UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL S. SCZYREK, :

:

 Petitioner : No. 4:05-CV-0975

:

vs. : Petition Filed 05/16/05

:

COMMONWEALTH OF PENNSYLVANIA, : (Judge Muir)

LACKAWANNA COUNTY PRISON, and :

WARDEN PAUL L. JENNINGS, :

: 

Respondents : (Magistrate Judge Smyser)

ORDER

June 28, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On May 16, 2005, Petitioner Michael S. Sczyrek, while an

inmate at the Lackawanna County Prison in Scranton, Pennsylvania,

filed a habeas corpus petition. Sczyrek alleges in the petition

that the judge who sentenced him in the Court of Common Pleas of

Lackawanna County has signed an order transferring Sczyrek from the

community service program to the work release program, yet the

authorities at the Lackawanna County Prison will not effect the

transfer.

On May 26, 2005, the Clerk of Court issued an order requiring

Sczyrek to pay, within 30 days after the date of the order, either

the $5.00 filing fee or an application to proceed in forma

pauperis.

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This case was assigned to us but referred to Magistrate Judge

J. Andrew Smyser for preliminary consideration. On May 27, 2005,

Magistrate Judge Smyser issued a report recommending that Sczyrek’s

petition be denied for his failure to exhaust his available state

remedies. Magistrate Judge Smyser notes in his report that Sczyrek

apparently intended to file his petition in the Court of Common

Pleas of Lackawanna County because that is the court identified in

the caption of Sczyrek’s petition. In addition, nothing in the

body of the petition indicates that Sczyrek has made any attempt to

pursue any relief in the Pennsylvania state courts. 

The time allowed for Sczyrek to file objections to the Report

and Recommendation expired on June 16, 2005, and to this date no

objections have been filed. Our review of the docket shows that on

June 1, 2005, the copy of the Report and Recommendation sent by the

court to Sczyrek was returned with the following notation on the

envelope: “RTS not at LCP.” We interpret the notation to mean

“return to sender [Sczyrek] not at Lackawanna County Prison.” A

second attempt by the Clerk of Court to send the Report and

Recommendation to Sczyrek yielded the same result. An entry to the

docket made by the Clerk of Court on June 16, 2005, states the

following: “Contacted prison and no forwarding address.”

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When no objections are filed to the report of a Magistrate

Judge, we need only review that report as we in our discretion deem

appropriate. Thomas v. Arn, 474 U.S. 145, 151-52 (1985).

It is well settled that, in the absence of exceptional

circumstances, a federal court will not entertain a habeas corpus

petition until the petitioner has exhausted his or her available

state remedies. 28 U.S.C. §2254(b), (c); Picard v. Connor, 404 U.S.

270, 275 (1971); Doctor v. Walter, 96 F.3d 675 (3d Cir. 1996). A

state prisoner is required to provide the state courts with “the

first opportunity to pass on alleged defects in the criminal

proceedings leading to their convictions.” Santana v. Fenton, 685

F.2d 71, 77 (3d Cir. 1982), cert. denied, 459 U.S. 1115 (1983). 

Sczyrek bears the burden of proving that he has exhausted all

available state remedies. Toulson v. Beyer, 987 F.2d 984, 987 (3d

Cir. 1993). 

Sczyrek is clearly required to exhaust his state law postconviction remedies before filing a federal habeas petition unless

exceptional circumstances exist. Sczyrek has not asserted that

such circumstances exist. 

The claim in Sczyrek’s pending habeas petition has not been

exhausted in state court. We agree with the Magistrate Judge’s

conclusion that the petition should be dismissed for that reason.

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The record also establishes that Sczyrek has failed to keep

the court informed of his correct address. Local Rule 83.18,

entitled “Appearance of Parties Not Represented by Counsel,” states

in part that “[w]henever a party by whom ... an initial paper is

offered for filing is not represented in the action, such party

shall maintain on file with the clerk a current address at which

all notices and copies of ... papers in the action may be served

upon such party.” Sczyrek has violated that rule.

We further note that the deadline for Sczyrek to comply with

the order of May 26, 2005, by either paying the filing fee or

filing an application to proceed in forma pauperis expired on June

27, 2005. Sczyrek has violated that order by failing to respond to

it in any manner. 

Sczyrek’s failure to maintain a current address with the Clerk

of Court and his violation of the May 26, 2005, order render this

case subject to involuntary dismissal pursuant to Federal Rule of

Civil Procedure 41(b) for Sczyrek’s failure to prosecute this case. 

Although a dismissal pursuant to that rule is usually with

prejudice, we will dismiss this case without prejudice to Sczyrek’s

right to pursue any relief in the Pennsylvania courts.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Magistrate Judge Smyser’s Report and Recommendation filed

on May 27, 2005, (Document 5) is adopted in toto.

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2. Sczyrek’s petition for writ of habeas corpus (Document 1)

is dismissed without prejudice.

3. The Clerk of Court shall close this file.

4. Any appeal from this order will be deemed lacking in

probable cause, i.e., a substantial showing of the denial

of a constitutional right, and a certificate of

appealability will not issue.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

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