Cuervo v. Sorenson

Appellate Case: 22-1387 Document: 010111103112 Date Filed: 08/30/2024 Page: 1

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 30, 2024

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

_________________________________

PATRICIA CUERVO,

Plaintiff - Appellant,

v. No. 22-1387

TODD SORENSON, Captain, Mesa

County Sheriff's Office; TRAVIS

CHRISTENSEN, Sergeant, Mesa County

Sheriff's Office; MARCO MONTEZ,

Sergeant, Mesa County Sheriff's Office;

TIM ORR, Sergeant, Mesa County

Sheriff's Office; JENNA REED,

Investigator, Mesa County Sheriff's Office;

ERIC OLSON, Investigator, Mesa County

Sheriff's Office; CURTIS CALLOW,

Deputy, Mesa County Sheriff's Office;

DONALD LOVE, Deputy, Mesa County

Sheriff's Office; SETH PARKER, Deputy,

Mesa County Sheriff's Office; THOMAS

STUCKENSCHNEIDER, Deputy, Mesa

County Sheriff's Office; JOSH SANCHEZ,

Deputy, Mesa County Sheriff's Office;

RYAN REASONER, Deputy, Mesa

County Sheriff's Office; GARTH COWLY,

Deputy, Mesa County Sheriff's Office;

SALMINEO ESPINDOLA, Deputy, Mesa

County Sheriff's Office; DEVRIN

SANDELL, Deputy, Mesa County Sheriff's

Office; MIKE MILLER, Investigator,

Mesa County Sheriff's Office; JAMIE

PENNAY, Sergeant, Mesa County Sheriff's

Office,

Defendants - Appellees.

_________________________________

Appellate Case: 22-1387 Document: 010111103112 Date Filed: 08/30/2024 Page: 2

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 1:20-CV-00671-WJM-GPG)

_________________________________

Sean Michael McDermott, McDermott Stuart & Ward LLP, Denver, Colorado, for

Plaintiff-Appellant.

Chris W. Brophy (Andrew B. Clauss with him on the briefs), Dinsmore & Shohl LLP,

Denver, Colorado, for Defendants-Appellees.

_________________________________

Before HOLMES, Chief Judge, McHUGH, and CARSON, Circuit Judges.

_________________________________

CARSON, Circuit Judge.

_________________________________

A district court generally may not rely on facts emanating from outside of a

plaintiff’s well-pleaded complaint when it grants a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(6). But in this 42 U.S.C. § 1983 lawsuit, the district

court dismissed Plaintiff’s case after it granted qualified immunity based on

documents outside the complaint that Plaintiff neither attached, incorporated, nor

relied upon. Our jurisdiction arises under 28 U.S.C. § 1291. Because the district

court erred by relying on documents outside of the pleadings, and because we cannot

affirm its dismissal based on the documents properly before us, we reverse.

I.

Officers in and around Mesa County, Colorado were on the hunt for a stolen

Sno-Cat—a large, tracked machine, 8’ wide, 7’5” tall, and 16’3” long. They

suspected Plaintiff’s son had parked the Sno-Cat in Plaintiff’s garage, so they rang

her doorbell. Nobody answered, but at least one officer believed he observed

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someone inside the residence. Plaintiff’s property included both the garage and an

attached residence—but only the garage could have housed the Sno-Cat.

Two hours later, officers obtained a search warrant authorizing the search of

Plaintiff’s property for the Sno-Cat. The Special Weapons and Tactics (“SWAT”)

units of the Mesa County, Colorado Sheriff’s Office (“MCSO”) and Grand Junction

Police Department (“GJPD”) descended upon Plaintiff’s residence to execute the

warrant. Officers made no further attempt to establish contact with anyone who

might have been inside the residence when they returned with the warrant, but

instead fired or helped fire chemical munitions into the residence.1 Officers then

entered the residence and searched for the Sno-Cat. The search of the home turned

up no humans—only a dog.

The claims at issue in this case relate to damage caused by officers’ unlawful

forced entry into the residence, use of hazardous chemicals, and failure to close the

windows and secure the doors when they left—which resulted in further property

damage from looters. According to Plaintiff, officers caused over $50,000 in

damage.

Plaintiff sued over two dozen officers from multiple departments, asserting

Fourth and Fifth Amendment violations under 42 U.S.C. § 1983. The defendants

1

Officers did not knock and announce their presence before firing munitions

or entering the residence. So, other than the unverified, nonspecific perception of

one officer from two hours earlier, the officers lacked any evidence that a person

occupied the residence—and officers wholly lacked any evidence of imminent

danger.

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claimed qualified immunity and moved to dismiss Plaintiff’s complaint under Rule

12(b)(6). The district court granted the motions. In reaching its decision, the district

court considered documents outside the pleadings—the search warrant, supporting

affidavit, and GJPD’s one-page, unsigned after action report (“AAR”)—despite

Plaintiff’s objection that the district court could not consider outside documents

without converting the Rule 12(b)(6) motion to a motion for summary judgment and

allowing the parties to conduct discovery.

Plaintiff then filed a more detailed First Amended Complaint (“FAC”),

pleading only a Fourth Amendment § 1983 claim against seventeen MCSO officers

(“Defendants”). Defendants moved to dismiss the FAC under Rule 12(b)(6) and

asserted qualified immunity. The district court again granted qualified immunity and

dismissed Plaintiff’s claims. In its analysis, the district court considered the search

warrant, supporting affidavit, and AAR, specifically relying on facts within the AAR.

Plaintiff timely appealed the district court’s order dismissing her FAC.

On appeal, Plaintiff contends the district court erred in dismissing her FAC on

qualified immunity grounds. Defendants ask us to affirm the grant of qualified

immunity. Defendants appear to alternatively seek affirmance on the alternate

ground that Plaintiff failed to state a claim upon which relief may be granted because

she failed to adequately plead that each defendant personally participated in the

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alleged constitutional violations.2 We first address Defendants’ alternative argument.

We then address the qualified immunity issue.

II.

We review de novo the district court’s grant of a Rule 12(b)(6) motion to

dismiss, including a dismissal based on qualified immunity. Truman v. Orem City, 1

F.4th 1227, 1235 (10th Cir. 2021) (citing Wilson v. Montano, 715 F.3d 847, 852

(10th Cir. 2013)). Complaints must contain a “short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff

who fails to plead a plausible claim is subject to dismissal. See Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). We accept all well-pleaded factual allegations

as true and view them “in the light most favorable to the plaintiff.” Truman, 1 F.4th

at 1235 (citing Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007)).

III.

We first examine whether the district court erred in considering the search

warrant, the affidavit supporting the warrant, and the AAR without converting the

motion to dismiss into a motion for summary judgment. Generally, a court may

consider only the contents of a complaint when ruling on a motion to dismiss.

Goodwill Indus. of Cent. Okla., Inc. v. Philadelphia Indem. Ins. Co., 21 F.4th 704,

2

The headings in Defendants’ brief suggest Defendants only address personal

participation insofar as it relates to prong one of qualified immunity. But the textual

argument also advances the theory that we must affirm because Plaintiff failed to meet

the pleading requirements for a § 1983 claim because she didn’t plead personal

participation. Accordingly, we exercise our discretion to address the alternative

argument.

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709 (10th Cir. 2021) (citing Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1146

(10th Cir. 2013)). But courts may also consider documents that a plaintiff

(1) attaches to her complaint; (2) incorporates by reference in her complaint; or

(3) refers to in her complaint and that are central to her complaint and indisputably

authentic. See Berneike, 708 F.3d at 1146 (quoting GFF Corp. v. Associated

Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)).

When the district court considers documents outside the pleadings without a

valid exception, it must convert the motion to dismiss into a motion for summary

judgment. Fed. R. Civ. P. 12(d); Carter v. Stanton, 405 U.S. 669, 671 (1972). The

district court must inform the parties of its conversion and give the parties a

reasonable opportunity to accumulate and present all relevant evidence. Fed. R. Civ.

P. 12(d); Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991) (citing Ohio v.

Peterson, Lowry, Rall, Barber & Ross, 585 F.2d 454, 457 (10th Cir. 1978)). Failure

to do so constitutes reversible error unless we can affirm the district court’s dismissal

under Rule 12(b)(6), considering only the pleadings and any documents properly

before us. Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998) (citing

Miller, 948 F.2d at 1565–66).

Plaintiff did not attach documents to her FAC or expressly incorporate any

documents by reference. But the district court relied on facts within the AAR,

finding that Plaintiff referenced the AAR in Paragraph 56 of the FAC—even though

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Defendants did not ask the district court to consider the AAR.3 Plaintiff contends the

district court erred by relying on the AAR. We agree.

Defendants contend the district court appropriately considered the AAR

because Plaintiff attached the document to her briefing on Defendants’ motion to

dismiss her original complaint. But this argument misses the mark. Although

Plaintiff indeed attached the AAR to a document she filed earlier in the case, the

document was part of a prior round of motions to dismiss based on a prior pleading,

and in response to specific allegations from prior defendants. In that context,

Plaintiff attached the AAR to show its deficiencies and to bolster her asserted request

for discovery. But Plaintiff never relied on the AAR to establish her claims in any

document she filed opposing Defendants’ motion to dismiss her FAC.

Because the FAC does not reference the AAR, and because the AAR is not

central to any claim in the FAC, the district court could not properly consider the

AAR when ruling on a motion to dismiss the FAC.4 Instead, if the district court

3

Paragraph 56 of the FAC states, in full:

Reports provided by the Mesa County Sheriff’s Office and the Grand

Junction Police Department do not detail which of the Defendants

actually entered beyond the garage at the residence at 1867 S Deer Park

Circle, nor do they detail which Defendants launched chemical weapons

into the structure or otherwise physically damaged the property.

4

We do not reach the questions of whether the district court improperly

considered the warrant or the supporting affidavit, or whether a district court is

constrained by any limitations in considering such documents, because Plaintiff did

not brief these issues (or, for that matter, even specifically object to the district

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wished to consider the AAR, our precedents required it to convert the motion to

dismiss the FAC into a motion for summary judgment and allow any appropriate

discovery. Miller, 948 F.2d at 1565 (citing Peterson, 585 F.2d at 457). The district

court failed to do so and thus committed error.

IV.

Having concluded that the district court erred by considering the AAR, we

conduct a de novo review under Rule 12(b)(6). See Lowe, 143 F.3d at 1381 (citing

Miller, 948 F.2d at 1566). We disregard the AAR and look only to well-pleaded facts

and reasonable inferences from the FAC, the search warrant, and the affidavit to

determine whether Plaintiff has alleged a plausible claim for relief. See id. (citing

Miller, 948 F.2d at 1566).

We affirm the district court’s dismissal only if we can do so based on the facts

properly within our consideration. Id. (citing Miller, 948 F.2d at 1566). Otherwise,

we must reverse and remand for the district court to conduct further proceedings—

presumably so the district court may (if it chooses to consider documents outside the

pleadings) properly convert the motion to dismiss Plaintiff’s FAC into a motion for

summary judgment by providing notice of conversion and allowing for appropriate

discovery so both parties may present relevant evidence. See Brown v. Zavaras, 63

court’s consideration of the documents). See United States v. Egli, 13 F.4th 1139,

1149 (10th Cir. 2021) (applying waiver because party failed to raise issue on appeal).

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F.3d 967, 970, 972 (10th Cir. 1995) (reversing and remanding for the district court to

properly convert to a motion for summary judgment).

Defendants argue that Plaintiff did not state a plausible claim because she

failed to plead that each of them personally participated in the alleged constitutional

violation. Because the district court granted qualified immunity, it did not decide

this question. Section 1983 allows an individual to sue a government actor in his

individual capacity for violating her constitutional rights and recover money damages

from resulting injuries that the actor caused by his violation. 42 U.S.C. § 1983. A

plaintiff in a § 1983 action must allege that each defendant is subject to personal

liability based on his own actions. See Brown v. Montoya, 662 F.3d 1152, 1163–65

(10th Cir. 2011) (holding that a single generalized allegation of conduct was

insufficient to allege personal conduct by fifty-four defendants).

Defendants claim Plaintiff’s allegations are insufficient because she copied

and pasted identical allegations of conduct for each defendant. But Defendants point

to no rule—and we find none—stating that a party cannot sue multiple defendants for

the same wrongful conduct.5 And Plaintiff did not merely allege general conduct by

“Defendants.” Instead, she pleaded each defendant’s conduct in a separate

paragraph, alleging that each defendant acted by participating, entering and

5

We value individualized allegations in a § 1983 suit, particularly when each

defendant has different powers and duties. See Brown, 662 F.3d at 1165. But here,

all defendants served on the SWAT team. We can infer that all defendants had

identical or similar duties. So we do not find Plaintiff’s identical allegations

suspect—especially in the absence of discovery allowing her to more specifically

describe each defendant’s purported conduct.

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searching, and aiding and abetting. See Twitter, Inc. v. Taamneh, 598 U.S. 471, 489

(2023) (holding that aiding and abetting involves culpable conduct by the individual

and does not merely rely on the wrong acts of another). These allegations provided

each defendant with “fair notice as to the basis of the claims against him or her”

because they made clear “exactly who is alleged to have done what to whom.”

Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). So, limiting our review

to the documents properly before us, we conclude that Plaintiff plausibly alleged

individual action by each defendant.

V.

We next consider whether the facts properly before this Court allow us to

affirm the district court’s grant of qualified immunity. A defendant who asserts

qualified immunity in a § 1983 suit—including in a motion to dismiss—is

presumptively immune from suit. Truman, 1 F.4th at 1235 (quoting Est. of Smart by

Smart v. City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020)). A plaintiff can

overcome the presumption by showing that “(1) the defendant’s actions violated a

constitutional or statutory right, and (2) that right was clearly established at the time

of the defendant’s complained-of conduct.” Id. (citing Thomas v. Kaven, 765 F.3d

1183, 1194 (10th Cir. 2014)). On Rule 12(b)(6) review, when a complaint is

susceptible to multiple interpretations, we construe it liberally to allege a

constitutional violation. See Peterson v. Jensen, 371 F.3d 1199, 1202–03 (10th Cir.

2004) (citing Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th

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Cir. 1999) (viewing the complaint in the light most favorable to the non-moving

party in a Rule 12(b)(6) analysis)).

A.

To satisfy the first prong to overcome qualified immunity, Plaintiff alleges that

Defendants violated her constitutional rights under the Fourth Amendment. The

Fourth Amendment protects the right of the people to be secure in their houses

against unreasonable searches. U.S. CONST. amend. IV; accord Payton v. New York,

445 U.S. 573, 585–86 (1980) (quoting United States v. U.S. Dist. Ct., 407 U.S. 297,

313 (1972)) (“[P]hysical entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed.”). A search inside a home is

presumptively unreasonable apart from the authority of a search warrant or an

exception approved by the Supreme Court. United States v. Najar, 451 F.3d 710, 713

(10th Cir. 2006) (first quoting Payton, 445 U.S. at 586; and then quoting Illinois v.

McArthur, 531 U.S. 326, 330 (2001)).

Plaintiff argues Defendants’ search was unreasonable because they entered her

residence without authority. A search warrant must describe with particularity the

place to be searched and the item(s) to be seized. U.S. CONST. amend. IV. A valid

warrant authorizes law enforcement to search only at the stated place and only for the

stated item(s). See Mink v. Knox, 613 F.3d 995, 1010 (10th Cir. 2010) (applying the

particularity requirement to limit searches not only as to the location the warrant

specifies but also to the scope of the specified evidence). This means officers may

search at the listed location, but only in areas where the listed item could be. See,

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e.g., United States v. Naugle, 997 F.2d 819, 822 (10th Cir. 1993) (quoting United

States v. Ross, 456 U.S. 798, 820–21 (1982)) (concluding a warrant provided

authority to enter spaces within the search premises where officers might find the

specified items).

Here, the search warrant authorized a search of Plaintiff’s property for the

Sno-Cat. Under our precedent, this means Defendants could search any place on

Plaintiff’s property where they could find the Sno-Cat. Plaintiff pleaded the Sno-

Cat’s dimensions and stated that it could fit only inside the garage—not the

residence. The warrant’s description of the Sno-Cat as containing a toolbox on its

“right rear side” merely described the Sno-Cat and did not add a separate item for

which Defendants could search. So, the warrant did not authorize Defendants to

search for the Sno-Cat inside the residence itself (rather than the garage) because the

Sno-Cat obviously could not fit inside the residence.

Plaintiff also argues Defendants’ search was unreasonable because they used

excessive force. When a search warrant authorizes officers to search inside a home,

the officers must knock and “announce their presence and authority before entering.”

United States v. Moore, 91 F.3d 96, 98 (10th Cir. 1996) (citing Wilson v. Arkansas,

514 U.S. 927, 935–36 (1995)) (applying 18 U.S.C. § 3109 as a reasonableness

inquiry under the Fourth Amendment). Exigent circumstances excuse this knock-

and-announce requirement when officers reasonably believe an emergency exists. Id.

(quoting United States v. Maden, 64 F.3d 1505, 1509 (10th Cir. 1995)). The

emergency must be more than a general concern for safety. United States v. Stewart,

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867 F.2d 581, 585 (10th Cir. 1989). Officers’ knowledge of unknown occupants or

firearms in a house does not justify failure to knock and announce—nor does it

justify destroying property. See id.; Moore, 91 F.3d at 98–99.

Defendants did not knock and announce their presence or authority before

shooting chemical munitions and entering. Defendants rely on facts in the AAR to

demonstrate their mistaken belief that a dangerous individual with access to weapons

occupied the house. But we do not consider facts arising out of the AAR and no facts

within the FAC, warrant, or affidavit show exigent circumstances. No officer

identified any specific danger or occupant. Thus, the warrant did not expressly

authorize Defendants to forcibly enter Plaintiff’s home without knocking and

announcing or to shoot munitions that physically damaged her home.6

We conclude that under the facts properly within our consideration,

Defendants lacked authority for their search of the residence because they exceeded

the scope and authority of the warrant and lacked a valid exception.7 See Ross, 456

6

Plaintiff implies that Defendants should have used thermal imaging to learn

that the residence was unoccupied before assaulting it. But Defendants could not

have done so without authority to conduct a search inside the residence. See Kyllo v.

United States, 533 U.S. 27, 34 (2001) (thermal imaging generally constitutes a

search).

7

The district court mentioned the protective sweep warrant exception but did

not find that a protective sweep occurred. Defendants do not develop a protective-

sweep argument. See Lundstrom v. Romero, 616 F.3d 1108, 1128 (10th Cir. 2010)

(citing Najar, 451 F.3d at 717) (government actor bears the burden to show the

existence of an exception to the warrant requirement). So we do not consider

whether the protective sweep exception applies. See Garrett v. Selby Connor

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U.S. at 825 (quoting Mincey v. Arizona, 437 U.S. 385, 390 (1978)). Defendants

lacked justification for their forcible entry. Thus, Plaintiff sufficiently alleged

Defendants violated her Fourth Amendment rights based on Defendants’ entry into

her residence (apart from the garage)—both physically and by shooting chemical

munitions—and their use of excessive force.8

B.

We now examine the second prong of the qualified immunity analysis. We

conclude Defendants violated Plaintiff’s clearly established Fourth Amendment

rights.

“[A] right is clearly established when our precedent encompasses ‘“materially

similar conduct” or applies with “obvious clarity” to the conduct at issue.’” Sanchez

v. Guzman, 105 F.4th 1285, 1292–93 (10th Cir. 2024) (quoting Shepherd v. Robbins,

55 F.4th 810, 815 (10th Cir. 2022)). Precedent must place the “constitutional

question beyond debate,” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (quoting White

v. Pauly, 580 U.S. 73, 79 (2017)), and provide “fair warning to a defendant,”

Sanchez, 105 F.4th at 1293 (quoting Shepherd, 55 F.4th at 815). In the Fourth

Amendment context, we require a particularly high level of specificity and even more

Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (issues inadequately briefed are

waived).

8

We express no opinion on whether, after discovery and full summary

judgment briefing, Plaintiff may establish her claims in this case. We conclude only

that the FAC pleaded sufficient allegations to state a constitutional violation under

Fed. R. Civ. P. 12(b)(6).

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closely analogous facts than otherwise; thus we look for precedent that “‘squarely

governs’ the specific facts at issue.” Kisela, 584 U.S. at 104–05 (quoting Mullenix v.

Luna, 577 U.S. 7, 12–13, 18 (2015)).

At least two Tenth Circuit cases provided fair warning that the warrant did not

authorize Defendants’ search of the residence. In United States v. Angelos, 433 F.3d

738, 744 (10th Cir. 2006), the search warrant at issue authorized a search for drugs

and related items located in the trunk of a car and in a safe that the officers believed

was in a basement. The warrant stated the location of the search as the

“residence/premises” and listed its street address, without limitation. Id. at 745. We

held that the officers exceeded the scope of the warrant and acted unreasonably in

violation of the Fourth Amendment when they searched the residence in places other

than the basement. Id. at 745–46. In short, the broad search warrant did not

authorize officers to search spaces in which the item in question could not be located.

Thus, Angelos notified Defendants at a sufficient level of specificity that the search

warrant did not authorize Defendants’ search of the residence because the Sno-Cat

could not have been in the residence—indeed, officers believed the Sno-Cat was in

the garage, not in the residence.

Similarly, in Peterson, 371 F.3d at 1201, officers obtained a valid search

warrant authorizing them to search a particular residence for the belongings of two

individuals. Officers searched the specified residence even after learning that the two

individuals no longer resided there. Id. at 1202–03. In so doing, the officers violated

clearly established law—even though the warrant stated that it authorized search of

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the residence—because they should have known that searching the residence would

not fulfill the purpose of the warrant. Id. Thus, Peterson clearly notified Defendants

that they violated Plaintiff’s rights by searching for the Sno-Cat in her residence

because they should have known that this did not fulfill the purpose of the warrant.

And insofar as Plaintiff alleges that officers damaged her property, decades of

jurisprudence clearly establishes that Defendants violated the Fourth Amendment by

forcibly entering and destroying Plaintiff’s property without knocking and

announcing because the record reflects no exigencies. In United States v. Nielson,

415 F.3d 1195, 1197–98 (10th Cir. 2005), officers knew that the defendant had

previously possessed firearms in his home and feared for their safety because they

believed the residents in the home would arm themselves if the officers knocked and

because the defendant had “the potential for violence.” But this knowledge and

belief did not constitute reasonable suspicion that justified a no-knock entry, so when

the officers entered before knocking and announcing, they violated the Fourth

Amendment. Id. at 1201–02. And in Moore, 91 F.3d at 97–98, officers announced

their presence at virtually the same instant they used a battering ram to batter down

the door. The officers’ knowledge that the occupants were armed did not constitute

exigent circumstances justifying their immediate, destructive entry because the

officers failed to present facts showing specific fear for their safety. Id. at 98.

Here, Defendants knew even less than the Nielson officers—only that an

unidentified person had possibly occupied the house earlier in the day. And, like the

Moore officers, Defendants lacked any specific fear for their safety. These materially

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similar fact patterns show at a sufficient level of specificity that Defendants violated

Plaintiff’s clearly established Fourth Amendment rights by failing to knock and

announce their presence. Plaintiff, therefore, satisfies the second prong necessary to

overcome Defendants’ qualified immunity defense at the pleading stage.

Plaintiff’s FAC, along with the documents properly within our consideration,

show Plaintiff alleged a plausible § 1983 claim against each defendant and

overcomes the presumption of qualified immunity. So we cannot affirm the district

court’s finding of qualified immunity and dismissal of Plaintiff’s FAC. We reverse

and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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