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UNITED STATES DISTRICT COURT DISTRICT OF MAINE ) ) ) ) ) ) ) ) ) ) ) ) )

STEFAN GOMES and PARIS MINOR, Plaintiffs

Docket no. 02-CV-147-B-W

TRUSTEES and PRESIDENT of the UNIVERSITY OF MAINE, Defendants

ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE ON DEFENDANTS' MOTION FOR AWARD OF ATTORNEYS' FEES

On August 22, 2003, the United States Magistrate Judge filed her Recommended Decision on Defendants' Motion for Award of Attorney's Fees. Although neither party filed an objection to the Recommended Decision, this court retains the authority to perform its own review. The court has made an independent review of the facts and does not accept the entire recitation of facts set forth in the Recommended Decision. The Court nevertheless concurs with the Recommended Decision of the Magistrate Judge, since under the undisputed facts, the defendants have failed to establish they are "the prevailing party" within the meaning of 42 U.S.C. Section 1988(b). Buckhannon Bd. & Care Home v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 604, 121 S. Ct. 1825, 1840, 149 L. Ed. 2d 855, 862 (2001). The defendants have failed to demonstrate that they have worked "an autarkic material alteration in the legal relations of the

parties". Maine School Admin. Dist. No. 35 v. R., 321 F.3d 9, 16 (1st Cir. 2003). Moreover, they have failed to demonstrate that the plaintiffs' suit was "vexatious, frivolous, or brought to harass or embarrass the defendant." Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983); Casa Marie Hogar Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st Cir. 1994)(in order for a prevailing defendant to recover attorney's fees, the defendant must "establish that the plaintiffs' suit was totally unfounded, frivolous, or otherwise unreasonable"). The Defendants' Motion for Attorney's Fees is DENIED .

SO ORDERED . DATED THIS 7 TH DAY OF OCTOBER , 2003

/S/ JOHN A. WOODCOCK, JR. JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

Plaintiff ----------------------STEFAN GOMES represented by FREDERICK F. COSTLOW RICHARDSON, WHITMAN, LARGE & BADGER P.O. BOX 2429 ONE MERCHANTS PLAZA, SUITE 603 BANGOR, ME 04402-2429 (207) 945-5900 Email: fcostlow@rwlb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED HARRISON L. RICHARDSON RICHARDSON, WHITMAN, LARGE & BADGER 465 CONGRESS STREET P.O. BOX 9545

PORTLAND, ME 04112-9545 (207) 774-7474 Email: hrichardson@rwlb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED PARIS MINOR represented by FREDERICK F. COSTLOW (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED HARRISON L. RICHARDSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED V. Defendant ----------------------TRUSTEES OF THE UNIVERSITY OF MAINE

represented by PAUL W. CHAIKEN RUDMAN & WINCHELL 84 HARLOW STREET P.O. BOX 1401 BANGOR, ME 04401 (207) 947-4501 Email: pchaiken@rudmanwinchell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED BRENT A. SINGER RUDMAN & WINCHELL 84 HARLOW STREET P.O. BOX 1401 BANGOR, ME 04401 (207) 947-4501 Email: bsinger@rudmanwinchell.com ATTORNEY TO BE NOTICED TIMOTHY A. PEASE RUDMAN & WINCHELL

84 HARLOW STREET P.O. BOX 1401 BANGOR, ME 04401 (207) 947-4501 Email: tpease@rudmanwinchell.com ATTORNEY TO BE NOTICED

UNIVERSITY OF MAINE

represented by BRENT A. SINGER (See above for address) ATTORNEY TO BE NOTICED TIMOTHY A. PEASE (See above for address) ATTORNEY TO BE NOTICED PAUL W. CHAIKEN (See above for address) ATTORNEY TO BE NOTICED

PETER S HOFF, Individually and in his official capacity as President of the University of Maine

represented by

BRENT A. SINGER (See above for address) ATTORNEY TO BE NOTICED

TIMOTHY A. PEASE (See above for address) ATTORNEY TO BE NOTICED PAUL W. CHAIKEN (See above for address) ATTORNEY TO BE NOTICED ELIZABETH J ALLAN, Individually and in her official capacity as Chair of the Student Conduct Code Committee represented by

BRENT A. SINGER (See above for address) ATTORNEY TO BE NOTICED

TIMOTHY A. PEASE (See above for address) ATTORNEY TO BE NOTICED PAUL W. CHAIKEN (See above for address) ATTORNEY TO BE NOTICED DAVID FIACCO, Individually and in his official capacity as Judicial Officer represented by BRENT A. SINGER (See above for address) ATTORNEY TO BE NOTICED TIMOTHY A. PEASE (See above for address) ATTORNEY TO BE NOTICED PAUL W. CHAIKEN (See above for address) ATTORNEY TO BE NOTICED



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