Andrew Verhines v. Shirley N. Weber

• Court: District Court, E.D. California
• Decided: September 18, 2025
• Docket: 1:24-cv-01111
• Status: Unknown

Opinion

1 2 3 4

7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

10 ANDREW VERHINES, Case No. 1:24-cv-01111-KES-EPG (PC)

11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 v. RECOMMENDING THAT (1) PLAINTIFF’S MOTION FOR LEAVE TO 13 SHIRLEY N. WEBER, FILE A SECOND AMENDED COMPLAINT BE GRANTED, IN PART, AND DENIED, 14 Defendant. IN PART; (2) DEFENDANT’S MOTION TO DISMISS THE FIRST AMENDED 15 COMPLAINT BE DENIED AS MOOT; AND (3) PLAINTIFF’S MOTION FOR 16 PRELIMINARY INJUNCTION BE DENIED AS MOOT 17 (ECF No. 40, 45, 54, 55) 18 OBJECTIONS, IF ANY, DUE WITHIN 19 THIRTY (30) DAYS 20 21 Plaintiff Andrew Verhines proceeds pro se and in forma pauperis in this civil action. 22 (ECF Nos. 1, 3). He claims that California’s filing fee structure for candidates seeking to run in 23 the primary for the office of House of Representatives in the United States Congress violates 24 the First and the Fourteenth Amendments. (ECF No. 37). 25 Now before the Court is Plaintiff’s motion for leave to file a second amended complaint 26 containing new factual allegations and a new claim. (ECF No. 54; see ECF No. 55). Also 27 pending are (1) Defendant’s motion to dismiss Plaintiff’s first amended complaint (ECF No. 28 40), and (2) Plaintiff’s motion for preliminary injunction regarding the allegations in his first 1 amended complaint (ECF No. 45). These pending motions have been referred by the assigned 2 District Judge and are ripe for consideration. (See ECF Nos. 41, 48, 58). 3 For the reasons given below, the Court will recommend as follows: (1) Plaintiff’s 4 motion for leave to file a second amended complaint be granted insofar as Plaintiff shall be 5 permitted to file the second amended complaint to proceed only on his First Amendment and 6 Equal Protection Clause claims regarding California’s filing-fee and signature-in-lieu 7 requirements based on the allegations in the second amended complaint, and Plaintiff’s motion 8 be denied insofar as Plaintiff shall not be permitted to proceed on his newly proposed claim 9 regarding his access to a voter guide; (2) Defendant’s motion to dismiss Plaintiff’s First 10 Amended Complaint be denied as moot; and (3) Plaintiff’s motion for preliminary injunction 11 regarding the allegations in his First Amended Complaint be denied as moot. 12 I. BACKGROUND 13 Plaintiff filed his original complaint on September 19, 2024, and the case proceeds on 14 his First Amendment and Equal Protection Clause claims, stemming from his allegations that 15 California’s filing fee structure to run for Congress violates his constitutional rights because he 16 cannot afford to pay the fee, and the other means of accessing the ballot—obtaining 17 signatures—is not a workable alternative. (ECF Nos. 1, 7, 37). 18 Plaintiff has amended his complaint once thus far. (ECF Nos. 30, 36, 37). After Plaintiff 19 filed his first amended complaint, the assigned District Judge denied Defendant’s pending 20 motion to dismiss the original complaint as moot. (ECF Nos. 37, 38). 21 Defendant thereafter moved to dismiss Plaintiff’s first amended complaint, which 22 motion has been referred to the undersigned. (ECF Nos. 40, 41, 43, 44). Among other things, 23 Defendant argues that Plaintiff has failed to provide sufficient factual allegations in support of 24 his claims. For example, Defendant contends that “Plaintiff’s amended complaint contains 25 minimal factual content,” otherwise contains “conclusory allegations,” and he provides no 26 “factual content to support the allegation that “State records reveal a 99.8% failure rate for 27 candidates attempting the signature-in-lieu process over recent election cycles.” (ECF No. 40, 28 p. 7) (internal quotation marks omitted). Further, Defendant asserts that “[f]actual content of a 1 reasonably diligent indigent congressional candidate would, at the very least, articulate what 2 they did to attempt to pay the filing fee or gather signatures in lieu of the filing fee.” (Id.). 3 Plaintiff filed a motion for preliminary injunction based on the allegations in the first 4 amended complaint, which has also been referred. (ECF Nos. 45, 48, 52, 53). 5 II. MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 6 On July 28, 2025, Plaintiff filed his motion for leave to file a second amended 7 complaint. (ECF No. 54). Plaintiff has also filed his proposed second amended complaint. 8 (ECF No. 55). The second amended complaint seeks to add (1) factual allegations in support of 9 Plaintiff’s existing claim; and (2) a new claim regarding his inability to afford access to a voter 10 guide. 11 As for new facts to support his existing claim, Plaintiff’s second amended complaint 12 includes the following: 13 [P]ublic records obtained by Plaintiff from the Secretary of State (Exhibit A) show that only one out of 506 congressional candidates over the past two 14 election cycles successfully obtained a full filing fee waiver through this method-a documented failure rate of 99.8%. 15 Plaintiff personally attempted to collect signatures in both 2022 and 2024. He 16 invested over 20 hours across multiple methods, including door-to-door 17 outreach, social media engagement, and public tabling. Despite his efforts, he collected only 40-60 valid signatures each cycle-rendering the waiver 18 inaccessible. 19 (ECF No. 55, p. 2). 20 As for his new claim, Plaintiff cites statutes that require the Secretary of State to print a 21 state voter guide and include certain information in it. (Id. at 3) (citing Cal. Elec. Code §§ 9082, 22 9084). He asserts that “the voter guide fee is calculated at approximately $25 per word, 23 resulting in a cost of $2,500-$5,000 for a typical 100- to 200-word candidate statement.” (Id. at 24 2). Characterizing this as a “critical platform for political communication,” Plaintiff argues that, 25 because he cannot afford the voter guide fee, his First and Fourteenth Amendment rights are 26 violated. (Id.). 27 Defendant has filed an opposition to Plaintiff’s motion for leave to file a second 28 amended complaint. (ECF No. 56). Defendant argues that his newly proposed claim is futile 1 because “Plaintiff’s only alleged injury is his inability to gain a place on the ballot as a 2 congressional candidate” and “[c]ongressional candidate statements are published in the county 3 voter information guides” rather than the state voter guide. (Id. at 2) (emphasis in original). 4 Defendant cites the relevant statutes for county voter guides, see, e.g., Cal. Elec. Code 5 § 13307.5, and argues that, even “[a]ssuming Plaintiff sought an order declaring 6 unconstitutional the correct statutes, Plaintiff would lack standing because his new claims are 7 not redressable by the Secretary.” (Id.). 8 Notably, Defendant’s opposition does not address Plaintiff’s new factual allegations 9 regarding the filing fee structure and signature-in-lieu requirements to access the ballot. 10 On August 11, 2025, Plaintiff filed an “opposition to Defendant’s motion to dismiss 11 second amended complaint.” (ECF No. 57) (capitalization omitted). However, there is no such 12 pending motion to dismiss; notably, Plaintiff has not yet been granted permission to file a 13 second amended complaint. The Court has considered this filing however to the extent that it 14 could be considered a reply in support of his motion for leave to file a second amended 15 complaint. 16 On September 12, 2025, the assigned District Judge referred Plaintiff’s motion for leave 17 to file a second amended complaint to the undersigned. (ECF No. 58). 18 III. LEGAL STANDARDS 19 Under Rule 15(a), a party may amend a pleading once as a matter of course within 20 twenty-one days of service, or if the pleading is one to which a response is required, twenty-one 21 days after service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1)(B). “In all 22 other cases, a party may amend its pleading only with the opposing party’s written consent or 23 the court’s leave.” Fed. R. Civ. P. 15(a)(2). 24 Granting or denying leave to amend is in the discretion of the Court. Swanson v. United 25 States Forest Service, 87 F.3d 339, 343 (9th Cir. 1996). Leave should be “freely give[n] . . . 26 when justice so requires,” Fed. R. Civ. P. 15(a)(2). “In exercising this discretion, a court must 27 be guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than 28 on the pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). 1 Consequently, the policy favoring the grant of leave to amend is applied with “extreme 2 liberality.” Id. (citation omitted). “Five factors are taken into account to assess the propriety of 3 a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of 4 the amendment, and whether the plaintiff has previously amended the complaint.” Desertrain v. 5 City of L.A., 754 F.3d 1147, 1154 (9th Cir. 2014) (quoting Johnson v. Buckley, 356 F.3d 1067, 6 1077 (9th Cir.2004)). 7 “[I]t is the consideration of prejudice to the opposing party that carries the greatest 8 weight.” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per 9 curiam). While the Ninth Circuit is “very cautious in approving a district court’s decision to 10 deny pro se litigants leave to amend” it has also concluded that “[a] district court . . . does not 11 abuse its discretion in denying leave to amend where amendment would be futile.” Flowers v. 12 First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002). 13 III. ANALYSIS 14 With these standards in mind, the Court will recommend that Plaintiff be granted leave 15 to file a second amended complaint to add factual allegations regarding his existing claim that 16 California’s filing fee requirement—and signature-in-lieu alternative—violate his First and 17 Fourteenth Amendment rights. (See ECF No. 55, p. 3 – listed as Count 1). 18 Notably, Defendant’s pending motion to dismiss Plaintiff’s First Amended Complaint 19 argues, in part, that Plaintiff’s First Amended Complaint lacks sufficient factual allegations 20 regarding the failure rate for candidates attempting the signature-in-lieu process , as well as 21 allegations concerning any attempts to pay the filing fee or gather signatures in lieu of the filing 22 fee. (ECF No. 40, p. 7). Here, Plaintiff’s proposed second amended complaint adds factual 23 allegations relevant to these issues, including: 24 [P]ublic records obtained by Plaintiff from the Secretary of State (Exhibit A)1 show that only one out of 506 congressional candidates over the past two 25 election cycles successfully obtained a full filing fee waiver through this method-a documented failure rate of 99.8%. 26 Plaintiff personally attempted to collect signatures in both 2022 and 2024. He 27

28 1 Plaintiff attaches the referenced records to his proposed second amended complaint. invested over 20 hours across multiple methods, including door-to-door 1 outreach, social media engagement, and public tabling. Despite his efforts, he 2 collected only 40-60 valid signatures each cycle-rendering the waiver inaccessible. 3 (ECF No. 55, p. 2). 4 In light of Defendant’s argument in its motion to dismiss Plaintiff’s First Amended 5 Complaint, the Court finds that Plaintiff should be permitted to amend his complaint to include 6 these allegations, which are relevant to his First Amendment and Equal Protection Clause 7 claims challenging California’s filing-fee and signature-in-lieu requirements. 8 There is no indication of bad faith or undue delay in adding these factual allegations, 9 and it is still early in the litigation. Moreover, some of the information referenced in the 10 proposed second amended complaint appears to have been obtained in June 2025 of this year 11 and thus would have been unavailable to Plaintiff before. Additionally, Defendant has not 12 argued that amendment would be prejudicial, nor does the Court find prejudice based on the 13 circumstances before it. Further, amendment does not appear to be futile. Lastly, while Plaintiff 14 has previously amended his complaint, the Court does not find that this prior amendment 15 outweighs the other considerations. 16 However, the Court does not recommend allowing Plaintiff to proceed on the new claim 17 that is contained in the proposed Second Amended Complaint. In support of this new claim, 18 Plaintiff cites statutes that require the Secretary of State to print a state voter guide and include 19 certain information in it. (ECF No. 55, p. 3) (citing Cal. Elec. Code §§ 9082, 9084). Notably, 20 under § 9084, the state voter guide shall contain, 21 [i]f the ballot contains an election for the office of United States Senator, 22 information on candidates for United States Senator. A candidate for United States Senator may purchase the space to place a statement in the state voter 23 information guide that does not exceed 250 words. The statement shall not make 24 any reference to any opponent of the candidate. The statement shall be submitted in accordance with timeframes and procedures set forth by the 25 Secretary of State for the preparation of the state voter information guide. 26 Cal. Elec. Code § 9084(i) (emphasis added). 27 Plaintiff argues that this statutory scheme “imposes an additional unconstitutional 28 wealth-based barrier by requiring congressional candidates to pay thousands of dollars to 1 appear in the official statewide voter information guide.” (ECF No. 54, p. 2). 2 Defendant argues that leave to amend would be futile because this statutory scheme 3 does not apply to Plaintiff and he otherwise lacks standing. (ECF No. 56, pp. 2-3). The Court 4 agrees. 5 Plaintiff has framed his challenges thus far based on his being “a qualified candidate for 6 the U.S. House of Representatives in California’s 21st Congressional District.” (ECF No. 37, p. 7 2). As Defendant notes, a different statutory scheme, where local officials are involved rather 8 than the Secretary of State governs county voter guides for such candidates. (ECF No. 56, pp. 9 2-3). 10 Specifically, § 13307.5 provides as follows: 11 A candidate for United States Representative may purchase the space to place a statement in the voter information portion of the county voter information guide 12 that does not exceed 250 words. The statement shall not refer to any opponent of the candidate. The statement shall be submitted in accordance with the 13 timeframes and procedures set forth in this code for the preparation of the voter 14 information portion of the county voter information guide. 15 Cal. Elec. Code § 13307.5 (emphasis added). 16 As for the fee requirements, “if a candidate alleges to be indigent and unable to pay in 17 advance the requisite fee for submitting a candidate statement, the candidate shall submit to the 18 local agency a statement of financial worth to be used in determining whether or not he or she 19 is eligible to submit a candidate statement without payment of the fee in advance.” Cal. Elec. 20 Code § 13309(a) (emphasis added). And “[i]f the local agency determines that the candidate is 21 indigent, the local agency shall print and mail the statement.” Cal. Elec. Code § 13309(e). 22 Simply put, Plaintiff’s inability to access the county voter guide would not be an injury 23 caused by the Secretary of State; rather, a local agency would be responsible. Plaintiff has not 24 proposed to add any local agency as a defendant to this case, nor has he alleged facts applicable 25 under the relevant statutory scheme. Thus, Plaintiff fails to establish standing to pursue his 26 proposed new claim. See United States v. Texas, 599 U.S. 670, 676 (2023) (“To establish 27 standing, a plaintiff must show an injury in fact caused by the defendant and redressable by a 28 court order.”). In conclusion, the Court will recommend that Plaintiff’s motion for leave to file 1 a second amended complaint be granted insofar as Plaintiff shall be permitted to file the second 2 amended complaint to proceed only on his First Amendment and Equal Protection Clause 3 claims regarding California’s filing-fee and signature-in-lieu requirements based on the 4 allegations in the second amended complaint, and Plaintiff’s motion be denied insofar as 5 Plaintiff shall not be permitted to proceed on his newly proposed claim regarding his access to 6 a voter guide. 7 IV. MOTION TO DISMISS AND MOTION FOR PRELIMINARY 8 INJUNCTION 9 Because the Court is recommending that Plaintiff be granted leave to amend to add new 10 relevant factual allegations in support of his existing claim, it will recommend that Defendant’s 11 motion to dismiss the First Amended Complaint and Plaintiff’s motion for preliminary 12 injunction regarding the First Amended Complaint be denied as moot. 13 As for Defendant’s motion to dismiss, because an “amended pleading supersedes the 14 original pleading,” with the latter being functionally non-existent, the motion to dismiss the 15 first amended complaint is moot. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), as 16 amended (May 22, 1992). Similarly, Plaintiff’s motion for preliminary injunction, which is 17 based on the allegations in the first amended complaint, should be denied as moot. See O. L. v. 18 City of El Monte, No. 220CV00797RGKJDE, 2020 WL 7264545, at *2 (C.D. Cal. Mar. 20, 19 2020) (“Separately, Plaintiff filed a Motion for a Preliminary Injunction expressly based upon 20 the then-operative FAC. See Dkt. 33 (Motion for Preliminary Injunction) at 2. By filing the 21 SAC, Plaintiff has superseded the FAC, which effectively renders the Motion for Preliminary 22 Injunction moot, which the Court interprets as a tacit withdrawal of the Motion for Preliminary 23 Injunction, without prejudice to Plaintiff refiling . . .”). 24 V. CONCLUSION AND RECOMMENDATIONS 25 For the above reasons, IT IS RECOMMENDED as follows: 26 1. Plaintiff’s motion for leave to file a second amended complaint be granted insofar as 27 Plaintiff shall be permitted to file the second amended complaint to proceed only on his 28 First Amendment and Equal Protection Clause claims regarding California’s filing-fee 1 and signature-in-lieu requirements based on the allegations in the second amended 2 complaint, and Plaintiff’s motion be denied insofar as Plaintiff shall not be permitted to 3 proceed on his newly proposed claim regarding his access to a voter guide. (ECF No. 4 54). 5 2. This case proceed on the second amended complaint only on Plaintiff’s First 6 Amendment and Equal Protection Clause claims regarding California’s filing-fee and 7 signature-in-lieu requirements. 8 3. The Clerk of Court be directed to file Plaintiff’s second amended complaint on the 9 docket upon entry of the District Judge’s final order. (ECF No. 55). 10 4. Defendant’s motion to dismiss the first amended complaint be denied as moot. (ECF 11 No. 40). 12 5. Plaintiff’s motion for a preliminary injunction be denied as moot. (ECF No. 45). 13 6. Defendant be directed to respond to the second amended complaint (once filed) within 14 the time provided under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 15(a). 15 These findings and recommendations are submitted to the United States district judge 16 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty 17 (30) days after being served with these findings and recommendations, any party may file 18 written objections with the Court. Such a document should be captioned “Objections to 19 Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 20 served and filed within fourteen (14) days after service of the objections. Any objections shall 21 be limited to no more than fifteen (15) pages, including exhibits. 22 \\\ 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 1 The parties are advised that failure to file objections within the specified time may 2 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 3 || 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. 6 || Dated: _ September 18, 2025 [see hey 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10