Motion to Dismiss Counts Against Sheriff Granted in Part, Two Other Counts Remain
A federal judge recently granted a motion to dismiss in part and denied in part a lawsuit filed by former McDonough County Sheriff's Deputy Evan Schmalshof.
Schmalshof filed the new lawsuit, in April 2025, one month after the original lawsuit was dismissed in federal court.
On Tuesday, Aug. 25, U.S. District Court Judge Sara Darrow ruled that all claims against McDonough County are dismissed. Count II, for retaliatory termination in response to Schmalshof's Facebook post, and Count IV, for the deprivation of Schmalshof's accrued leave without due process, may proceed against Sheriff Nick Petitgout.
Four counts against Petitgout have been dismissed, including Count IV, violation of the Driver's Privacy Protection Act, dismissed with prejudice (it cannot be refiled).
The other counts dismissed include Count 1: retaliation for a political campaign; Count III: viewpoint discrimination; and Count V: deprivation of occupational liability; and Count VII, against the county: Monell liability.
On March 5, 2025, Judge Darrow dismissed, without prejudice, the original lawsuit, which was filed in March 2024, following Schmalshof's January 2024 termination as a deputy with the sheriff's office. On April 19, 2025, the former deputy's attorney refiled the lawsuit in U.S. District Court. In the new lawsuit, Schmalshof, who is seeking $1 million in damages, brings forth similar complaints contained within the dismissed suit.
Nearly one year after his dismissal, arbitrator Thomas F. Gibbons' stated that Petitgout did not have just cause to terminate Schmalshof for 'conduct unbecoming' and that Schmalshof was to 'be immediately reinstated to his full-time position as deputy with the McDonough County Sheriff’s Office with full back wages, benefits, and seniority rights, minus any earnings as mitigation since the time of his termination.' While Schmalshof was reinstated, he remained on paid administrative leave pending the outcome of an internal investigation regarding the January 2023 pursuit that resulted in the death of James Mellenthin, 35, of Cottage Hills. Schmalshof was relieved of his duties at the sheriff's office in August 2025.
