                                                       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that this opinion should not be published and is not precedent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.
