                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                    No. 17-3095
                                   _____________

                        ASHLEY ORTIZ, on behalf of herself
                          and all others similarly situated,
                                                      Appellant

                                           v.

NEW JERSEY STATE POLICE; JOSEPH FUENTES, in his capacity as Superintendent
   of New Jersey State Police; ATTORNEY GENERAL OF THE STATE OF NEW
JERSEY; ELIE HONIG, in her official capacity as Director of the Office of the Attorney
     General Department of Law and Public Safety Division of Criminal Justice;
        MARC DENNIS, individually and in his capacity as Coordinator in the
                 New Jersey State Police Alcohol Drug Testing Unit
                                  _____________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                             (D.N.J.No. 3-16-cv-07976)
                       District Judge: Hon. Michael A. Shipp

                                Argued: April 9, 2018

           Before: CHAGARES, VANASKIE, and FISHER, Circuit Judges.

                             (Filed: September 6, 2018)


Lisa J. Rodriguez [ARGUED]
Schnader Harrison Segal & Lewis
220 Lake Drive East
Woodland Falls Corporate Park, Suite 200
Cherry Hill, NJ 08002
        Counsel for Appellant
Christopher S. Porrino
 Attorney General New Jersey
Melissa H. Raksa
 Assistant Attorney General
Christopher J. Riggs       [ARGUED]
Office of Attorney General of New Jersey
Division of Law Tort Litigation and Judiciary
25 Market Street, P.O. Box 116
Trenton, NJ 08625

Daniel M. Vannella
Office of Attorney General of New Jersey
Division of Law
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, NJ 08625
       Counsel for Appellees

                                      ____________

                                        OPINION*
                                      ____________
CHAGARES, Circuit Judge.

       Ashley Ortiz registered a 0.09% Blood Alcohol Concentration (“BAC”) on an

Alcotest machine and pled guilty to Driving While Intoxicated (“DWI”) under New

Jersey law. It was later revealed that New Jersey State Police (“NJSP”) Sergeant Marc

Dennis allegedly failed to calibrate properly the Alcotest machine Ortiz was tested on as

well as other Alcotest machines. Proceedings before the New Jersey state courts

regarding the effect of the improper calibration and potential remedies have begun but

have not yet concluded. Ortiz filed a putative class action against Dennis and various


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                             2
New Jersey law enforcement officials under 42 U.S.C. § 1983 and New Jersey state law,

seeking monetary and injunctive relief for wrongful prosecution and conviction. The

District Court for the District of New Jersey held that Ortiz’s claims were barred by Heck

v. Humphrey, 512 U.S. 477 (1994), and granted the defendants’ motion to dismiss. As

explained below, we will affirm.

                                            I.

                                            A.

       New Jersey prohibits driving with a BAC above 0.08% or “while under the

influence of intoxicating liquor.” N.J. Stat. Ann. § 39:4-50. One method the NJSP uses

to assess the BAC of drivers is the Alcotest 7110 MKIII-C machine. The Alcotest

measures BAC by analyzing breath samples taken from a suspect.1

       In a 2008 case, the Supreme Court of New Jersey held that results from Alcotest

machines were admissible as evidence of BAC, and ordered, inter alia, that Alcotest

devices must be “inspect[ed] and recalibrate[ed] . . . every six months.” State v. Chun,

943 A.2d 114, 153 (N.J. 2008). New Jersey Administrative Code § 13:51 requires the

NJSP to calibrate and recalibrate BAC devices like the Alcotest and to maintain records

of the calibration process. The Chief Forensic Scientist of NJSP has established a

Calibration Check Procedure for Alcotest devices, including the use of a thermometer


       1
        A person may be convicted of DWI with no evidence of their BAC, based solely
on an officer’s observations that the person was under the influence of intoxicating
liquor. See, e.g., State v. Marquez, 998 A.2d 421, 438 (N.J. 2010); State v. Cryan, 833
A.2d 640, 649 (N.J. Super. Ct. App. Div. 2003); State v. Cleverley, 792 A.2d 457, 463
(N.J. Super. Ct. App. Div. 2002); State v. Oliveri, 764 A.2d 489, 493 (N.J. Super. Ct.
App. Div. 2001).
                                            3
that is “traceable” under National Institute of Standards and Technology (“NIST”)

standards. The Alcohol Drug Testing Unit (“ADTU”) Coordinator who calibrates the

instrument is required to certify that he performed the calibration check and that the

certification was truthful. Under New Jersey law, evidence that an Alcotest machine has

been properly inspected is a prerequisite to its introduction as evidence. Chun, 943 A.2d

at 168.

          Marc Dennis was an ADTU Coordinator. Dennis allegedly failed to follow proper

procedures when recalibrating at least three Alcotest machines, but nevertheless falsely

certified he had properly calibrated the machines. Over 20,000 individuals were

purportedly tested by the three Alcotest machines Dennis calibrated in this manner.

Appendix (“App.”) 13.

                                               B.

          In 2015, an NJSP officer stopped Ortiz for a traffic violation. The officer smelled

alcohol and performed a field sobriety test. Ortiz alleged no facts concerning what

occurred during the field sobriety test. The officer then arrested Ortiz and administered

an Alcotest which produced a BAC reading of 0.09%. Ortiz’s BAC was determined

using an Alcotest machine that had been recalibrated by Dennis. Ortiz pled guilty to

DWI.

          Years later, New Jersey filed a criminal complaint against Marc Dennis for falsely

certifying he had calibrated certain Alcotest machines using an NIST-traceable

thermometer. Ortiz does not know whether her BAC test occurred on one of those

machines.

                                               4
       The Supreme Court of New Jersey appointed a Special Master to determine,

through non-adversarial proceedings, whether the results of the Alcotest machines were

scientifically accurate in spite of Dennis’s misconduct. On October 13, 2017, a

Monmouth County prosecutor sent Ortiz and others a letter notifying them of Marc

Dennis’s actions and the proceedings before the Special Master.

       After learning of Dennis’s misconduct, Ortiz brought this putative class action

lawsuit under § 1983 and New Jersey state law. She sued Dennis in both his individual

capacity and his official capacity as an ADTU Coordinator, Joseph Fuentes in his official

capacity as Superintendent of NJSP, Christopher S. Porrino in his official capacity as

Acting Attorney General of the State of New Jersey, and Elie Honig in his official

capacity as Director of the Office of the Attorney General, Department of Law and Public

Safety, Division of Criminal Justice.2 Her complaint alleged five counts: (1) a § 1983

claim against Dennis alleging that he used falsified evidence to initiate a criminal

prosecution in violation of the Due Process clause; (2) a § 1983 claim against all

defendants alleging that they withheld exculpatory evidence by failing to disclose

promptly that Dennis had lied on his certification forms in violation of the Due Process

clause; (3) a § 1983 claim against the NJSP and Fuentes alleging that their supervisory



       2
         Ortiz also named the NJSP as a defendant, but consented to its dismissal.
Additionally, we take judicial notice that, since Ortiz filed her complaint, Patrick J.
Callahan has succeeded Joseph Fuentes as the Superintendent of NJSP, Gurbir Grewal
has succeeded Christopher Porrino as the Attorney General of the State of New Jersey,
and Veronica Allende has succeeded Elie Honig as the Director of the Division of
Criminal Justice. We will order that the appropriate names of these official defendants be
substituted. Fed. R. App. P. 43(c).
                                             5
failures violated unnamed constitutional rights; (4) a claim under New Jersey state law

against Dennis claiming that he fabricated evidence, and (5) a catch-all claim under both

§ 1983 and New Jersey state law re-stating all claims against all of the defendants. She

seeks compensatory damages, punitive damages from Dennis, a refund of fines and

surcharges paid in connection with her conviction, removal of evidence of her offense

from her criminal and driving records, and prospective relief regarding New Jersey’s use

of the Alcotest machine in future DWI prosecutions.

       The defendants moved to dismiss the complaint and the District Court granted the

motion, holding that it lacked subject matter jurisdiction over the claims because they

were barred by Heck. Ortiz timely appealed.

                                              C.

       On May 4, 2018 — after the parties presented oral argument — a Special Master

issued a Report of Findings of Fact and Conclusions of Remand Court. The Report

concluded that:

              [T]he State has failed to clearly and convincingly prove that
              failure to perform the NIST thermometer step in the calibration
              process does not undermine and call into question the good
              working order of the Alcotest instrument. Skipping the NIST
              thermometer step removes from the process a substantial and
              essential safeguard, the magnitude of which reduces the
              reliability of the device to a level that is less than sufficiently
              scientifically reliable to allow its reports to be admitted in
              evidence.

Ortiz’s Fed. R. App. P. 28(j) letter, dated May 11, 2018, Exhibit at 197–98. The Special

Master’s Report lacks independent effect; the Supreme Court of New Jersey must next

decide whether to adopt the report in whole or in part and the legal significance of the

                                              6
Report’s findings. See State v. Cassidy, Docket No. 078390 (N.J. 2018). The parties

have not discussed the timeline of further proceedings.

                                              II.

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

Although the District Court characterized its order as a dismissal for lack of subject

matter jurisdiction, the Heck bar is not jurisdictional. See Polzin v. Gage, 636 F.3d 834,

837–38 (7th Cir. 2011) (per curiam). Rather, Heck and its progeny describe a limitation

on the scope of claims available under § 1983. This distinction is mostly formal and does

not substantively change our review or the result, and thus we will treat the District

Court’s order as having been issued under Federal Rule of Civil Procedure 12(b)(6). See

Sprauve v. W. Indian Co., 799 F.3d 226, 229 n.2 (3d Cir. 2015); Kehr Packages, Inc. v.

Fidelcor, Inc., 926 F.2d 1406, 1408–09 (3d Cir. 1991).

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary

review over an order dismissing a complaint for failure to state a claim. Curry v.

Yachera, 835 F.3d 373, 377 (3d Cir. 2016). In reviewing a motion to dismiss pursuant to

Heck, a court construes the complaint in the light most favorable to the plaintiff. Id.

                                              III.

       No cause of action exists under § 1983 for “harm caused by actions whose

unlawfulness would render a conviction or sentence invalid” or would “necessarily imply

the invalidity of” the conviction, unless the conviction or sentence has been reversed,

vacated, expunged, or otherwise favorably terminated. Heck, 512 U.S. at 486–87. A

plaintiff’s lawsuit is barred under § 1983 if “establishing the basis for the . . . claim

                                               7
necessarily demonstrates the invalidity of the conviction.” Id. at 481–82; see, e.g.,

Nelson v. Jashurek, 109 F.3d 142, 145 (3d Cir. 1997). Thus, a plaintiff may not sue “for

alleged unconstitutional conduct that would invalidate his or her underlying sentence or

conviction unless that conviction has already been” favorably terminated. Grier v. Klem,

591 F.3d 672, 677 (3d Cir. 2010).

       Claims for malicious prosecution or false imprisonment arising from the

prosecution, arrest, and imprisonment that led to a plaintiff’s conviction are clear

examples of Heck-barred claims, because success on those claims requires showing

unlawful prosecution or imprisonment. See Curry, 835 F.3d at 377–79. A case-specific

approach is required to determine whether a plaintiff’s success on her § 1983 claim

would necessarily imply the invalidity of her conviction, because a court must compare

the content of the plaintiff’s § 1983 claims with the basis of her conviction. See Gibson

v. Superintendent, 411 F.3d 427, 447–49 (3d Cir. 2005), abrogated on other grounds by

Wallace v. Kato, 549 U.S. 384 (2007).

       Ortiz’s claims that the defendants fabricated and suppressed evidence are barred

by Heck because success on those claims would necessarily imply the invalidity of her

conviction. To state a successful § 1983 claim for knowingly falsified evidence, a

plaintiff must show “a reasonable likelihood that, absent that fabricated evidence, [she]

would not have been criminally charged,” Black v. Montgomery Cty., 835 F.3d 358, 371

(3d Cir. 2016), or convicted, Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014).

Similarly, to succeed on her claim for suppression of evidence, she would have to show

that the defendants failed “to promptly disclose Defendant Dennis’s fabrication of

                                              8
material, exculpatory evidence.” App. 18–19. Establishing any of these would

necessarily imply that her conviction was invalid. Ortiz’s argument that Heck does not

apply to her claims — because her Due Process rights were violated before she was

convicted — is unavailing. Claims which accrue before convictions will nevertheless be

barred by Heck if success on those claims would imply the invalidity of a plaintiff’s

conviction. See Long v. Atl. City Police Dep’t, 670 F.3d 436, 447 (3d Cir. 2012)

(holding that Heck barred claims of conspiracy to obtain a conviction, including acts of

fabricating evidence and perjury, because Long’s conviction had not been invalidated).

Ortiz’s proposed exception would overshadow the rule in Heck, because government

misconduct that would render a conviction invalid will almost always occur before the

conviction itself.

       Her supervisory liability claim is also barred by Heck. To succeed on a

supervisory liability claim under § 1983, a plaintiff “must identify a failure to provide

specific training that has a causal nexus with [the plaintiff’s] injuries.” Reitz v. Cty. of

Bucks, 125 F.3d 139, 145 (3d Cir. 1997). Ortiz alleges that the defendants’ improper

training caused a widespread practice of “the use of false information to initiate . . .

prosecution[s], fabrication of evidence, and suppression of exculpatory evidence,” which

caused her to be prosecuted and convicted. App. 21. Under Reitz, she cannot succeed

unless she shows that her injuries — her prosecution and subsequent conviction — were

caused by the practices the defendants oversaw. The only way Ortiz could show a causal




                                              9
nexus would be if falsified material evidence was used to obtain her guilty plea, which

would demonstrate that her conviction was invalid.3

          Ortiz herself insists that the defendants’ alleged misconduct “implies the invalidity

of [her] conviction.” Ortiz’s Fed. R. App. P. 28(j) letter, dated May 11, 2018.

Specifically, she argues that her guilty plea was obtained through falsified material

evidence and therefore was “not . . . a valid DWI guilty plea.” Reply Br. 1. These

assertions reference the seriousness of the defendants’ alleged misconduct, because “a

police officer’s fabrication and forwarding to prosecutors of known false evidence works

an unacceptable ‘corruption of the truth-seeking function of the trial process.’” Halsey,

750 F.3d at 293 (quoting United States v. Agurs, 427 U.S. 97, 104 (1976)). However, the

seriousness of that alleged misconduct does not take this case outside the scope of Heck.

Rather, it reinforces that Ortiz may not bring this § 1983 claim while her conviction still

stands.

          Ortiz also argues that the District Court improperly relied upon her prayer for

relief in granting the defendants’ motion to dismiss. The District Court properly

considered Ortiz’s prayer for relief, although it was not necessary to its holding. It is

difficult for Ortiz to argue that her claims do not imply the invalidity of her convictions

when her complaint seeks for her conviction to be expunged from New Jersey’s criminal

records, not to mention the repayment of “fines and surcharges . . . paid in connection


          3
        Ortiz does not argue on appeal that her that her state-law claim should not have
been dismissed. Although this Court has never held that Heck applies outside the context
of § 1983, exceptional circumstances do not justify addressing this forfeited argument.
See Barna v. Bd. of Sch. Dirs., 877 F.3d 136, 145 (3d Cir. 2017).
                                               10
with [her] conviction” and the expungement of the offense from her driving record. App.

23–24. Civil suits under § 1983 “are not appropriate vehicles for challenging the validity

of outstanding criminal judgments.” Heck, 512 U.S. at 486. Ortiz’s prayer for relief

makes clear that her § 1983 claim would, in effect, challenge the validity of her

conviction.

       We note that the complaint was properly dismissed without prejudice. Curry, 835

F.3d at 379–80. This means that if — after the state proceedings related to this case have

taken their course — a conviction was, for instance, “expunged by executive order, [or]

declared invalid by a state tribunal authorized to make such a determination,” Heck, 512

U.S. at 487, then the complaint may be re-filed.

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s Order of dismissal in

all respects except that we will modify the Order to reflect that Ortiz’s claims are

dismissed for failure to state a claim upon which relief may be granted rather than for

lack of subject matter jurisdiction. We will also order that the Clerk of Court substitute

the names of the defendants sued in their official capacities pursuant to Rule 43(c).




                                             11
