UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________

NICHOLAS OUDEKERK,

Plaintiff,

-v- 9:24-CV-113 (AJB/MJK)

WANNINGER et al.,

Defendants. _____________________________________

APPEARANCES: OF COUNSEL:

NICHOLAS OUDEKERK Plaintiff, Pro Se 15509 Warren County Correctional Facility 1400 State Route 9 Lake George, NY 12845

HON. LETITIA JAMES ALEXANDRA L. GALUS, ESQ. New York State Attorney General Assistant Attorney General Attorneys for Defendants The Capitol Albany, NY 12224

Hon. Anthony Brindisi, U.S. District Judge:

ORDER ON REPORT & RECOMMENDATION

On January 23, 2024, pro se plaintiff Nicholas Oudekerk (“plaintiff”) filed this

action alleging that five John Doe correction officers violated his constitutional rights on October 30, 2022, while he was being held in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) at Mid-State Correctional Facility. Dkt. No. 1. Along with his complaint, plaintiff moved for leave to proceed in forma pauperis (“IFP Application”). Dkt. Nos. 2, 4, 5. The matter was initially assigned to U.S. District Judge David N. Hurd, who granted the IFP Application and concluded that plaintiff’s § 1983 Eighth Amendment excessive force claims survived initial review against the five Doe correction officers. Dkt. No. 7. Pursuant to Valentin v. Dinkins,

(2d Cir. 1997) (per curiam), Judge Hurd requested assistance from the

New York State Attorney General’s Office in ascertaining the identities of the Doe defendants who were involved in the use-of-force incident with plaintiff on October 30, 2022. Dkt. No. 7. Thereafter, the Attorney General filed a response, Dkt. No. 9, and plaintiff submitted an amended complaint that identified four of the five Does: (1) Correction Officer Wanninger; (2) Correction Officer Pekala; (3) Correction Sergeant Congleton; and (4) Deputy Superintendent Burns. Dkt. No. 11. Judge Hurd reviewed plaintiff’s amended complaint, concluded that the § 1983 Eighth Amendment excessive force claims survived initial review against defendants Wanninger and Pekala, ordered service on those defendants, and dismissed the remaining claims. Dkt. No. 12. After defendants Wanninger and Pekala answered the amended complaint, Dkt. No. 22,

and the matter was reassigned to this Court, Dkt. No. 37, plaintiff moved to compel discovery, Dkt. No. 42, and for summary judgment, Dkt. No. 46. Defendants opposed, Dkt. Nos. 44, 59, and plaintiff replied, Dkt. No. 59, 63. On October 31, 2025, U.S. Magistrate Judge Mitchell J. Katz granted in part and denied in part plaintiff’s motion to compel. Dkt. No. 66. At that time, Judge Katz advised by Report & Recommendation (“R&R”) that plaintiff’s motion for summary judgment should be denied based on the existence of issues of fact. See id. Neither party has lodged objections. The time period in which to do so has expired. See Dkt. No. 66. Upon review for clear error, the R&R will be accepted and adopted. See FED. R. Civ. P. 72(b). Therefore, it is ORDERED that 1. The Report & Recommendation (Dkt. No. 66) is ACCEPTED; and 2. Plaintiff's motion for summary judgment (Dkt. No. 46) is DENIED. The Clerk of the Court is directed to terminate the pending motions. IT IS SO ORDERED.

Dated: November 25, 2025 ° Utica, New York. Anthony J. Brindisj U.S. District a

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