
    Alton James NICKLEBERRY, Plaintiff, v. Danneil JOHNSON, Etc.; et al. Defendants. Alton James Nickleberry, Plaintiff—Appellee, v. Nfn Bilinsky, Officer, Dallas County, Nfn Teel, Sergeant, Dallas County, Defendants—Appellants.
    No. 03-10579
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 2004.
    Alton James Nickleberry, pro se, Iowa Park, TX, for Plaintiff-Appellee.
    Dolena Tutt Westergard, District Attorney’s Office, Dallas, TX, for Defendants-Appellants.
    Before KING, Chief Judge, and DAVIS and BARKSDALE, Circuit Judges.
   PER CURIAM:

Officer Bilinsky and Sergeant Teel appeal from the denial of their qualified immunity defense raised in response to Alton Nickleberry’s, Texas prisoner # 1105513, civil rights complaint. The denial of a motion for summary judgment based on qualified immunity is immediately appeal-able only when based on an issue of law. Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir.1999). Orders determining “only a question of ‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial,” are not based on an issue of law and are not immediately appealable. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).

Issues of evidence sufficiency precluded the district court from making a determination on the qualified immunity defense at the summary judgment stage of the proceedings; its decision was thus not based on an issue of law and is not immediately appealable. See id. We therefore dismiss the appeal for lack of jurisdiction and deny all outstanding motions as moot.

APPEAL DISMISSED; ALL OUTSTANDING MOTIONS DENIED. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     