DAVID N. HURD United States District Judge
APPEARANCES: KEITH I. HURST
Plaintiff, pro se
105 Hunter Avenue, #2
Albany, NY 12206 BARBARA D. UNDERWOOD
Attorney General for the State of New York
Attorney for Defendants
The Capitol
Albany, NY 12224 OF COUNSEL: MARK G. MITCHELL, ESQ.
Ass't Attorney General DAVID N. HURD United States District Judge DECISION and ORDER
Pro se plaintiff Keith I. Hurst brought this civil rights action pursuant to 42 U.S.C. § 1983. On July 20, 2018, the Honorable Thérèse Wiley Dancks, United States Magistrate Judge, advised by Report-Recommendation that defendants' motion for summary judgment be granted in part and denied in part. No objections to the Report-Recom mendation were filed.
Based upon a careful review of the Report-Recommendation, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1).
Therefore, it is
ORDERED that
1. Defendants' motion for summary judgment is GRANTED in part and DENIED in part;
2. Defendants' motion for summary judgment dismissing plaintiff's Eighth Amendment excessive force claim against defendants in their official capacities is GRANTED and those claims are DISMISSED;
3. Defendants' motion for summary judgment dismissing plaintiff's Eighth Amendment excessive force claim based on non-exhaustion is DENIED without prejudice to defendants renewing this argument and requesting an exhaustion hearing; and
4. Trial is scheduled for February 5, 2019 in Utica, New York.
IT IS SO ORDERED.
/s/_________
United States District Judge Dated: August 29, 2018
Utica, New York.