                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 07a0497p.06

                       UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                      X
                                Plaintiff-Appellant, -
 RONALD EIDSON,
                                                       -
                                                       -
                                                       -
                                                           No. 07-5406
           v.
                                                       ,
                                                        >
 STATE OF TENNESSEE DEPARTMENT OF CHILDREN’S           -
                                                       -
                            Defendants-Appellees. -
 SERVICES, et al.,

                                                       -
                                                      N
                       Appeal from the United States District Court
                   for the Eastern District of Tennessee at Greeneville.
                     No. 05-00276—J. Ronnie Greer, District Judge.
                                        Argued: October 23, 2007
                                Decided and Filed: December 20, 2007
       Before: BOGGS, Chief Judge; McKEAGUE, Circuit Judge; COHN, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: William E. Phillips II, PHILLIPS & HALE, Rogersville, Tennessee, for Appellant.
Juan G. Villaseñor, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for
Appellees. ON BRIEF: William E. Phillips II, PHILLIPS & HALE, Rogersville, Tennessee, for
Appellant. Juan G. Villaseñor, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee,
for Appellees.
                                            _________________
                                                OPINION
                                            _________________
        McKEAGUE, Circuit Judge. This case arises from the temporary removal of plaintiff-
appellant Ronald Eidson’s minor daughters by Tennessee Child Protective Services and the
Tennessee Department of Children’s Services after one of his daughters falsely accused him of
sexual abuse. Full custody was restored to plaintiff eleven months later, after his daughter recanted
her accusation. One year later, plaintiff filed suit, charging that various wrongful acts by child
protective services workers had deprived him of liberty without due process. The district court
dismissed the action as time-barred, rejecting plaintiff’s arguments that the accrual of his cause of

        *
          The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by
designation.


                                                       1
No. 07-5406               Eidson v. State of Tenn. Dep’t of Children’s Services, et al.                         Page 2


action should be deemed to have been extended due to application of the continuing violation
doctrine or, alternatively, abstention principles. The district court’s ruling is well-reasoned. For the
reasons that follow, we affirm.
                       I. FACTUAL AND PROCEDURAL BACKGROUND1
        In September 2003, plaintiff-appellant Ronald Eidson had been awarded custody of his three
children; their mother, Nancy Eidson, was granted visitation rights. On November 17, 2003, his
daughter Amanda accused her father of sexual abuse. On November 18, Child Protective Services
(“CPS”) responded to the accusation, sending CPS investigator Leilani Mooneyham to interview
Amanda. After speaking with Amanda, in the company of Amanda’s mother, Mooneyham
determined that  removal of both of plaintiff’s daughters, Amanda and Kathryn, from his custody was
appropriate.2 Without conducting any further investigation, Mooneyham removed both daughters
on November 18, 2003, pursuant to a safety plan created by CPS, and placed them with their mother.
Plaintiff was to have no contact with the daughters.
        Despite a Tennessee law requirement that a hearing be conducted within three days following
an immediate removal of a child from a parent’s custody, no such proceeding was initiated by the
Tennessee Department of Children’s Services (“DCS”). On May 24, 2004, DCS finally filed a
petition in juvenile court alleging plaintiff’s children were dependent and neglected. At the
conclusion of the ensuing hearing, the juvenile court awarded temporary custody of the children to
DCS, which placed them with their mother.3
        On June 7, 2004, investigator Myra Ramey, who had been assigned to replace Mooneyham,
sent plaintiff a “standard perpetrator notification letter,” informing him that he was “indicated for
sexual abuse” and that he had a right to appeal the decision. Plaintiff alleges this letter served as
notification that his name had been added to an internal DCS sex-offender registry.
        On June 22, 2004, plaintiff’s daughter recanted her allegations of sexual abuse and admitted
that her mother had instigated the false charge. A hearing was held on June 28, 2004, where the
juvenile court was informed of the recantation. Custody of the children was removed from the
mother and transferred to an aunt and uncle.
        On July 22, 2004, the juvenile court returned the daughters to plaintiff for a 90-day trial
period. Plaintiff alleges that during the 90-day period, he and his family were “subject to continual
interference by DCS.” The nature of the alleged interference is not identified in the complaint or
in plaintiff’s appellate briefing. On October 22, 2004, after successful completion of the trial period,
the juvenile court returned full custody of the children to plaintiff. One year later, Eidson filed this
action on October 24, 2005 in the Eastern District of Tennessee, claiming violations of his




         1
          As plaintiff’s complaint was dismissed under Fed. R. Civ. P. 12(b)(6), the factual record is truncated. This
fact summary is gleaned largely from the allegations of plaintiff’s second amended complaint which, for purposes of this
review, are accepted as true.
         2
          The record does not disclose the age of either daughter, although plaintiff identifies Kathryn as the younger
of the two.
         3
         Plaintiff alleges that Mooneyham testified falsely at the hearing in order to deny him custody of his children.
Although the nature of the alleged false testimony is not spelled out, we surmise that Mooneyham testified that plaintiff
consented to the initial removal of his children pursuant to the CPS safety plan, when in fact he had not.
No. 07-5406               Eidson v. State of Tenn. Dep’t of Children’s Services, et al.                        Page 3


procedural and substantive due process rights under 42 U.S.C. § 1983.4 Named as defendants are
DCS and CPS and several of their employees.
        Defendants moved to dismiss the complaint as time-barred. On March 6, 2006, the district
court granted the motion and dismissed plaintiff’s claims as barred by the one-year Tennessee statute
of limitations applicable to § 1983 actions. In its memorandum opinion and order, the district court
concluded that plaintiff’s claims do not satisfy the requirements of the continuing violation doctrine.
The court further rejected plaintiff’s attempt to invoke abstention principles to forestall dismissal.
The court thus held the claims time-barred because all unlawful acts alleged in support of the claims
occurred more than one year prior to the filing of the complaint.
                                                 II. ANALYSIS
         A. Standard of Review
         Whether the district court properly dismissed the complaint pursuant to Rule 12(b)(6) is a
question of law subject to de novo review. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). The
reviewing court must construe the complaint in a light most favorable to plaintiff, accept all well-
pled factual allegations as true, and determine whether plaintiff undoubtedly can prove no set of
facts in support of those allegations that would entitle him to relief. Harbin-Bey v. Rutter, 420 F.3d
571, 575 (6th Cir. 2005). Yet, to survive a motion to dismiss, the complaint must contain either
direct or inferential allegations respecting all material elements to sustain a recovery under some
viable legal theory. Mezibov, 411 F.3d at 716. Conclusory allegations or legal conclusions
masquerading as factual allegations will not suffice. Id. See also, Bell Atlantic Corp. v. Twombly,
127 S.Ct. 1955, 1965 (2007) (explaining that complaint must contain something more than a
statement of facts that merely creates speculation or suspicion of a legally cognizable cause of
action).
         B. Continuing Violation
        The statute of limitations applicable to a § 1983 action is the state statute of limitations
applicable to personal injury actions under the law of the state in which the § 1983 claim arises.
Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 519 (6th Cir. 1997). The parties agree that
a one-year limitation period, borrowed from Tennessee law, Tenn. Code Ann. § 28-3-104(a)(3),
applies in this case. Plaintiff contends his cause of action did not accrue until the juvenile court
proceedings concluded on October 22, 2004. He argues that his complaint, filed on October 24,
2005, was timely filed, because the date on which the one-year period would have expired, October
22, 2005, fell on a Saturday and the first business day thereafter was October 24, 2005.
        The date on which the statute of limitations begins to run in a § 1983 action is a question of
federal law. Kuhnle Bros., 103 F.3d at 520. Ordinarily, the limitation period starts to run when the
plaintiff knows or has reason to know of the injury which is the basis of his action. Id. at 520. “[I]n
determining when the cause of action accrues in section 1983 actions, we have looked to what event
should have alerted the typical lay person to protect his or her rights.” Id. (quoting Dixon v.
Anderson, 928 F.2d 212, 215 (6th Cir. 1991)). See also, Bell v. Ohio State University, 351 F.3d 240,
247 (6th Cir. 2003); Hughes v. Vanderbilt University, 215 F.3d 540, 548 (6th Cir. 2000).



         4
           Plaintiff also alleged that defendants violated his “well established Constitutional right to make decisions
concerning the care, custody, and control of his children which is guaranteed under the Due Process Clause of
Amendment Fourteen of the United States Constitution.” It is unclear how this claim differs from his due process claims.
As neither the district court nor the parties analyzed this claim separately from the due process claims, it is given no
particularized attention in this opinion.
No. 07-5406           Eidson v. State of Tenn. Dep’t of Children’s Services, et al.              Page 4


       The precipitating event in this action, plaintiff concedes, was defendants’ initial removal of
his daughters from his custody on November 18, 2003. At the time of the initial removal, plaintiff
knew of the injury which is the basis of his claims. Yet, plaintiff argues that defendants’ continuing
wrongful conduct, from the date of the initial removal through the completion of the 90-day trial
placement period on October 22, 2004, constituted a continuing violation, extending accrual of his
cause of action.
        The test for determining whether a continuing violation exists is summarized as follows:
         First, the defendant’s wrongful conduct must continue after the precipitating event
         that began the pattern. . . . Second, injury to the plaintiff must continue to accrue
         after that event. Finally, further injury to the plaintiff[] must have been avoidable
         if the defendants had at any time ceased their wrongful conduct.
Tolbert v. State of Ohio Dep’t of Transp., 172 F.3d 934, 940 (6th Cir. 1999). See also, Paschal v.
Flagstar Bank, 295 F.3d 565, 572 (6th Cir. 2002). “[A] continuing violation is occasioned by
continual unlawful acts, not continual ill effects from an original violation.” Tolbert, 172 F.3d at
940 (quoting National Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991)).
Passive inaction does not support a continuing violation theory. Id.; Paschal, 295 F.3d at 573.
         In evaluating whether plaintiff has alleged facts sufficient to make out a continuing violation,
it is necessary to first consider the contours of the civil rights claims he has asserted. “In procedural
due process claims, the deprivation by state action of a constitutionally protected interest in ‘life,
liberty or property’ is not itself unconstitutional; what is unconstitutional is the deprivation of such
an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (quoting
Parratt v. Taylor, 451 U.S. 527, 537 (1981)) (emphasis in Zinermon). It is undisputed that parents
have a fundamental liberty interest in the custody of their children and that state intervention in the
relationship between a parent and child must be accomplished by procedures meeting the requisites
of the Due Process Clause. See Smith v. Williams-Ash, 173 F. App’x 363, 366 (6th Cir. 2005). Even
a temporary deprivation of physical custody requires a hearing within a reasonable time. Id.
Plaintiff has asserted a colorable procedural due process claim—i.e., that he was denied a hearing
within a reasonable time.
        “To state a cognizable substantive due process claim, the plaintiff must allege ‘conduct
intended to injure in some way unjustifiable by any government interest’ and that is ‘conscience-
shocking’ in nature.” Mitchell v. McNeil, 487 F.3d 374, 377 (6th Cir. 2007) (quoting County of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998)). The government’s interest in protecting children
is just as compelling as the parents’ “abstract fundamental liberty interest in family integrity.”
Kottmyer v. Maas, 436 F.3d 684, 690 (6th Cir. 2000). Here, the juvenile court’s finding of probable
cause to remove plaintiff’s daughters, based on Amanda’s accusation of sexual abuse, is supported
by a compelling interest and does not, on its face, suggest government over-reaching that “shocks
the conscience.” However, to the extent plaintiff’s substantive due process claim is premised on
allegations that defendants denied him a hearing for some seven months after initially removing his
daughters and then deliberately perpetrated a fraud on the juvenile court, he makes a colorable
“shocks the conscience” claim.
         With respect to both due process claims, however, the district court determined that plaintiff
was aware of the complained-of wrongful conduct well over twelve months prior to the filing of his
complaint and his claims were therefore time-barred. The court rejected plaintiff’s reliance on the
continuing violation theory. Although the court reviews the district court’s decision de novo, the
district court’s analysis of the continuing violation issue is clear and succinct and represents a useful
starting point.
No. 07-5406           Eidson v. State of Tenn. Dep’t of Children’s Services, et al.            Page 5


        The district court acknowledged, with reference to the Tolbert standard, that plaintiff had
alleged wrongful acts by defendants that post-dated the initial removal of his daughters, i.e., the
continued denial of custody without proper notice and hearing, as well as Mooneyham’s perjured
testimony in the May 2004 hearing. By the time the hearing was conducted, however, the district
court observed, injury resulting from the alleged denial of procedural due process had ceased to
accrue, as plaintiff had, by then, been afforded notice and a hearing. Further, the court properly
recognized that, by the conclusion of the May 2004 hearing, the premises of plaintiff’s substantive
due process claims, i.e., Mooneyham’s allegedly perjured testimony and the finding of probable
cause to remove the daughters, were certainly known to plaintiff. The only allegation that was
deemed to possibly amount to a continuing violation after the hearing was that of continued
interference by defendants during the 90-day trial placement period. The district court considered
the allegation too vague to make out a due process violation. Accordingly, the district court held
that plaintiff’s claims failed to meet the requirements of the continuing violation doctrine and that
his cause of action accrued more than one year prior to the filing of his complaint.
        Plaintiff’s objection to this reasoning is groundless. He argues that his complaint contains
allegations of three kinds of wrongful action that continued after the May 2004 hearing:
(1) placement of his name on an internal sex offender registry; (2) continued prosecution of the
neglect petition after Amanda recanted her accusation; and (3) continued interference during the trial
placement period. He insists the injury he sustained as the result of a continuous series of events
did not accrue until October 22, 2004, when legal custody of his daughters was finally restored to
him. Yet, none of these allegedly continuing wrongful acts make out a deprivation of liberty without
due process or otherwise suggest unlawful conduct; and the complaint offers no reason to conclude
any of them continued beyond October 21, 2004. Granted, full legal custody was not restored until
October 22, 2004, but actual physical custody of his daughters had been returned to plaintiff in July
2004. That is, the injury resulting from the precipitating event had been substantially remedied in
July 2004—the return of plaintiff’s daughters having thus avoided any continuing constitutionally
cognizable injury.
        Any harmful effects resulting from actions allegedly taken by defendants after the juvenile
court proceeding are appropriately characterized as “continuing ill effects,” which do not make out
a continuing violation. The letter plaintiff received informing him that he had been indicated for
sexual abuse and his name placed in an internal database was not an unlawful act, but represents a
reasonable precaution, incidental to his daughter’s later-recanted allegation of sexual abuse. Even
though Amanda subsequently recanted her accusation, the earlier inclusion of plaintiff’s name on
the internal list, without more, hardly implicates any deprivation of liberty without due process.
       Plaintiff’s allegation of continued prosecution of the petition after Amanda’s recantation
appears to be based on the contention that defendants continued to fail to conduct the sort of
thorough investigation that would have exonerated him. Further, defendants are alleged to have
known of Mooneyham’s false testimony regarding his consent to the children’s removal and yet
continued to refrain from informing the juvenile court. These allegations fail to establish a
continuing violation, as mere inaction is not enough to satisfy the doctrine. Tolbert, 172 F.3d at 940;
Paschal, 295 F.3d at 573.
         Plaintiff has not identified any affirmative acts taken by defendants in furtherance of
“continued prosecution” except for his vague allegation of “continual interference” during the trial
placement period. This, too, hardly suggests unlawful conduct and, in any event, is nothing but an
ill effect of the original removal of the children, since the juvenile court had awarded temporary
custody to DCS in the May 2004 proceeding. Considering the seriousness of the original accusation,
and Amanda’s recanting thereof, DCS was certainly justified in cautiously questioning whether the
truth had in fact emerged and whether the daughters’ best interests were served by their return to
their father’s household. DCS had a legitimate reason and arguably an affirmative duty to continue
No. 07-5406            Eidson v. State of Tenn. Dep’t of Children’s Services, et al.              Page 6


monitoring the children during the trial placement period. Plaintiff’s complaint affords no support
for the conclusion that the “continual interference” he complains of was anything other than ordinary
inconvenience attendant to legitimate monitoring by DCS.
        Even viewing the allegations in the light most favorable to plaintiff, they fail, due to their
vagueness, to warrant a reasonable inference that the alleged interference rose to the level of a
deprivation of liberty without due process. As the Supreme Court recently reiterated, even under
Rule 12(b)(6) review, a complaint containing a statement of facts that merely creates a suspicion of
a legally cognizable right of action is insufficient. Bell Atlantic, 127 S.Ct. at 1965. “Factual
allegations must be enough to raise a right to relief above the speculative level.” Id. Plaintiff’s
complaint simply does not pass muster under this standard.
       Hence, it is apparent that plaintiff has failed to set forth facts facially establishing a
continuing violation during the twelve-month period immediately preceding the filing of his
complaint. The district court did not err in rejecting plaintiff’s continuing violation theory.
        C. Abstention Principles
        Plaintiff’s alternative argument for extension of the date of accrual of his cause of action is
based at least derivatively on ill-fitting abstention principles. Plaintiff contends that if he had filed
his § 1983 claims prior to the completion of the state juvenile court proceedings, the district court
would have been obliged to abstain. It follows, plaintiff argues, citing the Sixth Circuit’s ruling in
Shamaeizadeh v. Cuniga, 182 F.3d 391 (6th Cir. 1999), that his cause of action did not accrue until
the juvenile court proceedings concluded on October 22, 2004. The district court rejected this
argument as well. The district court accepted the notion that a federal court would have been
constrained to abstain from proceeding with plaintiff’s § 1983 claims during the pendency of the
juvenile court proceedings, but held this likelihood alone did not toll the running of the statute of
limitations and did not relieve plaintiff of the responsibility to timely file his claims. The district
court was also unpersuaded by plaintiff’s reliance on Shamaeizadeh, holding that its deferred-
accrual reasoning applied only in the context of state court criminal proceedings.
        Despite plaintiff’s characterization of his argument, the ruling in Shamaeizadeh is not based
on application of abstention principles. Yet, abstention principles are not totally inapposite. Except
in extraordinary circumstances federal courts should “permit state courts to try state cases free from
interference by federal courts.” Younger v. Harris, 401 U.S. 37, 43 (1971). The underlying concern
of Younger is the “threat to our federal system posed by displacement of state courts by those of the
National Government.” Moore v. Sims, 442 U.S. 415, 423 (1979). The Sixth Circuit has held that
Younger abstention is appropriate “when the state proceeding (1) is currently pending, (2) involves
an important state interest, and (3) affords the plaintiff an adequate opportunity to raise
constitutional claims.” Coles v. Granville, 448 F.3d 853, 865 (6th Cir. 2006). “[T]he temporary
removal of a child in a child-abuse context is . . . ‘in aid of and closely related to criminal statutes’”
and Younger abstention has been applied when there was a pending state court child abuse
proceeding. Moore, 442 U.S. at 423 (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)).
“A district court deciding to abstain under Younger has the option of either dismissing the case
without prejudice or holding the case in abeyance.” Coles, 448 F.3d at 866.
        These abstention principles form the backdrop for the parties’ arguments regarding accrual
of plaintiff’s cause of action, but are only marginally related to plaintiff’s argument based on
Shamaeizadeh. Shamaeizadeh represents an extension of the rule established in Heck v. Humphrey,
512 U.S. 477 (1994). In Heck, the Supreme Court held that Heck’s post-conviction action under
§ 1983 for claims analogous to the tort of malicious prosecution (brought during the pendency of
his state-court criminal appeal) would not accrue until a final adjudication in Heck’s favor in state
court, since the tort of malicious prosecution requires final adjudication in favor of the accused and
No. 07-5406            Eidson v. State of Tenn. Dep’t of Children’s Services, et al.                Page 7


any determination by the federal court regarding the legality of the prosecution would necessarily
effect the validity of the state court proceedings. Id. at 480-87. Heck does not rest on abstention
principles. Rather, the court held that Heck’s cause of action would not even accrue (i.e., an
essential element of his claim would not be satisfied) until Heck’s conviction were reversed or
vacated on direct appeal or otherwise. Id. at 484-87.
        In Shamaeizadeh, the Sixth Circuit extended the reasoning of Heck to a pre-conviction
situation. Shamaeizadeh never was convicted; criminal charges against him were dismissed pre-
trial. For purposes of evaluating the timeliness of his § 1983 unlawful search claim, the court held
that when a § 1983 claim would imply the invalidity of an anticipated future conviction, the statute
of limitations would not begin to run until the criminal charges were dismissed. Shamaeizadeh, 182
F.3d at 397-99. The Shamaeizadeh court, following Heck, did not rely on abstention principles, but
on deferred-accrual reasoning. In fact, the court expressly rejected the notion that the running of the
statute of limitations should be deemed to begin at the time of the wrongful action and then be
deemed tolled during any period that a federal court, applying abstention principles, were to stay
the § 1983 action during the pendency of the criminal proceedings. Such an approach, the court
reasoned, “would misdirect the criminal defendant,” distracting him from “focus[ing] on his primary
mode of relief—mounting a viable defense to the charges against him—before turning to a civil
claim under § 1983.” Id. at 399.
        Plaintiff here maintains that the district court erred in its failure to recognize that the juvenile
court child neglect proceedings are quasi-criminal in nature. He insists that the reasoning of
Shamaeizadeh is directly applicable and that his § 1983 cause of action did not accrue until after the
juvenile court proceedings concluded. Defendants point out, however, that, even if Shamaeizadeh
would otherwise be applicable, it has been divested of continuing vitality by the Supreme Court’s
recent decision in Wallace v. Kato, 127 S. Ct. 1091 (2007).
        In Wallace, the court specifically held that Heck is not to be extended into the pre-conviction
arena. Id. at 1098. The Wallace court recognized that deferred-accrual reasoning was unnecessary
and inappropriate in the pre-conviction setting because the common abstention practice of staying
the § 1983 action would afford adequate protection to the plaintiff. In an apt rhetorical question, the
Wallace court expressly rejected the rationale employed in Shamaeizadeh, i.e., that requiring a
criminal defendant to timely assert any civil claim would unfairly require him to divide his attention
between criminal and civil cases: “But when has it been the law that a criminal defendant, or a
potential criminal defendant, is absolved from all other responsibilities that the law would otherwise
place on him?” Id. at 1100.
       In Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir. 2007), the Sixth Circuit explicitly recognized
that Wallace “abrogates the holding in Shamaeizadeh”:
        This court, drawing on the reasoning in Heck. . . held [in Shamaeizadeh] that when
        a §1983 claim would imply the invalidity of a future conviction, the statute of
        limitations would not begin to run until the criminal charges have been
        dismissed. . . . In no uncertain terms, however, the Court in Wallace clarified that
        the Heck bar had no application in the pre-conviction context.
Id. at 234 (citations omitted; emphasis in original).
        Still, plaintiff argues that this case is distinguishable from Wallace. Even as he maintains
that child neglect and custody proceedings are quasi-criminal, he nevertheless insists that his § 1983
claims that he was deprived of custody of his children without due process are not analogous to
Wallace’s claims that he was arrested and detained without judicial process. He argues that his
No. 07-5406              Eidson v. State of Tenn. Dep’t of Children’s Services, et al.                      Page 8


claims are more analogous to the malicious-prosecution-type claims presented in Heck, claims which
Wallace recognized as distinguishable. See id. at 1096, 1098.
        Granted, some of plaintiff’s allegations are analogous to the sort of malicious-prosecution
claims addressed in Heck. Yet, they are not analogous in the ways that mattered most to the Heck
court. What made Heck’s malicious-prosecution-type § 1983 claims materially unique was the fact
that proof of the invalidity of Heck’s conviction was essential or at least integral to (1) proving his
claims and (2) recovering damages for the unlawful conviction. See Heck, 512 U.S. at 484-87.
Here, in contrast, plaintiff’s claims against defendants for due process violations (based primarily
on allegations of denial of a timely hearing and presentation of false testimony) could hypothetically
have been pursued and established without necessarily impugning the validity of any eventual
finding that he had abused his daughter. None of plaintiff’s claims is dependant on a determination
that he was wrongfully held to have abused his daughter. Plaintiff’s claims were brought prior to
a juvenile court adjudication of dependency and neglect—and indeed,      no final adjudication was ever
made before plaintiff’s daughters were returned to his custody.5
        Plaintiff acknowledges that the precipitating event in this action was the initial removal of
his daughters from his custody on November 18, 2003, based on the misconduct of a nonparty to this
action (i.e., his daughter’s false accusation) and before any of the alleged misconduct by defendants
occurred. Plaintiff could theoretically have prevailed on his due process claims (based on the
alleged ensuing misconduct of defendants) even if Amanda had never recanted her accusation and
plaintiff had ultimately been held responsible for abuse. Plaintiff’s due process claims are in this
respect more analogous to the false-arrest-type § 1983 claim presented in Wallace, the sort of action
that Heck recognized should be allowed to proceed, in the absence of some other bar, like abstention.
Id. at 486-87.
        Moreover, irrespective of the difference between types of § 1983 claims asserted, the rule
of Heck cannot be divorced from its post-conviction setting. This is the teaching of Wallace.
Wallace simply cannot be fairly read to imply that the accrual of a § 1983 malicious-prosecution-
type claim is necessarily and indefinitely delayed in a pre-conviction setting until there is some
accused-favorable resolution of pending or anticipated future prosecution. The Wallace court even
referred to the “Heck-required setting aside of the extant conviction” as it explained the
“impracticality” of the urged “bizarre extension” of Heck to the pre-conviction setting. Id. at 1098.
The court went on to observe that “[i]f a plaintiff files a false arrest[-type § 1983] claim before he
has been convicted (or files any other claim related to rulings that will likely be made in a pending
or anticipated criminal trial), it is within the power of the district court, and in accord with common
practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended.”
Id. Recognizing that a § 1983 plaintiff’s right to relief could be preserved in this manner, the
Wallace court deemed it unnecessary to extend the rule of Heck to the pre-conviction setting.
        The Wallace court thus took the same approach employed in this case by the district court,
which held first, that the pendency of juvenile court proceedings did not delay the accrual of plaintiff
Eidson’s § 1983 cause of action; and second, that plaintiff was required to proceed with his claims
within twelve months after they accrued and obtain an abstention-based stay pending resolution of
the juvenile court proceedings or suffer dismissal for filing beyond the period of limitation. Plaintiff
maintains this approach is not equitable. He observes that Wallace refrained from holding that the
running of the statute of limitations on the § 1983 action would be equitably tolled during any
abstention-based dismissal or stay of the § 1983 action. 127 S. Ct. at 1098-1100. Hence, he argues



         5
          Even the May 2004 juvenile court “probable cause” finding was not a final adjudication of abuse or neglect,
but merely a judicial validation of the initial temporary removal of the daughters from plaintiff’s custody.
No. 07-5406            Eidson v. State of Tenn. Dep’t of Children’s Services, et al.              Page 9


that Wallace affords no assurance that the statute of limitations would be tolled during the pendency
of an abstention-based stay.
        Plaintiff’s protest is overstated. The Wallace court did not hold that the running of the
limitation period could not be tolled; only that tolling is traditionally a matter of state law and that
adoption of an “omnibus” federal tolling rule would not be appropriate. Id. The Wallace court was
content to entrust the matter of tolling to abstaining district courts in the exercise of their discretion
on a case-by-case basis. Yet, prerequisite to obtaining any such tolling relief, of course, is the timely
filing of the § 1983 action that will prompt abstention during the pendency of related state court
proceedings. Because plaintiff did not timely file his § 1983 action, he forfeited any hope of such
relief. It follows that the district court did not err in refusing to recognize the Shamaeizadeh
extension of the rule of Heck. Although its given reason for doing so is questionable, its decision
has been subsequently vindicated by Wallace and Fox, and we are free to affirm the district court’s
ruling on other grounds. Dismas Charities, Inc. v. U.S. Dep’t of Justice, 401 F.3d 666, 677 (6th Cir.
2005).
        Accordingly, because we conclude that the rule of Heck does not apply in the pre-conviction
setting to delay accrual of plaintiff’s due process cause of action, we concur in the district court’s
ruling that plaintiff’s § 1983 claims are time-barred.
                                         III. CONCLUSION
         Victimized once by his daughter’s false accusation, plaintiff may have been doubly
victimized by overzealous or incompetent actions of child protection services workers. Yet, in the
face of a one-year limitation period, he failed to act quickly enough in seeking relief for the alleged
civil rights violations. The district court did not err in rejecting plaintiff’s arguments that accrual
of the cause of action was delayed or extended pursuant to the continuing violation doctrine or the
rule of Heck v. Humphrey. The district court’s dismissal of plaintiff’s complaint as time-barred is
therefore AFFIRMED.
