reVamped LLC, a Minnesota limited liability company v. City of Pipestone, a Minnesota municipality

United States Court of Appeals
For the Eighth Circuit
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No. 25-1076
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reVamped LLC, a Minnesota limited liability company; Heliocentrix LLC, a
Minnesota limited liability company; Tammy Grubbs; Vanda Smrkovski
Plaintiffs - Appellants
v.
City of Pipestone, a Minnesota municipality; Doug Fortune, in his individual and
official capacities
Defendants - Appellees
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 22, 2025
Filed: December 23, 2025
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Before COLLOTON, Chief Judge, LOKEN and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Douglas E. Fortune, building administrator for the City of Pipestone, closed
the Calumet Inn from March 10 to April 30, 2020. Tammy Grubbs; reVamped,
LLC; Vanda Smrkovski; and Heliocentrix, LLC (collectively, the “Inn Owners”)
sued the City and Fortune alleging that the closure order violated their Fourteenth
Amendment procedural due process rights and was an uncompensated regulatory

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taking in violation of the Fifth Amendment. The district court1 granted summary
judgment to the City and Fortune. The Inn Owners appeal. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
I.
The Inn has a history of disrepair causing safety risks. On December 18, 2017,
a window fell off. On January 2, 2018, a 15-pound stone fell from it. Fortune
barricaded the sidewalk below. By January 9, the Inn was on Fortune’s “blighted
list.” He threatened to close the Inn on May 24 because necessary repairs to its walls
and windows had not been made. He again threatened to close it on August 21
because repairs had still not been made. The Inn finally made the repairs with help
of a financial grant from the City, avoiding emergency closure.
On November 13, 2019, deputy fire marshal George E. Shellum did an
inspection of the Inn, finding nine fire code violations. He notified the Inn’s staff of
those violations, with a deadline for compliance, in an inspection order. On January
2, 2020, a fire broke out in a guest’s room. Sprinklers did not activate. Two children
were there but were not hurt. The Inn did not comply with the inspection order by
the deadline of February 13.
On March 6, health inspector Jason Kloss notified Grubbs, the Inn’s equitable
owner, that Shellum would do a follow-up fire inspection on March 9. Kloss
mentioned the fire and the overdue items from the inspection order. Though Grubbs
protested she did not know about the inspection order, Kloss warned her that failure
to comply with it by March 9 would result in emergency closure of the Inn.
On March 9, Shellum, Kloss, and Fortune inspected the Inn. Five of the nine
violations in the inspection order had not been fixed. Shellum documented eight
new violations. The next day, Fortune issued the closure order that
1 The Honorable Jeffrey M. Bryan, United States District Judge for the District
of Minnesota.

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“CONDEMNED” the Inn pending resolution of the fire code violations and other
safety issues. Fortune later explained that during the second inspection, he observed
safety hazards that “endangered life” and left only two options: “Remove the hazard
or remove the occupants from the hazard.” He said: “That’s exactly what I did. I
removed the occupants.”
On March 20, the Inn Owners demanded that the City Council reverse the
closure order or hold a hearing. They reiterated those demands on March 23. On
April 8, Fortune wrote Grubbs that, because of her efforts to comply with the
inspection orders, he would lift the closure order if she fixed four of the “most
imminent and compelling” safety hazards. On April 13, the City advised the Inn
Owners that the City Council could not hold a timely appeal hearing because of the
COVID-19 pandemic. The City also advised them to file an appeal with the State
Building Code Appeals Board. The Inn Owners prepared an appeal on April 28 but
never submitted it. On April 30, Fortune rescinded the closure order because Grubbs
had satisfied the requirements in his April 8 letter.
Though Fortune had rescinded the closure order, Kloss required the Inn to
remain closed until Grubbs fixed all outstanding fire code violations. She did so by
November 5. The Inn operated until May of 2022 when it closed permanently.
The district court granted summary judgment to the City and Fortune. The
Inn Owners appeal, arguing: (1) The closure order violated their Fourteenth
Amendment procedural due process rights; (2) qualified immunity should not shield
Fortune in his individual capacity; and (3) the closure order was an uncompensated
regulatory taking in violation of the Fifth Amendment. “This court reviews de novo
a grant of summary judgment.” Torgerson v. City of Rochester, 643 F.3d 1031,
1042 (8th Cir. 2011) (en banc). Summary judgment is appropriate “[w]here the
record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party.” Id. at 1042 (citation and internal quotation marks omitted).

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II.
The Inn Owners argue that the City and Fortune, in his official capacity,
violated their Fourteenth Amendment procedural due process rights. See 42 U.S.C.
§ 1983 (permitting recovery against local government employees who violate
constitutional rights when acting in their official capacity); Monell v. Department
of Soc. Servs., 436 U.S. 658, 694 (1978) (holding that a local government may be
liable if a policy or custom causes a constitutional violation).
“Procedural due process claims require a two-step analysis. Initially, a
plaintiff must demonstrate that the state deprived him of some ‘life, liberty, or
property’ interest. If successful, the plaintiff must then establish that the state
deprived him of that interest without sufficient ‘process.’” Krentz v. Robertson,
228 F.3d 897, 902 (8th Cir. 2000), quoting U.S. Const. Amend. XIV, §1. In
determining sufficient process, this court considers (1) the private interest affected;
(2) the risk of erroneous deprivation of such interest, including the probative value
of substitute or additional safeguards; and (3) the government’s interests, including
the function involved and the burdens that any additional or substitute procedural
requirements would entail. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
The inquiry “focuses not on the merits of a deprivation, but on whether the State
circumscribed the deprivation with constitutionally adequate procedures.” Parrish
v. Mallinger, 133 F.3d 612, 615 (8th Cir. 1998). See Reed v. Goertz, 598 U.S. 230,
236 (2023) (“[A] procedural due process claim is not complete when the deprivation
occurs. Rather, the claim is complete only when the State fails to provide due
process.”) (cleaned up) (citation omitted).
Assuming without deciding that the Inn Owners had a protected property
interest, the Inn Owners still fail to show an unconstitutional deprivation of their
procedural due process rights under the second and third Mathews factors.

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A.
The risk of erroneous deprivation of the Inn Owners’ (assumed) property
interest was low because the regulations authorizing summary administrative action
(1) were specific, and (2) provided for adequate post-deprivation due process. Hodel
v. Virginia Surface Min. & Reclamation Ass’n, Inc., 452 U.S. 264, 301–03 (1981).
In Hodel, the Court held that a law allowing the government to issue immediate
cessation orders to mines that posed an “imminent danger to the health and safety of
the public” was “specific enough to control governmental action and reduce the risk
of erroneous deprivation.” Id. at 301. Because mine owners were afforded prompt
and adequate post-deprivation hearings and the opportunity for judicial review, the
law did not violate the Due Process Clause. Id. at 303.
Here, Fortune exercised his discretion to temporarily close the Inn under the
Minnesota State Building Code, which requires the building administrator to vacate
a building if it is “structurally unsafe, not provided with adequate egress, a fire
hazard, or otherwise dangerous to human life.” Minn. R. 1300.0180 (2025). This
language is “specific enough to control governmental action and reduce the risk of
erroneous deprivation.” See Hodel, 452 U.S. at 301. See also San Geronimo Caribe
Project, Inc. v. Acevedo-Vila, 687 F.3d 465, 486 (1st Cir. 2012) (holding that a state
statute authorizing summary administrative action where “there is imminent danger
to the public health, safety and welfare or [in situations] which require immediate
action by the agency” was specific enough to pass constitutional muster); Recchia
v. City of Los Angeles Dep’t of Animal Servs., 889 F.3d 553, 561 (9th Cir. 2018)
(same for a state statute authorizing immediate seizure of animals where an officer
has “reasonable grounds to believe that very prompt action is required to protect the
health and safety of the animal or the health and safety of others”).
As district court correctly noted, the Inn Owners had at least three avenues to
appeal the closure order: the City Council, the State Building Code Appeals Board,
and certiorari review. See Pipestone, Minn., C ODE § 151.11 (2025) (detailing the
process by which an aggrieved party may file an application for appeal with City
Council and seek certiorari review); Minn. R. 1300.0230 (2025) (providing for a

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direct appeal to the State Building Code Appeals Board); Minn. Stat. § 606.06
(2022) (authorizing writs of certiorari to review administrative orders).
The Inn Owners argue that they tried to resolve the issue through the City
Council but encountered delay and confusion. Assuming without deciding that they
submitted a “properly completed” application for review to the City Council and it
failed to hold a hearing within 10 working days, the Inn Owners failed to appeal
directly to the State Building Code Appeals Board. See Minn. R. 1300.0230 (2025)
(“Appeals hearings must occur within ten working days from the date the
municipality receives a properly completed application for appeal. If an appeals
hearing is not held within this time, the applicant may appeal directly to the State
Building Code Appeals Board.”). They likewise failed to seek a writ of certiorari.
See Pipestone, Minn., C ODE § 151.11(E) (2025) (“Any person . . . shall have the
right to apply to the appropriate court for a writ of certiorari to correct errors of
law.”); Minn. Stat. § 606.06 (2022). The Inn Owners “cannot complain of a
violation of procedural due process when [they have] not availed [themselves] of
existing procedures.” See Anderson v. Douglas Cnty., 4 F.3d 574, 578 (8th Cir.
1993).
B.
The Inn Owners argue they were entitled to more due process before Fortune
issued the closure order. But the City and Fortune had a substantial interest in
protecting public health and safety. Providing additional pre-deprivation process
would have imposed an untenable burden on them.
“[W]here a State must act quickly, or where it would be impractical to provide
pre[-]deprivation process, post[-]deprivation process satisfies the requirements of
the Due Process Clause.” Gilbert v. Homar, 520 U.S. 924, 930 (1997). “Protection
of the health and safety of the public is a paramount governmental interest which
justifies summary administrative action.” Hodel, 452 U.S. at 300. See Booker v.
City of St. Paul, 762 F.3d 730, 736 (8th Cir. 2014) (holding that a city was justified

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in taking a vehicle from a driver suspected of driving under the influence because of
the city’s substantial interest in public safety).
In Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412 (3d Cir. 2008),
the city code inspector condemned apartment buildings immediately after inspection
revealed mold contamination that he believed posed a serious health threat to
residents. Id. at 415. The owner argued that mold contamination was not sufficient
to contravene pre-deprivation due process, and the code inspector did not investigate
thoroughly enough to justify the emergency action. Id. at 418. The Third Circuit
disagreed because the code inspector relied on competent evidence to support a
reasonable belief that mold contamination was an emergency. Id. at 419–20,
adopting the analysis of Catanzaro v. Weiden, 188 F.3d 56, 63 (2d Cir. 1999).
Here, Fortune relied on competent evidence and reasonable belief to
temporarily close the Inn based on a threat to public health and safety. Fortune knew
the Inn’s history of structural safety risks. And by March 10, 2020, he reasonably
believed that its fire suppression system had failed in response to a fire. He knew
the Inn had not complied with the inspection order for nearly four months. He
participated in a follow-up fire inspection that found five overdue compliance items
and eight new violations. That inspection showed structural and fire dangers that
caused him to exercise his authority to close the Inn rather than “take that chance on
the life, safety and health of the occupants of that building.”
The Inn Owners complain that the safety issues in the closure order were not
emergencies sufficient to circumvent pre-deprivation process, and if Fortune had
conducted a more thorough investigation, he would have known that. But “Hodel
directs [this court] to accord the decision to [issue the closure order] some deference,
and not to engage in a hindsight analysis of whether the [Inn] actually created an
immediate danger to the public.” See Catanzaro, 188 F.3d at 62. See also Elsmere
Park, 542 F.3d at 420 (“Where government officials are faced with a situation in
which a failure to act quickly could have serious health consequences, perfection or
near perfection is not the standard.”); Hodel, 452 U.S. at 302 (“The possibility of

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administrative error inheres in any regulatory program; statutory programs
authorizing emergency administrative action prior to a hearing are no exception.”).
Fortune’s justification supports summary administrative action. See Hodel,
452 U.S. at 300. See also Ewing v. Mytinger & Casselberry, 339 U.S. 594, 599–
600 (1950) (noting that summary destruction of property without prior notice or
hearing for the protection of public health is among “the oldest examples” of
permissible government action). Because “swift action [was] necessary to protect
the public health and safety,” Inn Owners were not entitled to more pre-deprivation
process. See Hodel, 452 U.S. at 301. Neither the City nor Fortune, in his official
capacity, are liable because “[a]bsent a constitutional violation . . . there can be no
§ 1983 or Monell liability.” Aden as Tr. for Estate of Aden v. City of Bloomington,
Minn., 128 F.4th 952, 960 (8th Cir. 2025) (citation and internal quotation marks
omitted).
III.
An official is entitled to qualified immunity unless (1) the official violated a
statutory or constitutional right and (2) the right was clearly established at the time
of the challenged conduct. Ambrose v. Young, 474 F.3d 1070, 1077 (8th Cir. 2007).
This court may exercise its discretion to address the second prong first. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). Even if the Inn Owners could show that
Fortune’s conduct violated their procedural due process rights, he is entitled to
qualified immunity because the Inn Owners point to no authority that clearly
proscribes Fortune’s conduct. The district court correctly ruled that Fortune, in his
individual capacity, was entitled to qualified immunity.
IV.
Fortune’s temporary closure of the Inn did not amount to a regulatory taking
proscribed by the Fifth Amendment. A lawful exercise of a state’s police power to
regulate in the interest of public health and safety is generally not a taking. Outdoor
Graphics, Inc. v. City of Burlington, Iowa, 103 F.3d 690, 695 (8th Cir. 1996). “For

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example, the government owes a landowner no compensation for requiring him to
abate a nuisance on his property, because he never had a right to engage in the
nuisance in the first place.” Cedar Point Nursery v. Hassid, 594 U.S. 139, 160
(2021).
Here, Fortune, acting under the Minnesota State Building Code, closed the
Inn to preserve public health and safety. The Inn Owners may have been entitled to
operate their retail business in the ordinary course, but they were not entitled to be
free from temporary enforcement targeting well-documented safety deficiencies.
* * * * * * *
The judgment is affirmed.
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