Schmalshof v. McDonough County, Illinois

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

EVAN SCHMALSHOF and )

SCHMALSHOF FAMILY TRANSPORT )

LLC, )

)

Plaintiffs, )

)

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

)

McDONOUGH COUNTY and NICHOLAS )

PETITGOUT, individually and not in his )

official capacity, )

)

Defendants. )

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.

BACKGROUND1

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.

1 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.

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.

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.

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.”

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

[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).

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:

(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

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.

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.

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

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. 20-

cv-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,

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

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