UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CHERYL LYNN AND :

CHARLES BEHYMER, :

:

Plaintiffs, : CASE NO. 1:17-cv-146

:

v. :

:

HEALTHSOURCE OF OHIO :

BATAVIA OB/GYN, et al., :

:

Defendants. :

NOTICE OF REMOVAL

1. Under 42 U.S.C. § 233(c), the United States of America is removing to this

Court a civil action originally filed by Plaintiffs Cheryl Lynn and Charles Behymer

in the Court of Common Pleas, Hamilton County, Ohio. Plaintiffs Cheryl Lynn and 

Charles Behymer’s Complaint is attached at Exhibit 1.

2. Under the Public Health Service Act, as amended by the Federally Supported 

Health Centers Assistance Act, 42 U.S.C. § 233(g), the Department of Health and 

Human Services on June 19, 2014, deemed HealthSource of Ohio Batavia OB/GYN to 

be an employee of the Public Health Service, and its deemed status has continued

without interruption since that date. 

3. Defendants HealthSource of Ohio Batavia OB/GYN, Sherry Johnson, D.O., 

Jeffrey Lubow, M.D., and Casey Ogburn, M.D., as employees of HealthSource of 

Ohio Batavia OB/GYN, were each deemed to be employees of the Public Health 

Case: 1:17-cv-00146-MRB Doc #: 1 Filed: 03/08/17 Page: 1 of 3 PAGEID #: 1
2

Service for purposes of 42 U.S.C. § 233(a) at the time of the alleged incident out of 

which Plaintiffs Cheryl Lynn and Charles Behymer’s action arose.

4. Under 42 U.S.C. § 233(c) and 28 C.F.R. § 15.4, the United States Attorney for

the Southern District of Ohio has certified that HealthSource of Ohio Batavia 

OB/GYN was acting within the scope of its employment as an employee of the Public 

Health Service at the time of the alleged incident out of which Cheryl Lynn and 

Charles Behymer’s action arose, and that Sherry Johnson, D.O., Jeffrey Lubow, 

M.D., and Casey Ogburn, M.D., employees of HealthSource of Ohio Batavia 

OB/GYN, an entity deemed by statute to be employees of the Public Health Service,

were acting within the scope of their employment as employees of the Public Health 

Service at the time of the alleged incident out of which Plaintiffs’ action arose. See

United States Attorney’s Certification of Scope of Employment (attached as Exhibit 

2).

5. Congress has stated that “[u]pon a certification by the Attorney General that 

the defendant was acting in the scope of his employment at the time of the incident 

out of which the suit arose, any such civil action or proceeding commenced in a 

State court shall be removed without bond at any time before trial by the Attorney 

General to the district court of the United States of the district and division 

embracing the place wherein it is pending and the proceeding deemed a tort action 

brought against the United States . . . .” 42 U.S.C. § 233(c). Plaintiffs’ Complaint

has been removed properly to this Court under 42 U.S.C. § 233(c).

6. Under 42 U.S.C. § 233(a), the remedy against the United States provided by 

Case: 1:17-cv-00146-MRB Doc #: 1 Filed: 03/08/17 Page: 2 of 3 PAGEID #: 2
3

sections 1346(b) and 2672 of title 28 is exclusive of any other civil action. Under 28 

U.S.C. § 1346(b), commonly referred to as the Federal Tort Claims Act (FTCA), federal 

district courts are vested with exclusive jurisdiction. See 28 U.S.C. § 1346(b).

7. A copy of this Notice of Removal will be filed promptly with the Clerk of the

Court of Common Pleas, Hamilton County, Ohio, which will effect the removal. See

28 U.S.C. § 1446(d). 

Respectfully submitted,

BENJAMIN C. GLASSMAN

United States Attorney

s/Matthew J. Horwitz

MATTHEW J. HORWITZ (0082381)

Assistant United States Attorney

Attorney for Defendants

221 East Fourth Street, Suite 400

Cincinnati, Ohio 45202

Office: (513) 684-3711

Fax: (513) 684-6972

E-mail: Mattthew.Horwitz@usdoj.gov

CERTIFICATE OF SERVICE

I certify that on March 8, 2017, the foregoing Notice of Removal was filed by 

use of the Court’s CM/ECF system, and I certify that on the same date a copy of the 

foregoing was sent by first class mail to:

David I. Shroyer, Esq.

Colley Shroyer & Abraham Co., LPA

536 South High Street, 2nd Floor

Columbus, OH 43215

s/Matthew J. Horwitz

MATTHEW J. HORWITZ (0082381)

Assistant United States Attorney

Case: 1:17-cv-00146-MRB Doc #: 1 Filed: 03/08/17 Page: 3 of 3 PAGEID #: 3