                                          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
                       ____________
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.


                              2
        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.
                               3
       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).
                              4
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 Wal-
Mart 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-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; 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-rich-
poor; 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-behind-
bars/.
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
                                5
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.
                               6
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-reform-
overcrowded-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-bail-
non-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.

                               7
        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.

                               8
       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.


                               9
       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, Wal-
Mart, 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.


                              10
        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.

                               11
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).
                              12
