AB Realty, LLC v. Scott Lane
CourtCourt of Appeals for the Eighth Circuit
Date FiledNovember 6, 2026
Docket25-2082
StatusPublished
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Full Opinion
United States Court of Appeals
For the Eighth Circuit
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No. 25-2082
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AB Realty, LLC; Kay Anderson; Janae Anderson
Plaintiffs - Appellants
v.
Scott Lane, in his individual capacity; Kevin Mulcahy, in his individual capacity;
Hannah Wyble; Lori Vlach; Gerald Kuhn, in his individual capacity; The City of
Omaha
Defendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: March 18, 2026
Filed: November 6, 2026
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Before COLLOTON, Chief Judge, GRUENDER and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
The City of Omaha closed the Yale Park Apartment Complex for building-
code violations. Yale Park’s owner AB Realty, LLC and tenants Kay and Janea
Anderson sued the City, Omaha’s Assistant Director of Human Rights Gerald Kuhn,
Housing Inspectors Scott Lane and Kevin Mulcahy, and citizens Hannah Wyble and
Lori Vlach under 42 U.S.C. § 1983. AB Realty, LLC and the Andersons1 appeal the
dismissal of their Fourth, Fifth, and Fourteenth Amendment claims. Reviewing de
novo, we affirm. Meinen v. Bi-State Dev. Agency, 101 F.4th 947, 950 (8th Cir. 2024)
(standard of review).
I.
We describe the facts alleged by AB Realty and established by the exhibits
attached to or referenced in the complaint. See Miller v. Redwood Toxicology Lab’y,
Inc., 688 F.3d 928, 931 (8th Cir. 2012) (“[We] may consider some materials that are
part of the public record or do not contradict the complaint, as well as materials that
are necessarily embraced by the pleadings.” (citation omitted)).
During the summer of 2018, housing advocates Wyble and Vlack started
talking to Yale Park tenants about their living conditions and took pictures of the
building. They offered to document building code violations, helped tenants fill out
complaint forms, and sent information about violations and complaints to the City—
which began planning Yale Park’s closure. Omaha’s Chief Housing Inspector Lane
applied for and received a warrant to inspect and search Yale Park, relying mostly
on Wyble and Vlack’s information. Lane’s application cited suspected health and
safety violations in 84 units. It contained factual errors, including a false statement
that Kay denied Lane’s request to enter and inspect the building. Nonprofits and
local media knew that the City planned to close Yale Park, but AB Realty and Kay
did not.
1
Janea Anderson is a member and manager of AB Realty, LLC. Kay
Anderson disputes his role in the company, but a state-court jury found he was either
Yale Park’s owner or building manager. State v. Anderson, 10 N.W.3d 334, 360,
362 (Neb. 2024). As the district court noted, the “plaintiffs routinely fail to
adequately distinguish between themselves as individual plaintiffs and the rights
they each assert . . . repeatedly refer[ing] to themselves as a group and blend[ing]
their rights and interests together.” Where their allegations and arguments overlap
we refer to them collectively as “AB Realty.”
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The City executed the warrant on September 20, 2018. Police and housing
inspectors searched the property and tenants were forced to relocate. A few days
later, the City mailed AB Realty a list of alleged code violations, citing carbon
dioxide leaks, holes in the roof, non-functioning heat, exposed electrical wiring,
broken windows, faulty plumbing, and moldy circuit breakers. The City ordered
that Yale Park could not reopen until the violations were cured. AB Realty started
work on repairs but wanted to challenge the code violations and the closure of the
building. The City referred them to the Property Management Appeals Board, which
handles building code disputes, and AB Realty appealed to the Board in January
2019.
Meanwhile the City mailed AB Realty notices of around 2,000 total violations
and prosecuted Kay for misdemeanor violations of the City’s property maintenance
code. After finishing repairs, AB Realty reopened Yale Park in the spring of 2021
and filed this lawsuit. The district court2 granted the defendant’s motion to dismiss
in part and stayed the case pending the resolution of Kay’s criminal case. After a
jury found Kay guilty on a few counts but acquitted him of most, see State v.
Anderson, 10 N.W.3d 334, 346 (Neb. 2024), cert. denied sub nom. Anderson v.
Nebraska, 145 S. Ct. 1331 (2025); see also Carter v. Ludwick, 139 F.4th 982, 987
(8th Cir. 2025) (taking judicial notice of related state supreme court opinion), the
district court dismissed the remaining claims.
II.
AB Realty first argues the search warrant was invalid because Inspector Lane
lied about asking for permission to enter Yale Park and falsely alleged that police
were called to the complex, that the City had conducted inspections, that Kay used
“threat tactics” against tenants, and that a gas leak caused an explosion. According
2
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska, now deceased, granted in part the motion to dismiss. The
Honorable Robert F. Rossiter, Jr., Chief Judge, United States District Court for the
District of Nebraska, dismissed the remaining claims.
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to AB Realty this rendered the warrant invalid under Franks v. Delaware, 438 U.S.
154, 155–56 (1978), which made the search unconstitutional, see, e.g., Cronin v.
Peterson, 982 F.3d 1187, 1195 (8th Cir. 2020).
To establish a Franks violation, AB Realty must show that (1) Lane
deliberately, knowingly, or recklessly made false statements in the supporting
affidavit and (2) “the affidavit’s remaining content is insufficient to provide probable
cause.” Williams v. City of Alexander, 772 F.3d 1307, 1311 (8th Cir. 2014) (citation
omitted). Probable cause for administrative inspection warrants “may be based on
specific evidence of an existing violation or a showing that reasonable legislative or
administrative standards for conducting an inspection are satisfied with respect to a
particular establishment.” United States v. Jamieson-McKames Pharms., Inc., 651
F.2d 532, 541 (8th Cir. 1981) (cleaned up); see also Camara v. Mun. Ct. of S.F., 387
U.S. 523, 538 (1967).
Even excluding the information disputed by AB Realty, the warrant
application established probable cause for the inspection warrant. Lane wrote that
he received code violation complaints for 84 of the 100 units and referenced holes
in the building’s roof, untreated natural gas leaks, and Kay’s admission that he has
been “lackadaisical” in completing maintenance requests. See Anderson, 10
N.W.3d. at 356–57 (finding the revised warrant still supported a probable cause
finding in Kay’s criminal case). That was enough for probable cause.
Pointing to state law that allows inspection warrants to issue “only upon
showing that consent to entry for inspection purposes has been refused,” Neb. Rev.
Stat. § 29-832, AB Realty argues that the warrant was deficient because Lane never
asked for consent. The Nebraska statute is beside the point; a violation of state law
alone does not state a § 1983 claim. Stevenson v. Blytheville Sch. Dist. #5, 800 F.3d
955, 965 (8th Cir. 2015) (“Section 1983 guards and vindicates federal rights alone.”
(citation omitted)); Holloway v. Reeves, 277 F.3d 1035, 1038 (8th Cir. 2002) (“[A]
suit under 42 U.S.C. § 1983 can remedy only a violation of federal rights, and so any
violations of rights guaranteed by local or state laws are irrelevant for present
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purposes.” (citation omitted)). “[W]hether state law authorized the search [is]
irrelevant” because “state law [does] not alter the content of the Fourth
Amendment.” Virginia v. Moore, 553 U.S. 164, 171–72 (2008).
III.
According to AB Realty, “[t]he Defendants effectively deprived the Plaintiffs
of virtually all significant due process.” To state a procedural due process claim,
AB Realty “must demonstrate that the state deprived [them] of some ‘life, liberty, or
property’ interest” and “then establish that the state deprived [them] of that interest
without sufficient ‘process.’” reVamped LLC v. City of Pipestone, 163 F.4th 462,
466 (8th Cir. 2025) (citation omitted), cert. denied, 146 S. Ct. 2676 (2026). And AB
Realty must plead “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “[L]egal conclusions” or “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,” is not
enough. Id.
Reading AB Realty’s second amended complaint, we cannot decipher who is
allegedly responsible for what due process violation. Among other things, it alleges
that Wyble and Vlanch collected “invalid complaints” used to get the warrant; that
the City closed the entire building rather than individual units; that all the tenants
were evicted; that “Danger Closed” signs were wrongly posted on the buildings; that
Yale Park was not allowed to reopen before every purported violation was corrected;
that repairs were “delayed or impeded,” and that AB Realty was denigrated to
potential contractors. These scattershot allegations involve different defendants and
distinct interests, which change depending on which plaintiff is asserting them. See
Devines v. Maier, 665 F.2d 138, 142 (7th Cir. 1981) (discussing the difference
between landlord and tenant rights); see also State ex rel. Wagner v. Evnen, 948
N.W.2d 244, 257 (Neb. 2020) (per curiam) (noting the difference “between the
nature of rights held by an individual and by a business or other legal entity”).
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Since AB Realty has failed to identify what constitutionally protected interests
are at stake, see reVamped, 163 F.4th at 466, and who violated their due process
rights and how, we cannot assess what process was constitutionally due, see Dover
Elevator Co. v. Ark. State Univ., 64 F.3d 442, 445–46 (8th Cir. 1995) (“Analysis of
either a procedural or substantive due process claim must begin with an examination
of the interest allegedly violated.”); Temple v. Mercier, 127 F.4th 709, 714 (8th Cir.
2025) (“[T]he extent of procedural safeguards required depends on the nature of the
interest at stake.”); see, e.g., Rochling v. Dep’t of Veterans Affs., 725 F.3d 927, 932
(8th Cir. 2013) (dismissing a due process claim because plaintiffs “speculative and
conclusory” allegations did not sufficiently state a deprivation of a constitutionally
protected interest), and we affirm the dismissal of these claims.3
IV.
AB Realty finally alleges that “[t]he City’s actions constitute an effective and
inverse taking, causing damage to AB Realty’s real property rights.” It is not clear
what that means. 4 Under the Fifth Amendment, there are two kinds of takings: per
se takings and regulatory takings. Hawkeye Commodity Promotions, Inc. v. Vilsack,
486 F.3d 430, 440 (8th Cir. 2007). AB Realty has not clarified which kind they are
alleging and, like the district court, we are not convinced they properly pleaded
either.
3
Since AB Realty’s claim fails the first step of our due process inquiry, we do
not address their additional arguments that the City’s failure to follow its procedure
for issuing code citations violates due process and that the City is liable for Wyble
and Vlanch’s alleged due process violations even though they are private citizens.
See Rochling, 725 F.3d at 931 (“A procedural due process analysis has two steps,”
and “[t]he plaintiff must first show deprivation of a ‘constitutionally protected life,
liberty or property interest.’” (citation omitted)).
4
If AB Realty means inverse condemnation, that is a state-law cause of action
to remedy an alleged taking, not a type of taking. See, e.g., Am. Family Ins. v. City
of Minneapolis, 836 F.3d 918, 923 (8th Cir. 2016) (discussing Minnesota’s inverse
condemnation procedure).
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At times, AB Realty seems to raise a per se takings claim. The operative
complaint says “[t]he City effectively took the Yale Park Apartments by shutting
them down,” “prevent[ed] AB Realty from using the Property to its highest and best
use,” and “failed to institute condemnation proceedings,” despite “possess[ing] the
power of eminent domain.” See Cedar Point Nursery v. Hassid, 594 U.S. 139, 148–
49 (2021) (physical appropriation is a per se taking); see Lucas v. S.C. Coastal
Council, 505 U.S. 1003, 1015 (1992) (a regulation which results in the total
deprivation of the land’s productive use is a per se taking). But the “essential
question” for a per se taking is “whether the government has physically taken
property for itself or someone else.” Cedar Point Nursery, 594 U.S. at 149. AB
Realty was and is the owner of Yale Park; there is no allegation that could support a
finding that the City took AB Realty’s asserted “real property rights.” See id.
That leaves a regulatory taking. “A lawful exercise of a state’s police power
to regulate in the interest of public health and safety is generally not a [regulatory]
taking,” reVamped, 163 F.4th at 469, and AB Realty has not argued that Yale Park’s
closure amounted to one under Penn Central’s balancing test, see Penn Cent.
Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978), so we agree that AB
Realty has not stated a regulatory taking. See, e.g., Golden Glow Tanning Salon,
Inc. v. City of Columbus, 52 F.4th 974, 981 n.8 (5th Cir. 2022) (regulatory taking
argument waived on appeal where plaintiff did not argue Penn Central before the
district court); cf. reVamped, 163 F.4th at 469 (Minnesota’s closure of a hotel did
not amount to a taking because business owners are “not entitled to be free from
temporary enforcement targeting well-documented safety deficiencies.”).
V.
Because AB Realty failed to plead a constitutional violation, we affirm the
dismissal of all claims against all defendants. Kiefer v. Isanti County, 71 F.4th 1149,
1154 (8th Cir. 2023) (“Without a constitutional violation, there can be no § 1983
liability.”).
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