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. FONDACO, 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, this panel has determined 

unanimously that oral argument would not materially 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This order and judgment is not binding precedent, except under the doctrines 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 judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent 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 Court
2 

This case arose out of a custody dispute between Christian Eyring and his exwife over their minor son, T.H.E. At one point during that dispute, T.H.E. wore a 

wire to record an interview with a court-appointed social worker. The resulting 

recording later proved detrimental to Eyring’s initial bid for custody over T.H.E. 

Upon eventually regaining custody of T.H.E., Eyring filed this suit against the city 

and state employees allegedly responsible for the wiretap incident, asserting claims 

under 42 U.S.C. § 1983 on behalf 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 the defendants were entitled to qualified immunity. We affirm. 

On appeal, Eyring first contends that Utah’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 explicitly disavowed reliance on the minor tolling statute. See 

App. 76 (“Statutory tolling . . . is not applicable in this case.”) (citing Colosimo v. 

Roman Catholic Bishop, 156 P.3d 806, 810-11 (Utah 2007) (applying the minor 

tolling statute to toll the limitations period 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 determine whether the district court’s ruling on 

qualified immunity would have preclusive effect against a future suit brought by his 

 1

 He concedes that the statute of limitations has run on his own claims. 
3 

son. But at this stage, such a determination would be an advisory opinion, which we 

have no power to issue. See In re Special Grand Jury 89-2, 450 F.3d 1159, 1170 

(10th Cir. 2006) (“[This Court’s] judgments must resolve a real and substantial 

controversy admitting of specific relief through a decree of a conclusive character, as 

distinguished from an opinion advising what the law would 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 his son in this lawsuit. See Fed. R. Civ. P. 17(a)(1)(C), 

(c)(1) (permitting guardians to sue on behalf of minors). The preclusive effect of this 

lawsuit on any future litigation, however, must be determined by the court presiding 

over that future litigation—not this one. See 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 regarding qualified immunity once it 

found that the statute of limitations had run. Federal statutes of limitation, however, 

are jurisdictional “only if Congress 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, beyond setting an exception-free deadline, to 

tag a statute of limitations as jurisdictional . . . .”). In the context of Section 1983 

claims, the requisite clear statement is necessarily missing: Congress did not 

establish any federal statute of limitations for Section 1983 claims, let alone state that 
4 

such a deadline would be jurisdictional. See Varnell v. Dora Consol. Sch. Dist., 756 

F.3d 1208, 1212 (10th Cir. 2014) (noting that federal courts adjudicating Section 

1983 claims must fill the legislative gap by borrowing analogous state statutes of 

limitations). As such, the district court did not lack jurisdiction to issue an 

alternative holding regarding qualified immunity after it found the statute of 

limitations had run. 

Finally, Eyring contends that the defendants 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 statute of limitations, and 

Eyring did not challenge that ruling below or on appeal, that ruling fully disposes of 

this case or controversy. Thus, we have no need to consider Eyring’s challenge to the 

district court’s alternative ruling that T.H.E.’s claims 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 association. Although 

such a claim was arguably raised in his complaint, he advanced no argument 

regarding that claim when opposing the defendants’ motions to dismiss before the 

district court. Because Eyring 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