
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          February 1, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                         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-
