of pro se litigants, particularly with respect to procedural issues, see Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996), and protective of their right to be heard, especially when they are in prison, as Pratt now is. See, e.g., Sonachansinqh v. Lee, No. 10-CV-9410 (JPO) (DCF), 2012 WL 4793873, at *2 (S.D.N.Y. Oct. 9, 2012) ("Given Plaintiff's position as a pro se litigant in a prison, this Court must be careful to be especially protective of Plaintiff's right to be heard."). Yet even unrepresented and incarcerated plaintiffs must comply with court orders and diligently prosecute their cases; their failure to do so may constitute grounds for dismissal. See, e.g., Yadav v. Brookhaven Nat. Lab., 487 F. App'x 671, 672 (2d Cir. 2012); LeSane v. Hall's Sec. Analyst Inc., 239 F.3d 206, 209 (2d Cir. 2001). A pro se plaintiff's refusal to appear at court conferences and failure to provide a mailing address may also be grounds for dismissal. See, e.g., Middleton v. United States, No. 10-CV-6057 (JFB) (ETB), 2011 WL 7164452, at *5-7 (E.D.N.Y. June 28, 2011), adopted by, 2012 WL 394559 (E.D.N.Y. Feb. 7, 2012).

When considering whether to dismiss a complaint pursuant to Rule 41(b), a court must weigh five factors:

Kammona v. Midsummer Inv., Ltd., 687 F. App'x 112, 113-14 (2d Cir. 2017) (citing Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014)). However, no single factor is dispositive, and the Court should consider all the facts and circumstances of the case. Baptiste, 768 F.3d at 216; accord U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). Weighing these factors together, the Court finds that Pratt's complaint should be dismissed without prejudice for his failure to prosecute.

B. Pratt Has Failed to Prosecute His Case.

First, Pratt has repeatedly failed to comply with court-ordered discovery deadlines. Defendants first served Pratt with interrogatories and a request for production of documents on May 31, 2017. See Dkt. No. 30. In the following months, defendants contacted Pratt on multiple occasions to try to obtain his responses to these requests. Dkt. Nos. 30, 40; Def. Mem. at 1-2, 6-7.8 The Court also extended the discovery deadline on two occasions to provide Pratt with a sufficient opportunity to respond. Dkt. Nos. 31, 42. Pratt has now failed to respond to the discovery requests for approximately one year. While courts have observed that there is "no `magic number'" for the length of noncompliance, Antonios A. Alevizopoulos & Associates, Inc. v. Comcast Int'l Holdings, Inc., No. 99-CV-9311 (SAS), 2000 WL 1677984, at *2 (S.D.N.Y. Nov. 8, 2000) (quoting Copeland v. Rosen, 194 F.R.D. 127, 132 (S.D.N.Y. 2000)), courts have deemed delays of three months and less sufficient to warrant dismissal. See, e.g., Toliver v. Okvist, No. 10-CV-5354 (DAB) (JCF), 2014 WL 2535111, at *2 (S.D.N.Y. June 5, 2014) (noncompliance for five weeks), adopted by, 2015 WL 8543103 (S.D.N.Y. Dec. 10, 2015); Holcombe v. Skupien, No. 14-CV-1448 (PAC) (JLC), 2014 WL 6879077, at *2 (S.D.N.Y. Dec. 5, 2014) (noncompliance for "nearly three months"), adopted by, 2015 WL 524992 (S.D.N.Y. Feb. 9, 2015); Yadav, 487 F. App'x at 672-73 (three months); Dong v. United States, No. 02-CV-7751 (SAS), 2004 WL 385117, at *3 (S.D.N.Y. Mar. 2, 2004) (two months).

Second, through the Court's orders and defendants' motion papers, Pratt had sufficient notice that his failure to comply with court-ordered deadlines would result in dismissal of his case. Dkt. Nos. 31, 35, 37, 42; see, e.g., Djangmah v. Hiram, No. 14-CV-732 (PKC) (JLC), 2015 WL 5675061, at *3 (S.D.N.Y. Sept. 25, 2015) ("notice provided in multiple court orders" sufficient to inform plaintiff that "failure to abide by court orders could result in the dismissal of his case"), adopted by, 2017 WL 1405751 (S.D.N.Y. Apr. 18, 2017); Virola v. Entire GRVC Dep't of Mental Health Hygiene Servs., No. 12-CV-1005 (ER), 2014 WL 793082, at *3 (S.D.N.Y. Feb. 21, 2014) (defendants' motion papers and court's order deemed sufficient notice); George v. City of New York, No. 12-CV-6365 (PKC) (JLC), 2013 WL 5943206, at *4 (S.D.N.Y. Nov. 6, 2013) (single court order deemed "meaningful, non-technical notice").

Third, the delay caused by Pratt's failures to abide by Court directives concerning discovery prejudices defendants. The Second Circuit has observed that "[p]rejudice to defendants resulting from unreasonable delay may be presumed." Shannon v. General Elec. Co., 186 F.3d 186, 195 (2d Cir. 1999) (quoting Lyell Theater Corp. v. Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982)). Whether defendants have been prejudiced "turns on the degree to which the delay was lengthy and inexcusable." United States v. Gellerstein, No. 08-CV-2702 (KAM) (JO), 2011 WL 710446, at *6 (E.D.N.Y. Feb. 22, 2011) (quoting U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 256 (2d Cir. 2004)) (quotations omitted). "Thus, where `delay is more moderate or excusable, the need to show actual prejudice is proportionally greater.'" Id. (quoting Drake, 375 F.3d at 256). Here, Pratt's failure to comply with discovery obligations, including: (1) attending a court-ordered status conference; (2) providing requested documents; and (3) responding to interrogatories, prejudices defendants by hindering their ability to defend their case. See Vazquez v. Davis, No. 12-CV-7630 (ER), 2014 WL 5089457, at *5 (S.D.N.Y. Sept. 19, 2014) (finding prejudice where plaintiff had not provided discovery and discovery period expired); Sanders v. Ramos, No. 12-CV-5302 (GBD) (JCF), 2013 WL 592670, at * 3 (S.D.N.Y. Jan. 24, 2013) (finding prejudice where plaintiff's failure to comply with court's order impeded defendants' investigation of allegations in complaint and prevented case from moving forward), adopted by, 2013 WL 594229 (S.D.N.Y. Feb. 14, 2013).

Furthermore, "as the salient events recede[ ] even [further] into the past," defendants' ability to defend against the action is prejudiced. Rusza v. Rubenstein & Sendy Att'ys at Law, 520 F.3d 176, 177 (2d Cir. 2008). On May 31, 2017, Defendants first served their interrogatories and document requests on Pratt. Dkt. No. 30, at 1. Pratt's responses were due in early July 2017. See Fed. R. Civ. P. 33(b)(2) (responses to interrogatories due 30 days after service); Fed. R. Civ. P. 34(b)(2)(A) (responses to requests for production of documents due 30 days after service). Defendants' attempts to obtain interrogatories and document requests have now been frustrated for almost one year. See Dkt. No. 30.

Fourth, balancing the effect of calendar congestion against Pratt's due process rights also weighs in favor of dismissal. Generally, "[t]here must be compelling evidence of an extreme effect on court congestion before a litigant's right to be heard is subrogated to the convenience of the court." Djangmah, 2015 WL 5675061, at *3 (quoting Lucas, 84 F.3d at 535-36). While Pratt's delinquency has not been especially lengthy relative to other cases, see, e.g., Sonachansingh v. Lee, No. 10-CV-9410 (JPO) (DCF), 2012 WL 4793873, at *2 (S.D.N.Y. Oct. 9, 2012), "[c]ourts in this district have held that calendar congestion outweighed plaintiff['s] opportunity to be heard when the plaintiff has rebuffed opportunities to be heard and failed to attend judicial conferences." Djangmah, 2015 WL 5675061, at *3 (quoting St. Prix v. Sirus XM Satellite Radio, No. 11-CV-1506 (CM) (KNF), 2014 WL 405812, at *4 (S.D.N.Y. Jan. 29, 2014)); see also Feurtado v. City of New York, 225 F.R.D. 474, 480 (S.D.N.Y. 2004) ("Because [plaintiff] has made no effort to comply with the Court's directives or to prosecute his action, it would be unfair to the numerous other litigants who await the attention of this Court to permit [plaintiff's] suit to remain on the Court's docket.").

Fifth, contrary to defendants' motion, dismissal without prejudice is the appropriate remedy.9 As a threshold matter, "[a] monetary sanction would be futile given [Pratt's] in forma pauperis status." Djangmah, 2015 WL 5675061 at *4 (citing Middleton v. United States, No. 10-CV-6057 (JFB) (ETB), 2011 WL 7164452, at *6 (E.D.N.Y. June 28, 2011), adopted by, 2012 WL 394559 (E.D.N.Y. Feb. 7, 2012)). In addition, a further warning would not be appropriate, because the Court already warned Pratt several times that failure to respond to court orders would result in dismissal of his case for failure to prosecute. Dkt Nos. 35, 37, 42; Vazquez, 2014 WL 5089457, at *5 ("[B]ecause the plaintiff has already been warned that failure to respond would result in dismissal, it is doubtful that further warnings would be any more effective."). Moreover, dismissal is warranted when a plaintiff's actions prevent defendants from being able to prepare for trial. See Taylor v. New York City Police Dep't, No. 15-CV-1536 (PAC) (JCF), 2017 WL 2610511, at *3 (S.D.N.Y. June 15, 2017) ("Since the defendants cannot adequately prepare for trial . . . [n]o sanction short of dismissal would be appropriate here.") (citation and quotations omitted), adopted by, 2017 WL 5591634 (S.D.N.Y. Nov. 20, 2017); Toliver v. Okvist, No. 10-CV-5354 (DAB) (JCF), 2014 WL 2535111, at *3 (S.D.N.Y. June 5, 2014) (forgoing lesser sanctions because "defendants have also suffered prejudice to their ability to prepare for trial"), adopted by, 2015 WL 8543103 (S.D.N.Y. Dec. 10, 2015).

Should Pratt decide to re-file this case and pursue his claims, he appears to be within the three-year statute of limitations for Section 1983 claims given that the incident forming the basis of his complaint is alleged to have occurred on January 15, 2016. See Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009) (Section 1983 claims have three-year limitations period). Accordingly, dismissing Pratt's case without prejudice "allows the Court to dispose of this case, which plaintiff has seemingly abandoned, while allowing plaintiff the opportunity to re-file the suit should he choose to do so in the future." Coleman v. Doe, No. 05-CV-5849 (JG) (LB), 2006 WL 2357846, at *3 (E.D.N.Y. Aug. 14, 2006); accord Hicks v. Stermer, No. 9:10-CV-1177 (LEK) (DEP), 2011 WL 3841581, at *1 (N.D.N.Y. Aug. 24, 2011) (dismissing complaint without prejudice where statute of limitations had not run); see also Thrall v. Cent. N.Y. Reg'l Transp. Auth., 399 F. App'x 663, 666 (2d Cir. 2010) (remanding to consider dismissal without prejudice in pro se case); Virola v. Entire GRVC Dep't of Mental Health Hygiene Servs., No. 12-CV-1005 (ER), 2014 WL 793082, at *4 (S.D.N.Y. Feb. 21, 2014) (dismissal without prejudice for pro se plaintiff whose case had not impacted court's trial calendar); cf. Rudder v. Jimenez, No. 11-CV-3453 (VSB) (JLC), 2014 WL 1349047, at *6 (S.D.N.Y. Apr. 7, 2014) (dismissal without prejudice would be futile where statute of limitations had elapsed), adopted by, 2014 WL 2855012 (S.D.N.Y. June 23, 2014).

III. CONCLUSION

For the foregoing reasons, I recommend that Pratt's complaint be dismissed without prejudice.

PROCEDURE FOR FILING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels.

FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. If Pratt does not have access to cases cited herein that are reported on Westlaw, he should request copies from counsel for Defendant City of New York. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).

A copy of this Report and Recommendation has been mailed to the following:

Charles Pratt 01129521Z10 Otis Bantum Correctional Center 16-00 Hazen Street East Elmhurst, NY 11370

1750 East 172nd Street, Apt #4L Bronx, New York, 10472