Hill v. United States of America

1
25-cv-0914-AGS-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Marcell HILL,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
Case No.: 25-cv-0914-AGS-JLB
ORDER GRANTING MOTION TO
DISMISS (ECF 11)
This case involves allegations of an unspeakable atrocity: a 1999 gang rape and
torture committed by U.S. Marines. The victim purportedly suppressed this incident until
2020. Since then, she claims that various government agents and entities have conspired to
discredit her, to thwart her quest for justice, and to protect her assailants.
These sickening accusations ultimately have only an incidental bearing on the legal
issues currently before the Court. Years ago, the plaintiff brought a nearly identical lawsuit
in Florida federal court, and that case was dismissed. The defense now moves to dismiss
this case, too, as barred by both res judicata and the statute of limitations.
BACKGROUND
In 2022, plaintiff Marcell Hill sued the United States government in federal court
for the Middle District of Florida, alleging various violations under the Federal Tort Claims
Act (FTCA). See Hill v. United States, No. 8:22-cv-1854-WFJ-MRM (M.D. Fla. 2022).
She brought claims of conspiracy, negligence, and intentional infliction of emotion distress
involving her accused assailants and various government officials and entities involved in
the investigation. Hill v. United States, No. 8:22-cv-1854-WFJ-MRM, 2023 WL 2864509,
at *3–*4 	(M.D. Fla. 2023). The 	Florida 	trial 	court 	dismissed 	the second 	amended
complaint—including all 12 counts—“with prejudice.” Hill, 2023 WL 2864509, at *4,
*11. On appeal, the Eleventh Circuit remanded “with instructions that the district court
dismiss Counts I and II without prejudice,” but otherwise left the lower court’s ruling
Case 3:25-cv-00914-AGS-JLB Document 18 Filed 03/20/26 PageID.<pageID>
Page 1 of 6

2
25-cv-0914-AGS-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
undisturbed. Hill v. United States, No. 23-11970, 2024 WL 1326791, at *1 (11th Cir.
Mar. 28, 2024) (emphasis added).
Defendants now move to dismiss the current case on several grounds, including that
it is barred by “the doctrine of res judicata” and “by the FTCA’s statute of limitations.”
(ECF 11, at 5, 8.)
DISCUSSION
A. 	Res Judicata (Counts 3–18)
The Court confines its res judicata analysis to counts 3 through 18 of the current
complaint. Counts 1 and 2 are admittedly identical in both lawsuits. (ECF 8, at 6
(acknowledging the complaint “incorporates two [] counts from a prior, related action”));
see also Hill, 8:22-cv-1854-WFJ-MRM, ECF 22, at 17–19. But those first two counts were
ultimately dismissed without prejudice. And a “dismissal without prejudice is not an
adjudication on the merits and does not have a res judicata effect.” Continental Ins. v.
N.A.D., Inc., 16 F. App’x 659, 661 (9th Cir. 2001).
Res judicata, or claim preclusion, applies when there is “(1) an identity of claims;
(2) a final judgment on the merits; and (3) identity or privity between parties.” Garity v.
APWU Nat’l Labor Org., 828 F.3d 848, 855 (9th Cir. 2016). “The party asserting a claim
preclusion argument ‘must carry the burden of establishing all necessary elements.’” Id.
(quoting Taylor v. Sturgell, 553 U.S. 880, 907 (2008)).
1. Identity of Claims
In assessing the identity of claims, courts consider four factors, addressed below.
“These criteria are not applied mechanistically.” Howard v. City of Coos Bay, 871 F.3d
1032, 1039 (9th Cir. 2017). First, courts evaluate “whether rights or interests established
in the prior judgment would be destroyed or impaired by prosecution of the second action.”
Id. The government has an interest in “the conclusive resolution of disputes.” Tahoe-Sierra
Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). This
interest would be impaired by forcing it to defend claims that it already litigated once
before to a dismissal with prejudice.
Case 3:25-cv-00914-AGS-JLB Document 18 Filed 03/20/26 PageID.<pageID>
Page 2 of 6

3
25-cv-0914-AGS-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Second, we consider “whether substantially the same evidence is presented in the
two actions.” Howard, 871 F.3d at 1039. Because neither lawsuit has (yet) cleared the
motion-to-dismiss stage, no formal evidence has been submitted. But a comparison of the
two operative complaints suggests that the evidence would likely be much the same.
Admittedly, Hill added more detail and new theories to her current pleading, such as NCIS
Agent Spodarek’s alleged “conflict of interest.” (See ECF 8, at 34.) Yet the second lawsuit
largely echoes the first. For example, in both cases, Hill criticizes Agent Spodarek for
failing to identify two of her assailants, given the agent’s access to investigative resources.
(Compare ECF 8, at 15–16 (“Despite having access to official military records, Agent
Spodarek failed to act on this information” in investigating “two of Plaintiff Hill’s
assailants.”), with Hill, No. 8:22-cv-1854-WFJ-MRM, ECF 22, at 9 (“Agent Spodarek was
. . . unable to identify the remaining two suspects” and made “no progress in the
investigation,” despite “specific details provided by the Plaintiff combined with NCIS
access to military records and multiple investigative interviews conducted over the
previous 8 months.”).) And, according to both complaints, Hill was forced to hunt down
these suspects’ identities herself. (Compare ECF 8, at 15–16 (“Plaintiff Hill [had] to
uncover their identities on her own through memory and publicly available sources.”), with
Hill, No. 8:22-cv-1854-WFJ-MRM, ECF 22, at 9 (“Plaintiff diligently worked all weekend
to uncover the identity of the remaining two suspects herself.”).)
The third identity-of-claims factor is “whether the two suits involve infringement of
the same right.” Howard, 871 F.3d at 1039. In both proceedings, Hill alleged the same sorts
of FTCA violations: negligence and similar torts. (Compare ECF 8, at 2 (alleging
“negligent and wrongful acts and omissions of agents and employees of the United States
Government”), with Hill, No. 8:22-cv-1854-WFJ-MRM, ECF 22, at 1 (alleging “multiple
negligent and wrongful acts and omissions of multiple agents and employees of the
U.S. Government”).) This factor, too, points toward an identity of claims.
Finally, the Court must determine “whether the two suits arise out of the same
transactional nucleus of facts.” Howard, 871 F.3d at 1039. This “fourth factor is the most
Case 3:25-cv-00914-AGS-JLB Document 18 Filed 03/20/26 PageID.<pageID>
Page 3 of 6

4
25-cv-0914-AGS-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
important.” Id. (cleaned up). In fact, the Ninth Circuit often deems “the common-nucleus
criterion to be outcome determinative.” Media Rts. Techs., Inc. v. Microsoft Corp.,
922 F.3d 1014, 1029 (9th Cir. 2019). Hill insists that counts 3 through 18 arise from new
“facts” or otherwise present “new theories.” (ECF 14, at 13–18.) But, at bottom, both cases
center on allegations of a horrific sexual assault in 1999. According to both operative
complaints, 	she 	was 	“drugged,” 	“gang 	raped,” 	“photographed,” 	and 	subjected 	to
“psychological[]” torment using “military” “tactics.” (ECF 8, at 11; Hill, 8:22-cv-1854-
WFJ-MRM, ECF 22, at 4.) The two cases’ ancillary facts—especially regarding the
subsequent investigation and Hill’s frustrations in seeking justice—share much in common
as well. But the central “nucleus of facts” in both lawsuits is this nightmarish alleged crime.
Because all four of these factors cut in favor of res judicata (especially the all-
important common-nucleus consideration), the Court finds that there is an identity of
claims between counts 3 through 18 and the prior suit.
2. Final Judgment on the Merits and Identity of Parties
As to counts 3 through 18, the last two res judicata requirements are easily satisfied.
Those counts correspond to the claims in the prior lawsuit that were dismissed “with
prejudice,” which “is considered a final judgment on the merits.” See Nnachi v. City of San
Francisco, No. C 10–00714 MEJ, 2010 WL 3398545, at *5 (N.D. Cal. Aug. 27, 2010).
And both this case and the Florida suit involve the exact same parties.
So, res judicata precludes further litigation over counts 3 through 18.
B. 	Statute of Limitations (Counts 1 and 2)
Although res judicata does not apply to counts 1 and 2, those counts—and all the
claims in this FTCA lawsuit—must be dismissed as untimely. An FTCA claim is “forever
barred” unless it is “presented in writing to the appropriate Federal agency within two
years” of the claim’s accrual and “unless action is begun within six months after the . . .
final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b).
The latter six-month limitations period is fatal to Hill’s lawsuit.
Case 3:25-cv-00914-AGS-JLB Document 18 Filed 03/20/26 PageID.<pageID>
Page 4 of 6

5
25-cv-0914-AGS-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Hill asserts that the final denial of her administrative claim was on “February 24,
2022,” and the agency notified her “of a six-month deadline to file in federal court, expiring
August 24, 2022.” (See ECF 8, at 5.) Though she brought her Florida lawsuit within that
deadline, the present “action” was not commenced until April 17, 2025—more than two-
and-a-half years after the deadline. (See ECF 1; ECF 8, at 5.)
While Hill’s Florida lawsuit was timely, the dismissal of its first two counts “without
prejudice left [plaintiff] in the same position as if the first suit had never been filed.” See
Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995); see also Humphreys v.
United States, 272 F.2d 411 (9th Cir. 1959) (“[A] suit dismissed without prejudice . . .
leaves the situation the same as if the suit had never been brought in the first place.”). So,
her second action, “filed more than six months after the [agency] mailed its final notice
denying [her] claim, . . . is time barred under the plain language of § 2401(b).” See Lambert,
44 F.3d at 298; see also Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994)
(holding that FTCA plaintiffs could not “relate back” their late-filed “second complaint”
to their timely “first complaint” because “a separately filed claim, as opposed to an
amendment or a supplementary pleading, does not relate back to a previously filed claim”).
Nor does it appear that any tolling could stave off the statute of limitations. Despite
having the opportunity to assert tolling theories, Hill has not done so. And there is no
suggestion that plaintiff was “induced or tricked by [her] adversary’s misconduct into
allowing the filing deadline to pass,” nor any other basis for equitable tolling. See Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96 (1990).
Because this FTCA action is untimely, all the claims—including counts 1 and 2—
must be dismissed.
C. 	Leave to Amend
When a pleading “can possibly be cured by additional factual allegations,” courts
should grant leave to amend. Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir.
2013). “A district court abuses its discretion by denying leave to amend unless amendment
would be futile or the plaintiff has failed to cure the complaint’s deficiencies despite
Case 3:25-cv-00914-AGS-JLB Document 18 Filed 03/20/26 PageID.<pageID>
Page 5 of 6

6
25-cv-0914-AGS-JLB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
repeated opportunities.’” Garmon v. County of Los Angeles, 828 F.3d 837, 842 (9th Cir.
2016). Amendment is futile as to counts 3 through 18, as Hill has already litigated those
claims to completion in Florida and received a judgment on the merits. But it is conceivable
(albeit doubtful) that Hill could establish some form of equitable tolling as to counts 1 and
2, so she should be permitted to try.
CONCLUSION
Thus, defendant’s motion to dismiss is GRANTED in part:
1. Counts 1 and 2 are DISMISSED with leave to amend.
2. Counts 3 through 18 are DISMISSED with prejudice and without leave to
amend.
Plaintiff Hill may amend her complaint as to counts 1 and 2 only. By April 20, 2026,
she must file any such amended complaint, addressing the deficiencies discussed above.
The amended complaint must be complete by itself without reference to any previous
pleading. If she fails to timely amend, the Court will dismiss this entire action with
prejudice.
Dated: March 20, 2026
___________________________
Hon. Andrew G. Schopler
United States District Judge
Case 3:25-cv-00914-AGS-JLB Document 18 Filed 03/20/26 PageID.<pageID>
Page 6 of 6