of and opposition to the defendant’s motion” for summary judgment. Mem. Op. & Order Den. Mot. Summ. J., 4:09-CV-3264, at 4 (D. Neb. June 6, 2011). After examining all the evidence, the district court concluded “there are genuine issues of material fact with respect to the elements of the plaintiffs’ claims,” which preclude summary judgment at this stage. Id. It is this evidentiary sufficiency determination the defendant is now contesting on appeal. However, when an interlocutory appeal challenges the district court’s determination “the pretrial record sets forth a ‘genuine’ issue of fact for trial,” we lack jurisdiction to hear the appeal. Mahamed v. Anderson, 612 F.3d 1084, 1086 (8th Cir.2010); see also Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (<HOLDING>). Accordingly, I would dismiss the appeal for
holding that denial of counsel in section 1983 action is not immediately appealable holding order setting aside summary judgment for procedural irregularity was not immediately appealable holding determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualifiedimmunity case holding that a summary judgment order determining only a question of evidence sufficiency ie which facts a party may or may not be able to prove at trial is not immediately appealable holding that credibility determinations should not be resolved at the summary judgment stage