Vargas v. Kenney ( 1996 )

USCA1 Opinion

          February 1, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







                                 ____________________





        No. 95-1852



                                  RODOLFO A. VARGAS,



                                Plaintiff, Appellant,



                                          v.



             TIMOTHY R. E. KENNEY, IN HIS OFFICIAL CAPACITY, AS DIRECTOR

             OF THE RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT,



                                 Defendant, Appellee.





                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND





                     [Hon. Ernest C. Torres, U.S. District Judge]
___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
___________

                          Boudin and Stahl, Circuit Judges.
______________



                                 ____________________



            Rodolfo A. Vargas on brief pro se.
_________________

            Michael K. Marran on brief for appellee.
_________________





                                 ____________________





                                 ____________________

























                 Per  Curiam.   In  1994, plaintiff/appellant  Rodolfo A.
___________



            Vargas brought  suit alleging  that,  while employed  at  the



            Rhode Island Department of Environmental Management [DEM], he



            had been subject to racial harassment and had been terminated



            because of  his national origin,  both in violation  of Title



            VII of the  Civil Rights Act  of 1964, 42  U.S.C.   2000e  et
__



            seq.   Judgment was entered  for defendant after  a three day
___



            bench  trial  and affirmed  by  this  court.   Subsequent  to



            entering judgment,  the district court granted  the motion of



            the   defendant/appellee  for  attorneys'   fees  and  costs,



            purusant  to 42  U.S.C.    2000e-5(k).   Vargas'  appeals the



            grant of fees and costs.  We affirm.



                 A  prevailing  defendant  in  a  civil  rights  case  is



            entitled  to  fees  and  costs  only  if  the  defendant  can



            establish that  the plaintiff's suit  "was totally unfounded,



            frivolous,  or  otherwise unreasonable."    Case Marie  Hogar
_________________



            Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir.
________________    _____________



            1994) (citing cases).  Given that the district court is "most



            intimately familiar with the case and its nuances," Foster v.
______



            Mydas Associates,  Inc., 943 F.2d  139, 144 (1st  Cir. 1991),
_______________________



            and thus  in  the  best position  to  determine  whether  fee



            shifting is warranted, we  review an award of fees  and costs



            in a civil  rights case  only for abuse  of discretion,  Case
____



            Marie,  38 F.3d  at 618.   Nonetheless,  we do  require "that
_____



            concrete  findings of fact be  made and that  the court below



            supply a  clear explanation  of  the reasons  undergirding  a



            particular fee award."  Peckham v. Continental Cas. Ins. Co.,
_______    _________________________



































            895 F.2d 830, 842 (1st Cir. 1990).  In addition, we have held



            that "an award  of attorney's fees to a  prevailing defendant



            must not  be oblivious of a  plaintiff's financial capacity."



            Charves  v. Western  Union Telegraph Co.,  711 F.2d  462, 465
_______     ____________________________



            (1st Cir. 1983).



                 In  the instant  case,  the district  court conducted  a



            careful  review  of all  the  evidence  put  forward  by  the



            plaintiff and  then determined that there  was "absolutely no



            factual  basis for finding  that the  Defendant intentionally



            discriminated  against  the Plaintiff  or  to  find that  any



            treatment  the   Plaintiff  received   was   based  on   some



            discriminatory  animus because  of his  race."   We find  the



            reasons given by the district court for its fee shifting both



            clear and  firmly supported by  the record.   Moreover, after



            making its award, the court afforded plaintiff three separate



            opportunities to  present evidence of any  limited ability to



            pay the award.  Nevertheless, plaintiff, despite his claim of



            limited financial resources, steadfastedly refused to provide



            the  court  with  any   documentation  as  to  his  financial



            condition.  Having refused to meet the burden of establishing



            his  financial  condition,  plaintiff   cannot  be  heard  to



            complain  about any failure to  adjust the award  in light of



            that condition.  See Case Marie, 38 F.3d at 618 n.2.
___ __________



                 Finally, we  find no support  in the record  for Vargas'



            claim of judicial bias.







                                         -3-



























                 The order of the district court is affirmed.*
________


























































































____________________



        * Appellee requests sanctions  against appellant, pursuant to  Fed. R.

        App. P. 38, for bringing a frivolous appeal.  However, Fed. R. App. P.

        38 requires "a separately filed motion."  Since no separate motion was

        filed in this case, the request for sanctions is denied.
______



                                         -4-