United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 27, 2004
Charles R. Fulbruge III
Clerk
No. 03-10579
Summary Calendar
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
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-1497
USDC No. 3:01-CV-2104
--------------------
Before KING, Chief Judge, and DAVIS and BARKSDALE, Circuit
Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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.
No. 03-10579
-2-
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 appealable 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 (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.