Schmalshof et al v. McDonough County, Illinois et al

Filing 12

ORDER entered by Chief Judge Sara Darrow on March 5, 2025. Defendants McDonough County and Nicholas Petitgout's 7 Motion to Dismiss is GRANTED. Plaintiffs Evan Schmalshof and Schmalshof Family Transport LLC did not respond to the motion to dismiss nor did they request leave to amend the complaint, and the Court will not sua sponte grant such leave. The 1 Complaint is DISMISSED WITHOUT PREJUDICE. The Clerk is directed to enter judgment and close the case. (ARR)

E-FILED

Wednesday, 05 March, 2025 10:21:41 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
EVAN SCHMALSHOF and
SCHMALSHOF FAMILY TRANSPORT
LLC,
Plaintiffs,
v.
McDONOUGH COUNTY and NICHOLAS
PETITGOUT, individually and not in his
official capacity,
Defendants.

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Case No. 3:24-cv-03071-SLD

ORDER
Before the Court is a motion to dismiss filed by Defendants McDonough County and
Nicholas Petitgout, ECF No. 7. For the reasons set forth below, the motion is GRANTED.
BACKGROUND 1
Plaintiffs Evan Schmalshof and Schmalshof Family Transport LLC (“Family Transport”)
bring this action against McDonough County and Petitgout, alleging that Defendants deprived
Schmalshof of his constitutional right to free speech, effectuated a “scheme and artifice to
harass” and “systematically oppress[]” him, interfered with his employment contract, and
improperly obtained personal information about him and his company, Family Transport.
Compl. ¶ 1, ECF No. 1. Petitgout is the Sheriff of McDonough County, Illinois. Schmalshof is
the Chief of Police for the Village of Blandinsville (“Blandinsville”) and previously worked as a
sheriff’s deputy for McDonough County.

When reviewing a motion to dismiss, the court “accept[s] as true all well-pleaded facts in the complaint and
draw[s] reasonable inferences in favor of the plaintiff.” Kap Holdings, LLC v. Mar-Cone Appliance Parts Co., 55
F.4th 517, 523 (7th Cir. 2022). The factual background is drawn from the Complaint, ECF No. 1.
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While working as a sheriff’s deputy, Schmalshof made truthful statements in an interview
that reflected poorly on Petitgout and the McDonough County Sheriff’s Office (“Sheriff’s
Office”). In retaliation, Petitgout began harassing Schmalshof by forbidding him from speaking
about the Sheriff’s Office or identifying himself as a sheriff’s deputy, prohibiting his colleagues
from contacting him, blocking him from the Sheriff’s Office’s Facebook page, threatening his
union representative with retaliation, prohibiting him from delivering defendants to the
McDonough County Jail (“County Jail”), blocking the entire Blandinsville Police Department
from accessing criminal databases and the McDonough County warrant list, and telling
Blandinsville officials that his privileges would be restored if they terminated him as Chief of
Police.
On August 16, 2023, Petitgout accessed the Illinois State Police Law Enforcement
Agencies Data System (“LEADS”), looked up Family Transport’s license plates and
Schmalshof’s driver license, and obtained personal information about both Plaintiffs which he
improperly used for his own personal use. On January 26, 2024, Petitgout terminated
Schmalshof and then published his termination to various media outlets, falsely imputing
misconduct to Schmalshof.
Plaintiffs bring six claims under federal and Illinois state law: Count I: Violation of First
Amendment and Retaliation; Count II: Violation of the Driver’s Privacy Protection Act
(“DPPA”), 18 U.S.C. §§ 2721–2725; Count III: Tortious Interference with Contract; Count IV:
Intentional Infliction of Emotional Distress (“IIED”); Count V: False Light Invasion of Privacy;
and Count VI: Deprivation of First Amendment Rights Under Monell. Schmalshof brings all six
claims on behalf of himself, and the only claim expressly brought by Family Transport is
violation of the DPPA.

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Defendants move to dismiss under Rules 12(b)(1) and (6), arguing that Plaintiffs fail to
state a claim upon which relief can be granted, the Court lacks subject-matter jurisdiction over
the DPPA claim because Plaintiffs do not allege injury-in-fact, and Petitgout is entitled to
immunity. See generally Mem. L. Supp. Mot. Dismiss, ECF No. 8. Plaintiffs did not respond to
Defendants’ motion to dismiss.
DISCUSSION
I.

Legal Standard
Rule 12(b)(6) provides for dismissal when a complaint “fail[s] to state a claim upon

which relief can be granted.” “The purpose of a motion to dismiss is to challenge the sufficiency
of the complaint, not to decide its merits.” Dutch Valley Growers, Inc. v. Rietveld, No. 16-2085,
2016 WL 10789393, at *2 (C.D. Ill. Aug. 29, 2016). At the motion to dismiss stage, the key
inquiry is whether the complaint is “sufficient to provide the defendant with ‘fair notice’ of the
plaintiff’s claim and its basis.” Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934
(7th Cir. 2012) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). “[D]etailed factual
allegations are unnecessary,” Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016), but the
complaint must contain “enough facts to state a claim to relief that is plausible on its face,” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Where, as here, a plaintiff fails to respond to a motion to dismiss, the court must “look[]
to the complaint itself to determine the sufficiency of the pleadings.” Marcure v. Lynn, 992 F.3d
625, 633 n.5 (7th Cir. 2021). “Rule 12(b)(6) prevents courts from granting unopposed motions
solely because there is no response.” Id. at 633. Because “[i]t is the defendant’s burden to
establish the complaint’s insufficiency,” Gunn v. Cont’l Cas. Co., 968 F.3d 802, 806 (7th Cir.
2020), the court must address the merits of a Rule 12(b)(6) motion even when unopposed.

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When deciding on a motion to dismiss, a court accepts as true all well-pleaded factual
allegations and draws all reasonable inferences from those factual allegations in the plaintiff’s
favor. Vesely v. Armslist LLC, 762 F.3d 661, 664 (7th Cir. 2014). “[L]egal conclusions and
conclusory allegations merely reciting the elements of the claim,” however, “are not entitled to
[the] presumption of truth.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
A motion to dismiss under Rule 12(b)(1) asserts that the court lacks subject-matter
jurisdiction. Mohammad v. IndyMac Bank, F.S.B./One W. Bank, F.S.B., No. 16 C 7241, 2018
WL 1252112, at *3 (N.D. Ill. Mar. 12, 2018). “[F]ederal courts have subject-matter jurisdiction
only if constitutional standing requirements also are satisfied,” Collier v. SP Plus Corp., 889
F.3d 894, 896 (7th Cir. 2018), and “[t]he party invoking federal jurisdiction bears the burden of
establishing the[] elements” of Article III standing, Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992).
II.

Analysis
a. Count I: First Amendment Retaliation
To succeed on a First Amendment retaliation claim, a plaintiff must show that (1) he

engaged in constitutionally protected speech, (2) an adverse action was taken against him that
was “likely to deter him from exercising his First Amendment rights,” and (3) his speech was at
least a motivating factor of the adverse action. Fehlman v. Mankowski, 74 F.4th 872, 875 (7th
Cir. 2023). Whether a public employee’s speech is constitutionally protected depends “on
whether the speech was made in the employee’s capacity as an employee or as a private citizen.”

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Id. “[W]hen public employees make statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410,
421 (2006).
Schmalshof’s claim for First Amendment retaliation arises out of statements he made in
which he “provided truthful information when he was interviewed concerning the reality of the
verbal instructions and treatment of matters contrary to the written policies of the McDonough
County Sheriff’s Office.” Compl. ¶ 10. Defendants argue that this claim should be dismissed
because Schmalshof has not made a prima facie showing that he engaged in protected activity.
Mem. L. Supp. Mot. Dismiss 5–8. They assert that the facts in the Complaint are “remarkably
thin” and “fail[] to cross the threshold from speculative possibility to plausible suggestion” that
Schmalshof made his speech as a private citizen rather than a public employee. Id. at 6–7. The
Court agrees.
“The threshold inquiry” the Court must make “is whether [Schmalshof] was speaking as
a citizen.” Hatcher v. Bd. of Trs. of S. Ill. Univ., 829 F.3d 531, 538 (7th Cir. 2016) (quotation
marks omitted), overruled on other grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th
Cir. 2016). It is not enough for Schmalshof to allege a “mere speculative possibility” that he
spoke as a citizen, Abcarian v. McDonald, 617 F.3d 931, 937 (7th Cir. 2010)—instead he
“need[s] to plead specific facts that plausibly suggest[] h[is] speech was not made pursuant to
h[is] [sheriff’s deputy] role, but rather was made in h[is] capacity as a private citizen,” Hatcher,
829 F.3d at 538. Here, the only allegation Schmalshof provides about the “the context in which
[his] statements were made,” Abcarian, 617 F.3d at 937, is that his speech occurred “when he
was interviewed,” Compl. ¶ 10. With just that bare allegation, the Court can only “speculate

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[about] whether he spoke as a citizen or in the course of his employment.” Abcarian, 617 F.3d at
937. Accordingly, Count I is DISMISSED.
b. Count II: Violation of the Driver’s Privacy Protection Act
The DPPA makes it “unlawful for any person knowingly to obtain or disclose personal
information[] from a motor vehicle record,” with certain enumerated exceptions not relevant
here. 18 U.S.C. § 2722(a); see also id. §§ 2721(b)(1)–(14) (listing the permissible uses). The
statute defines “personal information” as “information that identifies an individual, including an
individual’s photograph, social security number, driver identification number, name, address (but
not the 5-digit zip code), telephone number, and medical or disability information, but does not
include information on vehicular accidents, driving violations, and driver’s status.” Id.
§ 2725(3). “The DPPA provides a private right of action for any individual whose personal
information has been obtained or disclosed in violation of the [statute].” Dahlstrom v. Sun-Times
Media, LLC, 777 F.3d 937, 941 (7th Cir. 2015) (citing 18 U.S.C. § 2724(a)). But a statutory
violation, without more, does not constitute a concrete injury sufficient to confer Article III
standing. Baysal v. Midvale Indem. Co., 78 F.4th 976, 979 (7th Cir. 2023); see also TransUnion
LLC v. Ramirez, 594 U.S. 413, 440 (2021); Spokeo, Inc. v. Robins, 578 U.S. 330, 342–43 (2016).
Plaintiffs allege that on August 16, 2023, Petitgout used LEADS to obtain personal
information about them, specifically, “the make, year, vehicle identification number, and
owner’s name, address, zip code, and driver’s license number (which contains a code for dates of
birth and other personally identifying information).” Compl. ¶¶ 25, 29. Plaintiffs assert that they
did not give their express consent to the use of this information to Defendants or the State of
Illinois. Id. ¶¶ 21, 24; see 18 U.S.C. § 2725(5) (defining “express consent”). Plaintiffs further
allege that Petitgout used the personal information he improperly obtained for his personal use.
See, e.g., Compl. ¶ 29(d).
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Defendants argue that Plaintiffs’ DPPA claim should be dismissed because Plaintiffs
have not alleged an injury-in-fact fairly traceable to the alleged DPPA violation. Mem. L. Supp.
Mot. Dismiss 8–9. The Court agrees.
“[S]tanding is an essential ingredient of subject-matter jurisdiction,” Bazile v. Fin. Sys. of
Green Bay, Inc., 983 F.3d 274, 278 (7th Cir. 2020), and “[a] plaintiff has standing only if he can
allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct . . . ,”
California v. Texas, 593 U.S. 659, 668–69 (2021) (quotation marks omitted).
Here, Plaintiffs tediously explain how Petitgout, a “person,” “knowingly” violated the
DPPA when he obtained “personal information” even though Plaintiffs did not give “express
consent.” Compl. ¶¶ 19–37. But there are no allegations that “Plaintiffs suffered any injury as a
result of” the alleged DPPA violation. Mem. L. Supp. Mot. Dismiss 8. Even assuming that
Petitgout’s actions as alleged in the Complaint constitute a violation of the DPPA, it is well
established that a bare statutory violation does not amount to a concrete and particularized injury.
For standing purposes . . . an important difference exists between (i) a plaintiff’s
statutory cause of action to sue a defendant over the defendant’s violation of federal
law, and (ii) a plaintiff’s suffering concrete harm because of the defendant’s
violation of federal law. Congress may enact legal prohibitions and obligations.
And Congress may create causes of action for plaintiffs to sue defendants who
violate those legal prohibitions or obligations. But under Article III, an injury in
law is not an injury in fact. Only those plaintiffs who have been concretely harmed
by a defendant’s statutory violation may sue that private defendant over that
violation in federal court.
TransUnion, 594 U.S. at 426–27. Plaintiffs have failed to allege that they suffered a concrete
injury as a result of Petitgout’s violation of the DPPA and they therefore have no standing to sue.
Accordingly, Count II is DISMISSED.
c. Count III: Tortious Interference with Contract
To state a claim for tortious interference with contract under Illinois law, a plaintiff must
plausibly allege:
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(1) that a valid and enforceable contract existed between the plaintiff and another
party, (2) that the defendant was aware of that contract relation, (3) that the
defendant intentionally and unjustifiably induced a breach of the contract, (4) that
there was a subsequent breach of the contract by the other party that was caused by
the defendant’s wrongful conduct, and (5) that the plaintiff suffered damages.
Law Offs. of Charles Chejfec, LLC v. Franz, 232 N.E.3d 1111, 1122 (Ill. App. Ct. 2023).
Schmalshof alleges that Petitgout interfered with his employment contract with
Blandinsville by prohibiting him from delivering up criminal defendants to the County Jail and
accessing law enforcement databases, and by telling Blandinsville officials that those privileges
would be restored if they terminated him as Chief of Police. Compl. ¶¶ 39–43. He also asserts
that “the stripping of [his] ability to serve up criminal defendants to the [C]ounty [J]ail has
become known to the community and imputes to [Schmalshof] that he somehow is a criminal
thus injuring his reputation and causing injury to [him].” Id. ¶ 41. Defendants argue that this
claim should be dismissed because the Complaint does not allege that Schmalshof’s employment
contract with Blandinsville was actually breached. Mem. L. Supp. Mot. Dismiss 11.
The Court finds that Schmalshof has not plausibly alleged breach and therefore cannot
maintain his tortious interference with contract claim. Illinois caselaw is clear that the “breach”
element requires “more than conduct rendering performance of the contract more
burdensome”—there must be “either a breach of contract, termination of the contractual
relations, or rendering performance impossible.” George A. Fuller Co., a Div. of Northrop Corp.
v. Chi. Coll. of Osteopathic Med., 719 F.2d 1326, 1330–31 (7th Cir. 1983). Additionally,
“Illinois law dictates that any tortious interference by a defendant . . . must have been directed
toward the third party, not the plaintiff.” LaSalle Bank Nat’l Ass’n v. Moran Foods, Inc., 477 F.
Supp. 2d 932, 939 (N.D. Ill. 2007). The only act Schmalshof alleges that Petitgout directed
toward the third party, i.e., Blandinsville, is telling officials that Schmalshof’s privileges would

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be reinstated if they fired him as Chief of Police. Compl. ¶ 43. Schmalshof does not allege that
his contract was terminated or that performance was made impossible. See Herman v. Prudence
Mut. Cas. Co., 244 N.E.2d 809, 814 (Ill. 1969) (“[I]n the absence of factual allegations that the
employment contracts were breached or terminated with resulting damage to plaintiffs, the
complaint fails to state a cause of action for damages for malicious interference with contract.”).
Accordingly, Count III is DISMISSED. Because Schmalshof fails to state a claim, the Court
need not address his requests for specific remedies. See Compl. ¶¶ 44–50.
d. Count IV: Intentional Infliction of Emotional Distress
To state an IIED claim under Illinois law, a plaintiff must plausibly allege:
(1) that the defendant’s conduct was truly extreme and outrageous, (2) that the
defendant either intended that his conduct would cause severe emotional distress or
knew that there was a high probability that his conduct would do so, and (3) that
the defendant’s conduct did in fact cause severe emotional distress.
Taliani v. Resurreccion, 115 N.E.3d 1245, 1254 (Ill. App. Ct. 2018). “[T]o qualify as
outrageous, the nature of the defendant’s conduct must be so extreme as to go beyond all
possible bounds of decency and be regarded as intolerable in a civilized community.” Feltmeier
v. Feltmeier, 798 N.E.2d 75, 83 (Ill. 2003). The standard for what constitutes “extreme and
outrageous” is high, and “the tort does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or trivialities.” Benton v. Little League Baseball, Inc., 181
N.E.3d 902, 926 (Ill. App. Ct. 2020).
Schmalshof makes the conclusory allegation that “Petitgout’s conduct as set forth in this
[C]omplaint was truly outrageous.” Compl. ¶ 53. Defendants argue that none of Petitgout’s
alleged actions “can be fairly characterized as beyond the bounds of societal decency.” Mem. L.
Supp. Mot. Dismiss 12–13.

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One factor that weighs in favor of Petitgout’s conduct being deemed extreme and
outrageous is the fact that he occupied a position of authority over Schmalshof. See Kolegas v.
Heftel Broad. Corp., 607 N.E.2d 201, 211 (Ill. 1992) (“[T]he extreme and outrageous nature of
the conduct may arise from the defendant’s abuse of some position which gives him actual or
apparent authority over the plaintiff or the power to affect the plaintiff’s interests.”). But simply
holding a position of authority is not sufficient to support liability—in the employer-employee
relationship, “employers often and necessarily take actions during the course of business that
result in emotional distress” but “an employer’s conduct [must] be truly egregious before it may
give rise to liability.” Ulm v. Mem’l Med. Ctr., 964 N.E.2d 632, 642 (Ill. App. Ct. 2012)
(alterations and quotation marks omitted); see, e.g., Pavilon v. Kaferly, 561 N.E.2d 1245, 1251–
52 (Ill. App. Ct. 1990) (finding extreme and outrageous conduct where an employer engaged in a
persistent pattern of pressuring an employee for dates, offering to pay her money for sexual
favors, engaging in harassing behaviors after she was fired, and threatening to kill and rape her).
Here, Schmalshof alleges that Petitgout told other deputy sheriffs not to communicate
with him, blocked him from the Facebook page, prohibited him from delivering defendants to the
County Jail, and blocked him from accessing a database and warrant list. These allegations do
not rise above “mere insults, indignities, threats, annoyances, petty oppressions, or trivialities,”
Benton, 181 N.E.3d at 926, and are therefore insufficient to support an IIED claim. Schmalshof
needed to allege that Petitgout’s conduct went “beyond all possible bounds of decency, such that
a reasonable person would hear the facts and be compelled to feelings of resentment and
outrage,” id., but he failed to do so. Accordingly, Count IV is DISMISSED.

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e. Count V: False Light Invasion of Privacy
To state a claim for false light invasion of privacy under Illinois law, a plaintiff must
allege that (1) he was placed in a false light before the public as a result of the defendant’s
actions, (2) the false light in which he was placed would be highly offensive to a reasonable
person, and (3) the defendant acted with actual malice, i.e., with actual knowledge that the
statements were false or with reckless disregard for whether the statements were true or false.
Benton, 181 N.E.3d at 933. “[T]he most basic element of a false light cause of action” is a false
statement, Salamone v. Hollinger Int’l, Inc., 807 N.E.2d 1086, 1093 (Ill. App. Ct. 2004), and
therefore “a false light claim cannot be maintained absent an allegation that some specific factual
statement was false,” Brown v. Montgomery, No. 20 CV 04893, 2024 WL 1243669, at *13 (N.D.
Ill. Mar. 22, 2024).
Schmalshof bases his false light claim on the following actions by Petitgout: Petitgout
published to Blandinsville officials that Schmalshof was prohibited from delivering up
defendants to the County Jail and accessing databases, and Petitgout published to various media
outlets that Schmalshof had been terminated. Compl. ¶¶ 55–64. Schmalshof alleges that these
statements imputed that he was not fit to serve as a law enforcement officer or Chief of Police
and that he had engaged in misconduct or was himself a criminal. Id. ¶¶ 41, 56–57, 61.
Defendants argue that Schmalshof’s claim fails because the Complaint does not allege that
Petitgout made any specific false statement and because Petitgout is entitled to absolute privilege
because he was acting as a government official within his scope of responsibility. Mem. L.
Supp. Mot. Dismiss 13–15. The Court agrees.
First, Schmalshof alleges no factually false statements made by Petitgout—according to
the Complaint, it is true that Schmalshof was prohibited from delivering up defendants to the

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County Jail and accessing databases, and it is true that he was terminated. Cf. Cash v. VanVickle,
No. 19 C 02955, 2020 WL 11039167, at *4 (N.D. Ill. Nov. 18, 2020) (“[S]imply stating an
employee was terminated does not impute an inability to perform his job duties or that he lacks
integrity to do so . . . .”). Under Illinois law, substantial truth is a defense to a false light claim,
Osundairo v. Glandian, No. 19-cv-02727, 2024 WL 5186922, at *6 (N.D. Ill. Dec. 20, 2024),
and “[t]o be substantially true, a statement need not be accurate in every detail as long as the
‘gist’ or ‘sting’ of the statement is true,” Black v. Wrigley, No. 17 C 101, 2019 WL 2433740, at
*4 (N.D. Ill. June 11, 2019). Schmalshof was in fact placed in a true light by Petitgout’s
statements. “The fact that the light might have been unflattering doesn’t mean that it was false.
It’s a false light claim, not an unflattering light claim.” Love v. Simmons, No. 23-cv-2392, 2024
WL 809107, at *7 (N.D. Ill. Feb. 27, 2024); cf. id. at *5 (“Sometimes the truth hurts, and when
the truth hurts, it isn’t defamation.”).
And second, as an executive official, Petitgout is entitled to the defense of absolute
privilege for “statements which are legitimately related to matters committed to his
responsibility.” Blair v. Walker, 349 N.E.2d 385, 389 (Ill. 1976)); see also Raab v. County of Jo
Daviess, No. 08 C 50087, 2008 WL 11619146, at *3 (N.D. Ill. Nov. 4, 2008) (“Absolute
privilege protects public officials from liability for statements made within the scope of their
duties.”). Illinois law vests Petitgout with the “custody and care” of the County Jail, see 55 ILCS
5/3-6017, and therefore a statement about who is allowed to access the jail and criminal
databases is “within the scope of [his] official duties,” Jones v. Lake Cnty. Sheriff’s Off., No. 20cv-05798, 2023 WL 2631659, at *5 (N.D. Ill. Mar. 24, 2023), argued, No. 23-1769 (7th Cir.
Dec. 4, 2023). Additionally, “[h]iring and firing decisions, especially regarding issues such as
integrity, are clearly reasonably related to [Petitgout]’s role” as sheriff, id., and accordingly,

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Petitgout’s statements to various media outlets about Schmalshof’s termination are protected by
an absolute privilege. Cf. Barr v. Matteo, 360 U.S. 564, 574–75 (1959) (holding that the
executive official enjoyed an absolute privilege from civil damages suit for statements made in a
press release regarding personnel decisions). Count V is DISMISSED.
f. Count VI: Deprivation of First Amendment Rights Under Monell
Schmalshof brings a claim pursuant to 42 U.S.C. § 1983 and Monell v. Department of
Social Services of the City of New York, 436 U.S. 658 (1978), based on Defendants’ alleged
violations of his First Amendment rights. Compl. ¶¶ 65–66. To bring a § 1983 claim, “a
plaintiff must allege the violation of a right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was committed by a person acting under color
of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 does not allow a local
governmental entity to be held vicariously liable for constitutional violations committed by its
employees, Monell, 436 U.S. at 691, but a local governmental entity can be held liable when it is
“directly responsible for the constitutional deprivation.” Ruiz-Cortez v. City of Chicago, 931
F.3d 592, 598 (7th Cir. 2019).
Whether a plaintiff brings a claim under § 1983 or Monell, there must be an underlying
constitutional violation—and here, that fundamental element is missing. Because the Court
found that Schmalshof does not state a claim for First Amendment retaliation, see supra § II.a.,
he has not shown that he suffered any constitutional violation, and therefore cannot sustain a
claim under § 1983 or Monell. Accordingly, Count VI is DISMISSED.
CONCLUSION
For the foregoing reasons, Defendants McDonough County and Nicholas Petitgout’s
Motion to Dismiss, ECF No. 7, is GRANTED. Plaintiffs Evan Schmalshof and Schmalshof

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Family Transport LLC did not respond to the motion to dismiss nor did they request leave to
amend the complaint, and the Court will not sua sponte grant such leave. See James Cape &
Sons Co. v. PCC Constr. Co., 453 F.3d 396, 400–01 (7th Cir. 2006). The Complaint, ECF No. 1,
is DISMISSED WITHOUT PREJUDICE. The Clerk is directed to enter judgment and close the
case.
Entered this 5th day of March, 2025.
s/ Sara Darrow
SARA DARROW
CHIEF UNITED STATES DISTRICT JUDGE

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