Wagner et al v. Nebraska School Activities Association

Filing 11

MEMORANDUM AND ORDER - Defendant's Motion to Dismiss (Filing No. 8 ) is granted. The Plaintiffs' Verified Petition for Temporary Restraining Order and the claims presented therein are dismissed, with prejudice. A separate Judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT WAGNER and SHAWNNA
WAGNER, on behalf of their minor son,
BRANDON WAGNER,
Plaintiffs,
v.
NEBRASKA SCHOOL
ACTIVITIES ASSOCIATION,
Defendant.

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CASE NO. 8:15CV343

MEMORANDUM
AND ORDER

This matter is before the Court on the Defendant’s Motion to Dismiss (Filing No. 8).
Plaintiffs have submitted no brief in opposition to the Motion.
On September 17, 2015, the Plaintiffs filed a Verified Petition for Temporary
Restraining Order (Filing No. 1), asking this Court to enjoin the Defendant from preventing
Brandon Wagner (“Brandon”) from playing in the Omaha Central High School Homecoming
football game on September 17, 2015. In the Petition, the Plaintiffs noted that Brandon
was ejected from an Omaha Central High School football game on September 11, 2015,
and was suspended from the following game, due to a block he executed on an opposing
player during an interception play. (Id. at 4.) The Plaintiffs’ Petition also asked the Court
to declare the Defendant’s rules, regulations, and bylaws unconstitutional under the Due
Process Clause and Equal Protection Clause of the Fourteenth Amendment of the United
States Constitution, and permanently enjoin the Defendant from enforcing its rules.
This Court conducted an evidentiary hearing on September 17, 2015, applying the
standards prescribed in Dataphase Sys., Inc. v. C. L. Sys., Inc., 640 F.2d 109, 114 (8th Cir.

1981)(en banc), and denied the Plaintiffs’ request for preliminary injunctive relief.1 In the
pending Motion to Dismiss, the Defendant argues that the Plaintiffs’ claims regarding the
September 17, 2015, game are moot and fail to state a claim on which relief can be
granted; the Plaintiffs lack standing to pursue their other claims, which are also claims on
which no relief can be granted; and Plaintiffs have failed to join an indispensable party, i.e.,
Omaha Public Schools.
The Court has reviewed the content of the Plaintiffs’ Petition, applying the principles
prescribed by the United States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).2 To the extent the
Plaintiffs’ claims are not moot, the Court concludes that the Plaintiffs have failed to state
claims on which relief may be granted.3 The Petition will be dismissed, with prejudice,
pursuant to Fed. R. Civ. P. 12(b)(6).

1

At the hearing, the Defendant represented that Brandon struck the opposing player with an
unauthorized, dangerous block, injuring the opponent and causing him to be transported to a hospital by
ambulance. Defendant also represented that Brandon stood over the injured opponent after executing the
block, and taunted him with vulgar language.
2

“Two working principles underlie . . . Twombly. First, the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). “Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss.” Id. at 1950 (citing Twombly, 550 U.S. at 556). “Determining whether a
complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id.
3

Plaintiffs fail to present any facts to support a claim based on an alleged violation of the Equal
Protection Clause. With respect to the Due Process Clause, Plaintiffs’ allegations are also inadequate.
See In re U.S. Ex. Rel. Missouri State High Sch. Activities Ass’n, 682 F.2d 147, 153 n.8 (8th Cir. 1982)(“‘a
student’s interest in participating in a single year of interscholastic athletics amounts to a mere expectation
rather than a constitutionally protected claim of entitlement.’”)(quoting Walsh v. Louisiana High Sch.
Athletic Ass’n, 616 F.2d 152, 159-60 (5th Cir. 1980), cert. denied, 449 U.S. 1124 (1981)); Brands v.
Sheldon C’mty School, 671 F. Supp. 627, 630-31 (N.D. Ia. 1987) (High school athlete was not deprived a
liberty or property when school declared him ineligible for high school wrestling team, so procedural due
process rights did not apply).

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Accordingly,
IT IS ORDERED:
1.

Defendant’s Motion to Dismiss (Filing No. 8) is granted;

2.

The Plaintiffs’ Verified Petition for Temporary Restraining Order and the
claims presented therein are dismissed, with prejudice; and

3.

A separate Judgment will be entered.

DATED this 23rd day of November, 2015.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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