concurring in the judgment:

I agree with the majority that we must dismiss this appeal since it is interlocutory *1512 and not within any exception to the final judgment rule of 28 U.S.C. § 1291 . I write separately to point out the narrow issue and analysis which I believe this decision should involve under the guidelines set forth by the Supreme Court in Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985).

I.

The narrow issue which we should decide today is whether an interlocutory appeal is available from an order denying, without prejudice, a motion based on qualified immunity. The collateral order doctrine, established in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), precludes review of interlocutory orders which do not “finally determine claims of right separable from, and collateral to, rights asserted in the action.” Id. at 546 , 69 S.Ct. at 1225 (emphasis added). The appeal before us is from just such an interlocutory order.

In their motion for summary judgment, the defendants argued that the plaintiffs failed to connect them to the allegedly unconstitutional acts. The district court denied the defendants’ motion as premature because “discovery has yet to be undertaken.” Under Mitchell , “the defendant is entitled to summary judgment if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant in fact committed [the allegedly unconstitutional] acts.” 472 U.S. at 526 , 105 S.Ct. at 2816 . If, after discovery, the plaintiffs have still failed to link a defendant to the violative acts, this defendant is entitled to summary judgment on any damages claims as a matter of law. Id. But prior to discovery, Mitchell precludes summary judgment, where, as here, the defendants fail to argue that the law was not clearly established. Id. See also Kraus v. County of Pierce, 793 F.2d 1105 (9th Cir.1986).

Id. at 1108 (quoting Mitchell, 472 U.S. at 526 , 105 S.Ct. at 2816 ) (emphasis added). Accord Kennedy v. City of Cleveland, 797 F.2d 297 , 299-300 & nn. 2-3 (6th Cir.1986). While the defendants made the proper showing before the district court, they moved for summary judgment premature ly — prior to discovery. The district court therefore properly denied the defendants’ motion.

The district court, however, stated that its denial of qualified immunity was “without prejudice to a renewed motion that addresses the pertinent issues.” The district court’s denial, therefore, was not a final determination of the defendants’ right to qualified immunity: (1) prior to discovery, the defendants remain free to argue that the law was not clearly established at the time of the alleged constitutional violations and (2) after discovery, the defendants can again move for summary judgment based on nonparticipation in the unconstitutional acts. See Mitchell, 472 U.S. at 526-28, 530, 535-36 , 105 S.Ct. at 2815-17, 2817, 2820-21 .

The district court’s order does not finally determine the defendants’ claim that Mitchell provides them with a “right not to stand trial” and, on this basis, I agree that we should dismiss this appeal. Cf. Mitchell, 472 U.S. at 527 , 105 S.Ct. at 2816 (order appealable only when there are “ ‘no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred’ ”) (quoting Abney v. United States, 431 U.S. 651, 659 , 97 S.Ct. 2034, 2040 , 52 L.Ed.2d 651 (1979)).

II.

The majority, however, bases its judgment on its conclusion that “the appeal does not present a purely legal issue, separable from the merits, as Mitchell requires.” Ante at 1511. Since the defendants argue that the plaintiffs have failed to connect them to the allegedly illegal acts, *1513 the majority says that “they present a disputed factual issue, inextricably bound up in the underlying claim.” Id. The majority misconstrues both the rule in Mitchell and the nature of the defendants’ claim.

The Mitcjiell Court held that an immediate appeal is available only from “a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law.” 472 U.S. at 530 , 105 S.Ct. at 2817 . Thus, any appeal must stand or fall depending on whether or not it properly raises an issue of law alone. But the Mitchell Court specifically rejected the notion that “any factual overlap between a collateral issue and the merits of the plaintiff’s claim is fatal to a claim of appealability.” Id. at 529 n. 10, 105 S.Ct. at 2817 n. 10. Moreover, the Court emphasized that “resolution of [appealable] legal issues will entail consideration of the factual allegations that make up the plaintiff’s claim for relief.” Id. at 528 , 105 S.Ct. at 2817 . The majority ignores this language from the Supreme Court’s opinion.

The defendants in this case have presented what is at least arguably an appealable legal issue, even if it may involve some consideration of the facts: Whether, assuming the complaint contains allegations of clearly established law, summary judgment is available for defendants whom the plaintiffs have utterly failed to connect to the acts alleged. Cf. Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir.1986). Therefore, I would base dismissal solely on the “without prejudice” nature of the district court’s order and not even reach the issue of whether the defendants presented an issue which is so “inextricably bound up in the underlying claim” as to be nonappealable under Mitchell . Such analysis is unnecessary.

III.

Whatever else it may be, a without prejudice denial of a defendant’s claim to qualified immunity is definitely not a final determination of the merits of the claim. Since such a denial does not finally determine any defendant’s right not to stand trial, I agree with the majority that the appeal must be dismissed.