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 MCCLURE, 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-05253)

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 19070

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 Appellees Richard McClure and Exeter

 Township

Claudia M. Tesoro

Senior Deputy Attorney General

Office of Attorney General

21 South 12th Street

Philadelphia, PA 19107

Counsel for Appellee Brianne 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 Appellees Wal-Mart 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 order 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-Mart store in Lower Macungie Township, 

Pennsylvania. Appendix (“App.”) 29.1 Wal-Mart security 

employee Kerrie 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. Curry 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 McClure. App. 30. This charge 

was separate and apparently unrelated to the charges brought 

by Yachera. Two months later, McClure met Curry in prison, 

admitted Curry was innocent of the November 14 charges, 

apologized, and said he would do whatever he could 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. 31. During his imprisonment, Curry 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 and 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 Facts”

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 McClure, 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-Mart, John Does, and Fitcher

must be dismissed because they were barred by Heck v. 

Humphrey, 512 U.S. 477, 486-87 (1994). Next, 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 jurisdiction 

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 

little 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 determining 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 resolved “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 RAM SUBRAMANIAN, ET AL., VERA INSTITUTE OF JUSTICE,

INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN 

AMERICA, 32 (Feb. 2015).
5

not afford bail of $2,500 or less.”5 It seems anomalous that in 

our system 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 WalMart 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 NEW YORK CRIMINAL JUSTICE AGENCY, NEW 

YORK CRIMINAL JUSTICE AGENCY ANNUAL REPORT 30 

(2013)).

6

In the popular media, there has 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. 13, 2015, 

http://www.nytimes.com/2015/08/16/magazine/the-bailtrap.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-ofdefendants-reach-other-costs-mount.html; Sadhbh 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/america-bail-system-law-richpoor; ALYSIA SANTO, THE MARSHALL PROJECT, WHEN 

FREEDOM ISN’T FREE, Feb. 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-behindbars/. 

7 Curry was charged with theft by 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 a 
6

the two misdemeanor charges against him was two years. His 

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 contendere in order to return home. Curry has 

maintained his innocence throughout the criminal 

proceedings and the present matter. Nevertheless, as 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 Subsection 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 dismissed by the District Court. We 

do not criticize Pennsylvania 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 

 

misdemeanor 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 decision 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 claim10 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, http://articles.philly.com/2015-

07-15/news/64454460_1_prison-population-bail-reformovercrowded-prisons; Robert Lewis and Cindy Rodriguez, 

New Bail Alternative Means Freedom for Thousands, WNYC 

News, July 8, 2015, http://www.wnyc.org/story/no-more-bailnon-violent-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 not 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 validity 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 damages 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 judgment, 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. Nation 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 affirmance 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., Williams, 453 

F.3d at 177. 
9

Curry entered a nolo contendere plea for the charges 

brought by Yachera, and under 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 Cir. 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 invalidated 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 correct 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, WalMart, John Does, and Fitcher with prejudice because Curry 

could not prove a favorable termination 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, invalidated, 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 . 

. . warrants 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 (9th 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 claims 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 dropped, 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 Cir. 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 malicious 

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 already 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 argues 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 ‘liberty’ 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 additional 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. 

VI.

For the foregoing reasons, 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 without 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. Curry 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 at 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).