UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ CHRISTIAN B. EYRING, individually and as Guardian of T.H.E. (minor child), Plaintiff - Appellant,

v. PETER A. FONDAC O, Murray Police Chief; TROY MCCOMBE, Murray Police Detective; MEG ROWLAND, Murray Police Officer; ALISSA BLACK, Murray Crime Victim Advocate; BRITTANY JONES, Department of Children and Family Services Case Worker, Defendants - Appellees, and MANDY ROSE, Salt Lake Assistant District Attorney, Defendant. No. 15-4032 (D.C. No. 2:13-CV-01137-DB) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , EBEL , and MORITZ , Circuit Judges.

________________ _________________

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 2, 2016
Elisabeth A. Shumaker Clerk of Court2 This case arose out of a custody disput e between Christian Eyring and his exwife over their minor son, T. H.E. At one point during th at dispute, T.H.E. wore a wire to record an interview with a cour t-appointed social worker. The resulting recording later proved detrimental to Ey ring’s initial bid for custody over T.H.E. Upon eventually regaining custody of T.H.E ., Eyring filed this su it against the city and state employees allegedly responsible for the wiretap incident, asserting claims under 42 U.S.C. § 1983 on beha lf of both himself and T.H. E. The district court dismissed all of the claims, finding that the statute of limitations had run and, in the alternative, that th e defendants were entitled to qualif ied immunity. We affirm. On appeal, Eyring first contends that Ut ah’s minor tolling statute, Utah Code Ann. § 78B-2-108, prevented the statute of limitations from running on his son’s claims. 1 Yet, in responding to the defendants’ motions to dismiss his and his son’s claims below, Eyring explicit ly disavowed reliance on the minor tolling statute. See App. 76 (“Statutory tolling . . . is not applicable in this case.”) (citing Colosimo v. Roman Catholic Bishop, 15 6 P.3d 806, 810-11 (Utah 2007) (applying the minor tolling statute to toll the limitations peri od until the plaintiffs turned eighteen)). Because that “ theory was intentionally relinquished or abandoned in the district court, we . . . deem it waived and refuse to consider it.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127 (10th Cir. 2011). Eyring next asks the Court to determin e whether the district court’s ruling on qualified immunity would have preclusive effe ct against a future suit brought by his

1 He concedes that the statute of limitations ha s run on his own claims.3 son. But at this stage, such a determinat ion would be an advisory opinion, which we have no power to issue. See In re Sp ecial Grand Jury 89-2, 450 F.3d 1159, 1170 (10th Cir. 2006) (“[This C ourt’s] judgments must reso lve a real and substantial controversy admitting of speci fic relief through a decree of a conclusive character, as distinguished from an opini on advising what the law w ould be upon a hypothetical state of facts.”) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975) ). It is beyond dispute that Eyring, acting in his capacity as guardian of T.H.E., has both filed and litigated claims on behalf of hi s son in this lawsuit. See Fed. R. Civ. P. 17(a)(1)(C), (c)(1) (permitting guardians to sue on behalf of minors). Th e preclusive effect of this lawsuit on any future litigati on, however, must be determ ined by the court presiding over that future litigation—not this one. S ee In re Special Grand Jury 89-2, 450 F.3d
at 1170. Proceeding on the assumption that the district court’s rulings would be preclusive against T.H.E.’s future claims, Eyring contends that the district court lacked jurisdiction to issue an alternative ruling regard ing qualified immunity once it found that the statute of limi tations had run. Federal stat utes of limitation, however, are jurisdictional “only if C ongress has clearly stated as much.” United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015) (internal quotation omitted) (“Congress must do something special, beyon d setting an excepti on-free deadline, to tag a statute of limitations as jurisdictional . . . .”). In the context of Section 1983 claims, the requisite clear statement is nece ssarily missing: Congress did not establish any federal statute of limitations for Section 1983 claims, let alone state that4 such a deadline would be jurisdictional. S ee Varnell v. Dora Co nsol. Sch. Dist., 756 F.3d 1208, 1212 (10th Cir. 201 4) (noting that federal c ourts adjudicating Section 1983 claims must fill the le gislative gap by borrowing an alogous state statutes of limitations). As such, the district cour t did not lack jurisd iction to issue an alternative holding regarding qualified im munity after it found the statute of limitations had run. Finally, Eyring contends that the defe ndants were not entitled to qualified immunity. However, since Eyring’s claims on behalf of his son, T.H.E., were alternatively barred by the district court on the basis of a statut e of limitations, and Eyring did not challenge that ruling below or on appeal, that ruling fully disposes of this case or controversy. T hus, we have no need to consider Eyring’s challenge to the district court’s alternativ e ruling that T.H.E.’s clai ms are barred by qualified immunity. See Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 877 ( 10th Cir. 2004). Hence, we do not consider that issue on appeal. Finally, Eyring argues for the first time on appeal that the wiretap episode violated T.H.E.’s substantive due process right to familial asso ciation. Although such a claim was arguably raised in his complaint, he advanced no argument regarding that claim when opposing the defendants’ moti ons to dismiss before the district court. Because Eyri ng abandoned that claim in the district court, we deem it waived, and do not consider it. See Richison, 634 F.3d at 1127.5 For the foregoing reasons, we AFFIRM the district court’s dismissal of Eyring’s and T.H.E.’s claims.

Entered for the Court

David M. Ebel Circuit Judge