DAVIS v. UNDERWOOD

Filing 11

MEMORANDUM ORDER adopting 6 REPORT AND RECOMMENDATION re 5 Petition for Writ of Habeas Corpus as the opinion of this Court; overruling 9 Objections. The Petition (Docket No. 5 ) is DISMISSED, without prejudice, for failure to exhaust administrative remedies; the Clerk of Court shall mark this case CLOSED. Signed by Judge Nora Barry Fischer on 1/6/2025. (lyk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LOVELL A. DAVIS, III,
Petitioner,
v.
MICHAEL UNDERWOOD, WARDEN,
F.C.I. LORETTO,
Respondent.

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Civil Action No. 3:24-47
Judge Nora Barry Fischer
Magistrate Judge Keith Pesto

MEMORANDUM ORDER
AND NOW, this 6th day of January, 2025, upon consideration of the Report and
Recommendation filed by United States Magistrate Judge Keith A. Pesto on March 15, 2024,
(Docket No. 6), recommending that the § 2241 habeas petition filed by Petitioner Lovell A.
Davis, III against Warden Michael Underwood, be dismissed preservice either with prejudice
because he failed to meet the pleading standards for habeas petitions and his petition consisted of
“a first page alleging that petitioner was told in February 2024 that he is not eligible to have
ETCs applied to his sentence under the First Step Act, a last page asking for a writ granting
relief, and 22 pages in between that are nothing more than photocopied cases, statutes, and
treatises, some with no conceivable relevance,” or, alternatively, that the petition be dismissed,
without prejudice, because he failed to exhaust administrative remedies, Petitioner’s unsigned
Response/Objections which was timely filed on April 1, 2024, and includes a request for
administrative remedy form but no indication that he completed any other level of administrative
review such that he has failed to establish that he exhausted administrative remedies prior to
initiating this habeas action, (Docket No. 9), and this matter having been recently reassigned to

the undersigned for prompt disposition of the matter, (Docket No. 10), and upon independent
review of the record and de novo consideration of the Magistrate Judge’s Report and
Recommendation, which is ADOPTED as the opinion of this Court,
IT IS HEREBY ORDERED that Petitioner’s Objections (Docket No. 9) are
OVERRULED, as dismissal of this action, without prejudice, for failure to exhaust
administrative remedies, is consistent with rulings made in this District, see e.g., SaavedraRamirez v. Peters, No. 3:23-CV-268-KAP, 2024 WL 2136679, at *2 (W.D. Pa. Mar. 12, 2024),
report and recommendation adopted, No. CV 3:23-268, 2024 WL 1550379 (W.D. Pa. Apr. 10,
2024), appeal dismissed sub nom. Saavedra-Ramirez v. Dir. Fed. Bureau of Prisons, No. 241738, 2024 WL 4677955 (3d Cir. July 18, 2024) (District Court upholding dismissal for failure
to exhaust when the habeas petition was filed prior to the exhaustion of administrative remedies
and appeal dismissed),
IT IS FURTHER ORDERED that the Petition (Docket No. 5) is DISMISSED, without
prejudice, for failure to exhaust administrative remedies; and,
IT IS FURTHER ORDERED that the Clerk of Court shall mark this case CLOSED.
s/Nora Barry Fischer
Nora Barry Fischer
Senior U.S. District Judge

Dated: January 6, 2025
cc/ecf: Magistrate Judge Keith A. Pesto
cc:

Lovell A. Davis, III
BOP Reg. No. 71819-509

F.C.I. Loretto
P.O. Box 1000
Cresson, PA 16630 (via first class mail)

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