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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[NOT FOR PUBLICATION]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.
___________

Vargas brought

In

1994, plaintiff/appellant

suit alleging

that,

Rodolfo A.

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,

VII of the

Civil Rights Act

seq.
___

Judgment was entered

bench

trial

and affirmed

entering judgment,

the

to 42

U.S.C.

grant of fees and costs.

prevailing

entitled

to

fees

of 1964, 42

for defendant after

by

this

court.

for

2000e-5(k).

of Title

2000e

et
__

a three day

Subsequent

to

the motion of

fees

Vargas'

and

costs,

appeals the

We affirm.

defendant

and

attorneys'

costs

in

only

civil

if

establish that

the plaintiff's suit

frivolous,

otherwise unreasonable."

or

U.S.C.

the district court granted

defendant/appellee

purusant

both in violation

rights

the

case

defendant

is

can

"was totally unfounded,

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


_______________________

and thus

in

the

best position

shifting is warranted, we

in a civil

Marie,
_____

rights case

38 F.3d

to

determine

Cir. 1991),

whether

review an award of fees

only for abuse

at 618.

Nonetheless,

concrete

findings of fact be

supply a

clear explanation

particular fee award."

139, 144 (1st

made and that

of

and costs

of discretion,

we do

the reasons

fee

Case
____

require "that

the court below

undergirding

Peckham v. Continental Cas. Ins. Co.,


_______
_________________________

895 F.2d 830, 842 (1st Cir. 1990).

that "an award

must not

Charves
_______

In addition, we have held

of attorney's fees to a

be oblivious of a

prevailing defendant

plaintiff's financial capacity."

v. Western Union Telegraph Co.,


____________________________

711 F.2d

462, 465

(1st Cir. 1983).

In

the instant

case,

the district

court conducted

careful

review

plaintiff and

factual

of all

the

treatment

put

then determined that there

basis for finding

discriminated

evidence

against

the

discriminatory

that the

the Plaintiff

Plaintiff

received

animus because

of his

forward

by

the

was "absolutely no

Defendant intentionally

or

to

was

find that

based

race."

any

on

some

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

pay the award.

present evidence of any

limited ability to

Nevertheless, plaintiff, despite his claim of

limited financial resources, steadfastedly refused to provide

the

court

with

any

documentation

as

to

his

financial

condition.

his

Having refused to meet the burden of establishing

financial

complain

condition,

plaintiff

about any failure to

that condition.

Finally, we

cannot

adjust the award

be

heard

to

in light of

See Case Marie, 38 F.3d at 618 n.2.


___ __________

find no support

claim of judicial bias.

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in the record

for Vargas'

The order of the district court is affirmed.*


________

____________________

* Appellee requests sanctions

against appellant, pursuant to

App. P. 38, for bringing a frivolous appeal.


38 requires "a separately filed motion."

Fed.

However, Fed. R. App.

Since no separate motion

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

______

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