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Miller v. Bazan

United States District Court, N.D. New York

January 26, 2015

MARK B. MILLER, Plaintiff,
DARRYL BAZAN, New York State Police Investigator; and SAMUEL M. THOMSON, New York State Trooper, [1] Defendants.

Mark B. Miller, Plaintiff, Pro Se, Mohawk Correctional Facility, Rome, NY

Hon. Eric T. Schneiderman, Attorney General of the State of New York Michael G. McCartin, Assistant Attorney General Office of Attorney General - Albany For Defendants Darryl Bazan and Samuel M. Thomson, Albany, NY.


BRENDA K. SANNES, District Judge.


Plaintiff pro se Mark B. Miller filed this action pursuant to 42 U.S.C. § 1983 against Defendants the New York State Police, New York State Police Investigator Darryl Bazan ("Bazan") and New York State Trooper Samuel M. Thomson ("Thomson") (Complaint ("Compl.") Dkt. No. 1, ¶ 3)[2]. Plaintiff's complaint alleges in part that Defendants Bazan and Thomson violated Plaintiff's Fourteenth Amendment procedural due process rights when they misappropriated $34, 000 confiscated during a search of his home. (Compl., ¶ 54). Defendants move to dismiss this claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Motion to Dismiss ("Mot. to Dismiss") Dkt. No. 24). For the reasons that follow, the motion is granted.


A. Relevant Facts[3]

On October 16, 2008, a robbery took place at a Hess Express gas station in Amsterdam, New York. (¶ 7). Three days later, on October 19, 2008, Defendant Thomson, a New York State Trooper, came to Plaintiff's home to respond to a complaint of disorderly conduct. (¶ 23). After visiting Plaintiff's home, Thomson executed a sworn affidavit in which he stated that Plaintiff's appearance matched surveillance photos of the suspect in the Hess Express robbery. (¶ 24). Thomson stated that he verified Plaintiff's appearance by viewing pictures from a Myspace page belonging to Plaintiff's then-fiancee, Chivon Fedorka. (¶ 24). On November 18, Judge Richard Aulisi issued a warrant authorizing the search of Plaintiff's home. (¶ 27). Plaintiff alleges that the probable cause for this warrant came from Defendant Thomson's affidavit. (¶ 24).

On November 20, 2008, Plaintiff was at home by himself. (¶ 9). Plaintiff alleges that he had a total of $61, 000 in cash at home that day. (¶ 9). Plaintiff intended to leave his house, and took approximately $8, 000 with him before walking out of the house and into the driveway. (¶ 9). Plaintiff alleges that $53, 000 in cash remained in the house at this time. (¶¶ 9, 17).

When Plaintiff was standing in his driveway, police arrived to search Plaintiff's home. (¶ 9). The police provided Plaintiff with a warrant authorizing the search of his home, and Plaintiff gave the police the keys to the house. (¶¶ 10, 11). Two investigators from the Fulton County Sheriff's Office then approached Plaintiff and asked him to come to their office for further questioning. (¶ 11). Plaintiff complied with the investigators' request and went to their office. (¶ 11).

While Plaintiff was at the investigators' office, police officers searched Plaintiff's home. (¶ 12). Defendant Bazan, a New York State Police Investigator, was one of the police officers who participated in the search. During the search, Bazan allegedly found a gun which had been reported stolen. (¶ 12). After finding the gun, Bazan spoke by telephone to the investigators who were questioning Plaintiff. (¶ 12). The investigators then informed Plaintiff that Bazan had discovered the stolen gun, and arrested Plaintiff. (¶ 12). Cash in the amount of $8, 499 was removed from Plaintiff's person at the time of his arrest. (¶ 12). Meanwhile, Bazan reported finding $19, 000 in cash at Plaintiff's house during his search. (¶ 16).

Plaintiff alleges that an additional $34, 000 in cash, beyond the $19, 000 that Bazan reported finding, was at his house on November 20th; Plaintiff believes that Bazan stole the $34, 000. (¶¶ 16, 17). On November 25th, Plaintiff asked his attorney, William Lorman, to investigate the missing funds. (¶ 18). Mr. Lorman drafted a letter to the Saratoga County District Attorney's Office regarding the missing funds on December 3rd, but withdrew as counsel after sending the letter. (¶¶ 19, 21). Plaintiff alleges that, after Mr. Lorman had withdrawn as counsel, Fulton County District Attorney Louise Sira "coerced" him into "fill[ing] out an affidavit." (¶ 21). Plaintiff alleges that Sira told Plaintiff he would not receive any of the money the police had confiscated from him if he did not fill out the affidavit in "the way she wanted." (¶ 21). Plaintiff alleges that he executed the affidavit "under duress, " and that he never received the missing $34, 000. (¶ 21).

Plaintiff claims that Thomson's affidavit contained false testimony, and that Judge Aulisi would not have issued a warrant authorizing the search of Plaintiff's home if it were not for the statements Thomson made in his affidavit. (¶ 24). Plaintiff also claims that Bazan stole $34, 000 from Plaintiff's home while executing the search warrant. (¶ 16). Plaintiff therefore alleges that Thomson and Bazan conspired to create the circumstances resulting in ...

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