USCA1 Opinion
February 1, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Rodolfo A. Vargas on brief pro se.
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Michael K. Marran on brief for appellee.
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Per Curiam. In 1994, plaintiff/appellant Rodolfo A.
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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
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seq. Judgment was entered for defendant after a three day
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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
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Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir.
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1994) (citing cases). Given that the district court is "most
intimately familiar with the case and its nuances," Foster v.
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Mydas Associates, Inc., 943 F.2d 139, 144 (1st Cir. 1991),
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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
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Marie, 38 F.3d at 618. Nonetheless, we do require "that
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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.,
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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
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(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.
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Finally, we find no support in the record for Vargas'
claim of judicial bias.
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The order of the district court is affirmed.*
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* 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.
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