PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 15

- 1692

_____________

JOSEPH CURRY, Appellant

v.

BRIANNE YACHERA, Individually as Trooper for the Pennsylvania State Police a/k/a Brianne Glad;
RICHARD M CCLURE, Individually and in His Official Capacity as Detective for the Exeter Township Police Department; EXETER TOWNSHIP, d/b/a Exeter Township Police Department; KERRIE FICHTER, Individually and in Her Official Capacity as Asset Protection for Wal

- Mart Stores, Inc. a/k/a Walmart; WALMART STORES INC, AKA WalMart; JOHN DOES 1

- 10; WALMART STORES EAST

LP, AKA WalMart

Appeal from the District Court for the Eastern District of

Pennsylvania (No. 5

- 14

- cv

- 0 5253 ) District Judge: Hon. Lawrence Stengel

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 10, 2015

Before: FUENTES, CHAGARES, and GREENBERG,

Circuit Judges

.

(Filed: September 1, 2016 )

____________

OPINION

____________2 Matthew B. Weisberg, Esq.
7 South Morton Avenue Morton, PA 1 9070 Counsel for Appellant

Sheryl L. Brown, Esq. Michael P. Laffey, Esq. Siana Bellwoar & McAndrew, LLP
941 Pottstown Pike
Suite 200 Chester Springs, PA 19524 Counsel for Appellee s Richard McClure and Exeter Township

Claudia M. Tesoro Senior Deputy Attorney G eneral Office of Attorney General
21 South 12th Street Philadelphia, PA 19107 Counsel for Appellee B r ianne Yachera

Patrick J. McDonnell, Esq. Karen L. Green, Esq. McDonnell & Associates, P.C. 860 First Avenue, Suite 5B King of Prussia, PA 19406 Counsel for Appellee s Wal

- M art Stores, Inc., Kerrie Fichter, Wal

- Mart Stores East

CHAGARES, Circuit Judge

.

Joseph Curry appeals the District Court’s order dismissing his complaint under Federal Rule of Civil Procedure 12(b)(6). Although we will affirm the District
Court’s o rder with a modification, we do so with some reluctance. As we will discuss, the circumstances of this case appear to exemplify what can be described as a flaw in our system of justice

— in particular, the inequity bail can create in criminal proceedings.

I.3 In the fall of 2012, Curry read a newspaper article that
stated there was an outstanding warrant for his arrest, related
to a theft at a Wal

- M art store in Lower Macungie Township, Pennsylvania

. Appendix (“App.”) 29. 1 Wal

- Mart security employee Kerr ie Fitcher identified Curry. App. 30. Curry
insists that he had never been in that Wal

- Mart store

. App.
30. Curry called the Wal

- Mart store and spoke to a security employee , John Doe, 2 who refused to review the store surveillance video. App. 30. Curr y then called the Pennsylvania State Police and spoke to Trooper Brianne
Yachera . App. 30. Yachera informed Curry that he was going to jail and that the courts would “ figure it out. ” App.
30.

On October 29, 2012, Curry was arrested and charged
with (1) theft by deception and (2) conspiracy. App. 30. Unable to afford bail, Curry was jailed. On November 14, 2012, while Curry was still in jail, he was charged with “ theft by deception

– false imprisonment ” by Exeter Township
Police Detective Richard M cClure. App. 30. This charge was separate and apparently unrelated to the charges brought by Yachera. Two month s later, McClure met Curry in prison, admitted Curry was innocent of the November 14 charges

, apologized, and said he would do whatever he cou ld to help. App. 31. In or about February 2013, McClure’s charges against Curry were dropped, but he remained in jail on the charges brought by Yachera. App. 31. Curry was told he would need to wait until September 2013 for the case to proceed. App. 3 1. During his imprisonment, Curr y missed
the birth of his child and lost his job. App. 31. Curry feared losing his home and motor vehicle. App. 31. He decided to plead nolo contendere to the remaining charges, theft by deception and conspiracy. App. 31. Following his plea, he was released and returned home. App. 31

.

1 The following facts come from Curry’s First Amended Complaint a nd are assumed to be true for purposes of this appeal.

2 Even though Curry pursues an action against “John Does 1

- 10,” only a single John Doe appears in the “ Operative F acts ” section of his complaint. App 29

- 30.4 On September 12, 2014, Curry filed a lawsuit asserting claims of malicious prosecution, false arrest

, and false imprisonment and seeking damages against Trooper Yachera,
Detective McCl ure, Exeter Township, Kerrie Fitcher, John Does, and Wal

- Mart. 3 The claims were made pursuant to 42 U.S.C. § 1983, the Fourth Amendment, the Fourteenth
Amendment , and state law

. The defendants moved pursuant to Rule 12(b)(6) to dismiss the claims and the District Court granted the motion

. App. 1

- 14.

The District Court determined that the constitutional claims against Yachera

, Wal

- M art , John Does, and Fitcher
must be dismissed because they were barred by Heck v. Humphrey , 512 U.S. 477, 486

- 87 (1994). N ext, the District
Court held that the constitutional claims against McClure
failed to state a cause of action primarily because McClure never “seized” Curry . After dismissing the federal claims, the District Court declined to exercise supplemental jurisdi ction over the remaining state law claims. Curry timely appealed.

II.

The broader context of this matter is disturbing, as it shines a light on what has become a threat to equal justice under the law. That is, the problem of individuals posing
lit tle flight or public safety risk, who are detained in jail because they cannot afford the bail set for criminal charges that are often minor in nature. One recent report concluded that “[m]oney, or the lack thereof, is now the most important
factor in det ermining whether someone is held in jail pretrial” and that “the majority of defendants cannot raise the money quickly or, in some cases, at all.” 4 By way of example, in New York City in 2013, fifty

- four percent of those jailed until
their cases were reso lved “remained in jail because they could

3 As the District Court noted, Curry named both “Walmart Stores, a.k.a. WalMart” and “WalMart Stores East, L.P. a.k.a. WalMart.” App. 3. We will collectively refer to these entities
as “Wal

- Mart.”

4 R AM S UBRAMAN IAN

, ET AL

., V ERA I NSTITUTE OF J USTICE

, I NCARCERATION ’ S F RONT D OOR : T HE M ISUSE OF J AILS IN A MERICA

, 32 ( Feb. 2015).5 not afford bail of $2,500 or less.” 5 It seems anomalous that in

our sys tem of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail. Further, those unable to pay who remain in jail may not have the “luxury” of awaiting a trial on the merits of their charges; they are often forced to accept a plea deal to leave the jail
environment and be freed. 6 Consider plaintiff

- appellant Joseph Curry’s alleged
circumstances. The underlying Criminal Complaint charges that Curry collected items worth a total of $130.27 at a Wal

M art and used a receipt found in the parking lot to return the
items for cash. 7 The maximum sentence he faced for each of

5 Id. (citing N EW Y ORK C RIMINAL J USTICE A GENCY

, N EW Y ORK C RIMINAL J USTICE A GENCY A NNUAL R EPORT 30 (2013)).

6 In the popular media, there h as been much recent attention to the plight of poor defendants who are imprisoned because they cannot pay their bail, despite posing little flight or public safety risk. See, e.g.

, Nick Pinto, The Bail Trap

, N.Y. Times Magazine

, Aug

. 1 3 , 2015, http://www. nytimes.com/2015/08/16/magazine/the

- bail

trap.html; Shaila Dewan, When Bail Is Out of Defendant’s Reach, Other Costs Mount

, N.Y. Times

, June 10, 2015, http://www.nytimes.com/2015/06/11/us/when

- bail

- is

- out

- of

defendants

- reach

- other

- costs

- mount.html; Sad h bh Walshe, America’s Bail System: One Law for the Rich, Another for
the Poor , The Guardian

, Feb. 14

, 2013, http://www.theguardian.com
/commentisfree/2013/feb / 14/ame rica

- bail

- system

- law

- rich

poor; A LYSIA S ANTO

, T HE M ARSHALL P ROJECT

, W HEN F REEDOM I SN ’ T F REE , F eb

. 23, 2015, https://www.themarshallproject.org/2015/02/23/buying

- time ; Robert Lewis, No Bail Money Keeps Poor People Behind
Bars , WNYC News, Sept. 19, 2013, http://www.wnyc.org/story/bail

- keeps

- poor

- people

- behind

bars/

.

7 Curry was charged with theft b y deception, pursuant to 18
Pa. Cons. Stat. § 3922(a)(1), a misdemeanor of the second degree. He was also charged with criminal conspiracy to promote the theft by deception with a co

- conspirator, pursuant to 18 Pa. Cons. Stat. § 903(a)(1), also a6 the two misdemeanor charge s against him was two years. H is bail was set at $20,000. 8

Unable to post his bail, Curry was sent to jail and
waited there for months for his case to proceed. While imprisoned, he missed the birth of his only child, lost his job, and feared losing his home and vehicle. Ultimately, he pled
nolo contend e re in order to return home

. Curry has maintained his innocence throughout the criminal proceedings and the present matter. Nevertheless, a s part of
his nolo contendere plea

, Curry must pay restitution of $130.27 to Wal

- Mart and the costs of prosecution

. He was sentenced to probation for two years. Moreover, as discussed
in S ubs ection IV (A) below, Curry’s nolo contendere plea operates as a procedural bar requiring dismissal of his malicious prosecution claim against all defendants except
McClure. Thus, Curry’s inability to post bail deprived him not only of his freedom, but also of his ability to seek redress for the potentially unconstitutional prosecution that landed him in jail in the first place.

Regrettably, our system of justice is not perfect and Curry’s case appears to expose an unsettling imperfection. On this appeal , we can only consider whether Curry’s section
1983 claim was properly di smissed by the District Court. We
do not criticize Pe nnsylvania authorities

— particularly on the limited record before us. Further, while we highlight a problem in our system of justice, we cannot offer a complete
solution

— though we are aware of bail reform efforts under

misdemea nor of the second degree. The theft was a misdemeanor of the second degree because the amount involved was $50 or more but less than $200. 18 Pa. Cons. Stat. § 3903(a)

- (c). The sentence for misdemeanors of the second degree cannot be more than two years

. 18 Pa. Cons. Stat. § 1104(2).

8 This Court requested records from the Court of Common Pleas of Lehigh County. But those records did not include any transcript or specific materials from the bail hearing. As a result of this lack of information, we will not question why bail was set at $20,000.7 way. 9 We hope those efforts will ensure equal justice under the law, regardless of an individual’s ability to pay.

III.

The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a District Court’s decis ion to grant a Rule 12(b)(6) motion to dismiss

. Fleisher v. Standard
Ins. Co. , 679 F.3d 116, 120 (3d Cir. 2012)

. We accept all factual allegations as true and construe the complaint in the light most favorable to the plaintiff. Id.

IV.

A. Turning to the merits, we consider first whether the District Court erred in dismissing Curry’s section 1983 malicious prosecution claim 10 against Yachera, and by extension, Wal

- Mart, John Does, and Fitcher. We hold that
the court did not err.

9 See Jessica Masulli Reyes, Will Delaware End Cash Bail?

, The News Journal, Nov. 8, 2015; Tricia L. Nadolny, With City’s Jails Jammed, Kenney is Latest to Mull Bail Reform

, Phila

. Inquirer, July 15, 2015

, htt p://articles.philly.com/2015

- 07

- 15/news/64454460_1_prison

- population

- bail

- reform

overcrowded

- prisons ; Robert Lewis and Cindy Rodriguez,
New Bail A lternative Means Freedom for Thousands , WNYC News, July 8, 2015, http://www.wnyc.org/story/no

- more

- bail

non

- vi olent

- offenders/?utm_...people

- behind

- bars/; Brent Johnson, State Supreme Court Chief Touts N.J.’s

“ Significant ” Bail Reform , N.J. Advance Media

, May 15, 2015, http://www.nj.com/politics/index.ssf/2015/05/nj_supreme_co urt_chief_justice.html.

10 Curry does n ot separately challenge the District Court’s dismissal of his false imprisonment and false arrest claims or his state law claims against the defendants. Therefore, we will only focus on his malicious prosecution claims brought
under section 1983.8 In Heck v. Humphrey

, the Supreme Court determined that an action seeking damages for an unconstitutional malicious prosecution, conviction, or imprisonment under section 1983 is not cognizable if “a judgment in favor of the plaintiff would necessarily imply the invalidity of [a] conviction or sentence.” 512 U.S. at 487. The Court’s opinion in Heck was animated by “concerns for finality and consistency,” id. at 485, as well as “the hoary principle that civil tort actions are not appropriate vehicles for challenging
the validi ty of outstanding criminal judgments applies to § 1983 damages actions,” id. at 486. Accordingly, under what
we have termed Heck’s “ favorable termination rule,” Bronowicz v. Allegheny Cty. , 804 F.3d 338, 344

- 45 (3d Cir. 2015), a section 1983 action for da mages must be dismissed unless there was no conviction or sentence or “the plaintiff can demonstrate that [a] conviction or sentence has already been invalidated,” Heck , 512 U.S. at 487. 11 If an action will not demonstrate the invalidity of the criminal ju dgment, it should proceed. Id. 12

11 Curry appears to argue that because he was not in custody at the time of this action, his section 1983 claim should be allowed to proceed. This appeal appears to be the first time Curry has raised this argument. This argument is therefore
forfeited. Del

. Nat ion v. Pennsylvania , 446 F.3d 410, 416 (3d Cir. 2006) (“Absent exceptional circumstances, this Court will not consider issues raised for the first time on appeal.”). Even if we were to consider this argument, we have previously rejected it. See Williams v. Consovoy , 453 F.3d 173, 177 (3d Cir. 2006).

12 There is no legal basis for Curry’s argument that Heck cannot be raised at the motion to dismiss stage. Indeed, in
Heck itself the Supreme Court affirmed the Court of Appeals for the Seventh Circuit’s affi rma nce of a dismissal at the motion to dismiss stage. See Heck v. Humphrey , 997 F.2d 355, 359 (7th Cir. 1993), aff’d , 512 U.S. 477, 114 (1994). Similarly, we have affirmed a dismissal at the motion to dismiss stage under Heck before. See, e.g.

, William s , 453
F.3d at 177.9 Curry entered a nolo contendere plea for the charges brought by Yachera, and u nder Pennsylvania law, that plea
must be treated the same as a conviction under Heck

. See
United States v. Poellnitz , 372 F.3d 562, 566 (3d C ir. 2004) (“[A] nolo plea is indisputably tantamount to a conviction . . . .”). Even though Pennsylvania law does not treat a nolo
contendere as an admission of guilt, it is “equivalent to a plea of guilty” and the defendant “consents to being punished as if he were guilty.” Id. at 568 (citing Commonwealth v. Gunter

, 771 A.2d 767, 773 (Pa. 2001) (quotation marks omitted)). A
nolo contendere plea “‘cannot be used against the defendant as an admission in any civil suit for the same act,’” but the judgment of conviction still follows from it, just like a plea of guilty. Id . (quoting Eisenberg v. Commonwealth , 516 A.2d
333 , 335 ( Pa. 1986)). We have noted that even where the prosecution moves to dismiss criminal charges, there is no
favorable termination if the dismissal was the result of a compromise, because this would not indicate “that the accused is actually innocent of the crimes charged.” Hilfirty v. Shipman , 91 F.3d 573, 580 (3d Cir. 1996); see generally
Havens v. Johnson , 783 F.3d 776, 784 (10th Cir . 2015) (“[T]he Heck doctrine derives from the existence of a valid conviction, not the mechanism by which the conviction was obtained (such as admissions by the defendant), so it is
irrelevant that Havens entered an Alford plea [maintaining his innocence] .”); Ballard v. Burton , 444 F.3d 391, 397 (5th Cir. 2006) (“[W]e hold that a conviction based on an Alford plea can be used to impose Heck ’ s favorable termination rule.”). For purposes of Heck , Curry was convicted of the charges brought by Yachera.

The constitutional claims against Yachera, and by
extension Wal

- Mart, John Does, and Fitcher, are precluded by
Heck because their success would imply that his conviction
was invalid. See 512 U.S. at 486

- 87. Curry does not allege
that his conviction was inva lidated to satisfy the favorable termination rule. As a result, we hold that the District Court properly dismissed Curry’s constitutional claim of malicious prosecution against Yachera, and by extension, Wal

- Mart, John Does, and Fitcher.

B.10 We will corr ect one error by the District Court that the parties did not raise or address. The District Court dismissed Curry’s malicious prosecution claims against Yachera, Wal

Mart, John Does, and Fitcher with prejudice because Curry could not prove a favorable ter mination of the criminal proceedings against him. In such circumstances, the statute of limitations begins to accrue when the termination of criminal proceedings becomes favorable; that is, when “the conviction or sentence is reversed, expunged, invalidat ed, or impugned by the grant of a writ of habeas corpus.” Heck

, 512 U.S. at 489. Dismissal of these claims with prejudice, therefore, was in error. See Amaker v. Weiner , 179 F.3d 48, 52 (2d Cir. 1999) (“Disposition of the case on Heck grounds .

. . warr ants only dismissal without prejudice.”); White v.
Gittens , 121 F.3d 803, 807 (1st Cir. 1997); Fottler v. United
States , 73 F.3d 1064, 1065 (10th Cir. 1996) (“When a § 1983
claim is dismissed under Heck , the dismissal should be without prejudice.”); Perez v. Sifel , 57 F.3d 503, 505 (7th Cir. 1995) (“[B]ecause appellant could renew these claims [barred by Heck ] if he ever succeeds in overturning his conviction, dismissal without prejudice is appropriate.”); Trimble v. City
of Santa Rosa , 49 F.3d 583, 585 (9t h Cir. 1995); Schafer v.
Moore , 46 F.3d 43, 45 (8th Cir. 1995) (“Although we affirm the district court’s order, we modify the order of dismissal to be without prejudice so that Schafer can refile his complaint should he succeed in challenging the legality of his continued confinement through appropriate state or federal remedies.”). Accordingly, we will modify the order of dismissal regarding Curry’s malicious prosecution claims against Yachera, Wal

- Mart, John Does, and Fitcher to reflect that
these cl aims are dismissed without prejudice.

V.

We next consider whether the District Court erred in dismissing Curry’s malicious prosecution claim against McClure. McClure’s charges related to involvement in a larger theft ring, while Yachera’s charges appear to relate to the specific theft at the Wal

- Mart. App. 30

- 31. Heck does not apply to the claims against McClure because the nolo
contendere plea only related to Yachera’s charges, not
McClure’s.11 To prove a Fourth Amendment malicious prosecution claim, a plaintiff must show: “(1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in his favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.”
Johnson v. Knorr , 477 F.3d 75, 82 (3d Cir. 2007). 13 The
District Court dismissed the malicious prosecution claim against McClure because Curry could not meet the fifth element. We agree with that ruling.

Curry was already incarcerated on Yachera’s charges when McClure brought his charges against Curry. 14 When McClure’s charges were d ropped, Curry was still in jail. As a result, McClure never deprived Curry of his liberty “as a consequence of” the charges McClure brought against Curry. Curry’s liberty had already been deprived. See United States
v. Johnson , 703 F.3d 464, 470 (8th Ci r. 2013) (“ Johnson is already incarcerated. His liberty is already deprived

. . . . No new deprivation of liberty can be visited upon him . . . .” (citation omitted)); Gallo v. City of Phila

. , 161 F.3d 217, 222 (3d Cir. 1998) (“[A] plaintiff asserting a m alicious prosecution claim must show some deprivation of liberty consistent with the concept of seizure.” (quotation marks omitted)); Gravely v. Madden , 142 F.3d 345, 348 (6th Cir. 1998) (“The Fourth Amendment is not triggered anew [when a person] has alre ady been ‘seized’ . . . .”); United States v.
Sutton , 607 F.2d 220, 222 (8th Cir. 1979) (“[A] ppellant was

13 The deprivation of liberty element of a malicious prosecution claim is required when raising a claim under the Fourth Amendment, as appears to be the case with Curry’s complaint. Johnson , 477 F.3d at 82 n.8; App. 33.

14 Curry ar gues that the District Court went beyond the allegations of the complaint when it found that McClure did not seize Curry because he was already incarcerated. But the complaint clearly indicates that Curry was already incarcerated when McClure charged him. App. 30. This argument, therefore, is meritless.12 already confined; he had been legally deprived of his liberty and was in the custody of the State of Missouri. Therefore, no interruption of his ‘ lib erty ’ occurred. ”); Turner v. Schultz

, 130 F. Supp. 2d 1216, 1225 (D. Colo. 2001) (noting the lack of any support for the proposition “that an already lawfully incarcerated prisoner is seized for Fourth Amendment purposes when he is charged with an addition al crime.”). 15

McClure simply never deprived Curry of his liberty as a consequence of his (McClure’s) charges. Therefore, the District Court properly dismissed the Fourth Amendment malicious prosecution claim against McClure.

V I

.

For the foregoing re asons, we will affirm the District Court’s order of dismissal in all respects except that we will modify the order regarding Curry’s malicious prosecution claims against Yachera, Wal

- Mart, John Does, and Fitcher to
reflect that these claims are dismissed w ithout prejudice.

15 Our holding does not necessarily mean that a plaintiff can

never suffer a “deprivation of liberty consistent with the concept of a seizure” when already incarcerated. See
Johnson , 477 F.3d at 82 . Cu rry has not alleged any facts that he was seized by McClure. We leave open the possibility that a set of facts could exist where an already imprisoned plaintiff can demonstrate a seizure sufficient for a malicious prosecution claim. See Gallo , 161 F.3d a t 222 (holding that a plaintiff was seized for purposes of a Fourth Amendment malicious prosecution claim because he had to post a $10,000 bond, attend all court hearings, was required to contact Pretrial Services on a weekly basis, and was prohibited from travelling outside the states of New Jersey and Pennsylvania).