The opinion of the court was delivered by: Hillman, District Judge
Presently before the Court are defendants' motions to dismiss and for summary judgment, and plaintiff's motion for partial summary judgment, on plaintiff's claims of negligence and constitutional violations against defendants. Oral argument was held on March 29, 2010. For the reasons expressed below, the Court will find in defendants' favor.
In 2003, the New Jersey Superior Court found plaintiff, John Brant, not guilty by reason of insanity*fn1 to criminal mischief and other criminal charges. As a result, plaintiff was involuntarily committed to a state psychiatric hospital pursuant to State v. Krol, 68 N.J. 236 (1975) and N.J.S.A. 2C:4-8. After being placed in two other facilities, on September 26, 2005, plaintiff was transferred to Ancora Psychiatric Hospital in Hammonton, Atlantic County, New Jersey.*fn2 While at Ancora, plaintiff's treatment team consisted of defendant Dr. Elizabeth Burns, who was plaintiff's clinical psychiatrist, defendant Dr. Heidi Camerlengo, who was plaintiff's psychologist, and defendant Louis Martelli, who was plaintiff's social worker.
During his commitment, plaintiff was subject to an unrelated outstanding warrant in Lakewood Township, Ocean County, New Jersey for his arrest for traffic fines. Plaintiff expressed to his treatment team that he wished to be transferred to the jail in Lakewood under "detainer status," and he demanded the transfer under threats of escape. After consideration of numerous factors, and with the ultimate goal of plaintiff returning to the more-secure Ann Klein Forensic Center, plaintiff's treatment team determined to discharge plaintiff to the custody of the Lakewood Township Police Department.
In order to facilitate this transfer, the treatment team made arrangements with the Lakewood Township police to transfer plaintiff to the jail there. The team also obtained an order from plaintiff's Krol judge, who ordered a detainer for plaintiff's arrest so that he would not be released from the Lakewood Township police custody upon the resolution of his outstanding warrant.*fn3 Dr. Burns drafted a detailed discharge report and aftercare plan, both of which, along with a thirty-day supply of medication, were sent with plaintiff to Lakewood Township.
On November 18, 2005, plaintiff was discharged from Ancora and the Lakewood Township police transferred him to the Lakewood Township police station.*fn4 Despite the detainer issued by the Krol judge, the Lakewood Township Police Department released plaintiff after he paid his fines. Plaintiff believed he was "free," which he indeed was, and he took the bus to his home. For four days plaintiff visited various places and socialized with his friends. According to plaintiff, on November 21, 2005, he was in Pemberton, New Jersey with his friends, but they had left and he needed a ride home. Plaintiff pulled out some money, showed it to strangers who had a car, and told them he would pay them for a ride home. Instead of driving him home, they took him to a different location. One of the people exited and then reentered the car with a gun. Plaintiff panicked because he did not know whether the person was going to shoot him or rob him, so he grabbed the gun. A shot went off, and a bullet hit plaintiff in the right knee.*fn5 Plaintiff's femur bone was shattered and required two plates and eight screws to reconstruct. Plaintiff eventually returned to Ancora on November 28, 2005.
In February 2007, plaintiff filed a pro se complaint against defendants, claiming that they committed professional malpractice in their decision to discharge him, as well as violated his constitutional rights because of their deliberate indifference to his serious medical need and because of their failure to provide substantive and procedural due process. He filed an amended complaint in October 2007, and then on July 29, 2009, plaintiff filed a second amended complaint through counsel. Plaintiff's current complaint asserts the following claims against defendants: Count I, negligence against Dr. Burns because she breached her duty of care by releasing plaintiff even though he had "impaired" insight and "poor" judgment; Count II, abandonment against Dr. Burns*fn6 ; Count III, violation of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 et seq., against all defendants because they deprived plaintiff of his substantive right to medical care and treatment; Count IV, violation of plaintiff's substantive due process rights under the Fourteenth Amendment to the United States Constitution, against all defendants because they deprived plaintiff of his substantive right and liberty interest to protection by the State of New Jersey from harm by others; and Count V, violation of plaintiff's procedural due process rights under the Fourteenth Amendment to the United States Constitution, against all defendants because they violated plaintiff's procedural due process rights by discharging him without following the statutory procedures that govern such discharges or otherwise providing procedures that would satisfy plaintiff's constitutional right to due process of law.
Dr. Burns has moved to dismiss plaintiff's professional negligence claims against her because of plaintiff's failure to provide an affidavit of merit. Dr. Burns and the other defendants have moved for summary judgment in their favor on the rest of plaintiff's claims against them. Plaintiff has also moved for partial summary judgment in his favor on his negligence claim and New Jersey Civil Rights violation claim against Dr. Burns.
Plaintiff has brought his claims pursuant to 42 U.S.C. § 1983, as well as pursuant to the New Jersey constitution and New Jersey state law. This Court has jurisdiction over plaintiff's federal claims under 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiff's state law claims under 28 U.S.C. § 1367.
B. Standards for Motion to Dismiss and Summary Judgment
When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) for a plaintiff's failure to file an affidavit of merit in compliance with N.J.S.A. 2A:53A-27, "the plaintiff should expect that the complaint will be dismissed with prejudice provided the doctrines of substantial compliance and extraordinary ...