dissenting:
I do not agree that Judge Trager abused his discretion in granting the preliminary injunction.
The plaintiffs, who were placed as children, are sufficiently disabled that they have no ability to care for themselves, nor do they have any ability to choose what their living and care arrangements should be. Beginning in 1982, the plaintiffs turned twenty-one and “aged out” of their federally-funded educational program. The counties and locali.ties, which originally placed the plaintiffs with State approval in out-of-state facilities, decided to continue their placement out-of-state because there was a shortage of instate facilities. At that time, the State chose to bear 50% of the cost of care.
The plaintiffs, as adults, came under State supervision either through the New York State Office for Mental Retardation and Developmental Disabilities (“OMRDD”) or through the New York State Office of Mental Hygiene (“OMH”), which were required to arrange for their transfer1 to appropriate instate adult care facilities. Those State offices, however, did little to arrange the transfers, apparently because in-state facilities were not available.
In 1994, transfer procedures and funding were codified in the Transitional Care Funding (“TCF”) statute. N.Y.Soc.Serv.L. §§ 466 to 466-b (McKinney Supp.1996). Pursuant to the TCF statute, § 466, the State agreed to increase its share of the cost of care from 50% to 60% for the period 1995 to 1999 and agreed to assume 100% of the cost thereafter. Despite the increased State funding, in the fall of 1994, New York City decided to cut off funding after 1994. The City later extended funding through the first half of 1995.
While the State does not have a statutory obligation to continue funding the out-of-state services, it does have a statutory obligation to provide in-state services and to transfer the plaintiffs to those services.2 *1469Furthermore, as provided by the TCF statute, the State has promulgated procedures to place plaintiffs responsibly in in-state facilities while out-of-state care is phased out.3
The State agencies were aware of their obligation to place these individuals in facilities located in New York State, but failed to do so. This gave rise to the fiasco of the weekend of July 4, 1995. With no notice to the patients, or their guardians, and with only three days notice to the care facilities, the State attempted to pick up these individuals and involuntarily transfer them into facilities in New York State. There was no suggestion that any orderly transition would be forthcoming, or that any modicum of professional judgment would be exercised to determine the appropriateness of the transfers or the transferee facilities. This all occurred despite earlier representations from OMRDD and OMH that transitional care payments would be made to support the “orderly transfer of clients,” and a June 27,1995 letter from Governor Pataki indicating that these individuals would be “offered appropriate placements, assimilating into the adult care system....”
Against this factual background, I cannot agree that the plaintiffs’ substantive due process claim is barred in any way either by res judicata or by the holding of DeShaney v. Winnebago County Dep’t. of Social Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).
With regard to res judicata, during the pendency of the New York State litigation, various State officials represented that an orderly transition from out-of-state to instate facilities would be made. In the face of those representations, plaintiffs should not be expected to have anticipated an abrupt funding cutoff. Nor could plaintiffs have anticipated an inhumane attempt to transfer as the State attempted to do on July 3, 1995, after the New York State litigation was complete.
Nor am I persuaded by the majority’s reliance on the Supreme Court’s decision in DeShaney. In Youngberg v. Romeo, 457 U.S. 307, 324, 102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982), the Supreme Court held that, the Due Process Clause requires the State to provide adequate food, shelter, clothing, medical care, personal security, protection from arbitrary restraint and certain minimum services to persons who are in State care. In fulfilling those obligations, the State is given great deference so long as it determines the level of appropriate service by an exercise of professional judgment. Id. at 321-23, 102 S.Ct. at 2461-62. Youngberg, of course, involved an involuntary commitment of a mentally disabled person. This court’s holding in Society For Good Will To Retarded Children, Inc. v. Cuomo, 737 F.2d 1239, 1245-47 (2d Cir.1984) (“Good Will”), was not so limited. That case dealt with the due process rights of mentally disabled residents of a State-operated school. Without deciding whether the residents were voluntarily or involuntarily admitted to the school, the court found the residents to be dependent upon the State. On the basis of their dependency, the court explained that the State had a duty to house them in a manner which does not deprive them of due process. The State was required to exercise professional judgment in determining appropriate care. Id. Youngberg and Good Will recognize a basic due process right to humane treatment while in state care.
*1470Although DeShaney may have limited Good Will to some extent, I do not believe that DeShaney in any way overruled Good Will. In DeShaney a minor child, Joshua DeShaney, sought to hold state social workers liable under the Due Process Clause for having failed to protect him from abuse by his father who had custody. DeShaney simply held that the Due Process Clause does not require the State to protect a person who is not in State custody from acts of private persons. The Court relied on the fact that the Due Process Clause protects people from state action, not private actions.
In DeShaney the Court also noted:
Had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect. Indeed, several Courts of Appeals have held, by analogy to Estelle [v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (requiring States to provide adequate medical care to prisoners) ] and Youngberg, that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents. We express no view on the validity of this analogy, however, as it is not before us in the present case.
489 U.S. at 201 n. 9, 109 S.Ct. at 1006 n. 9 (citations omitted). The plaintiffs here, as in Good Will, receive their care as a result of state action and hence fall closer to the foster care analogy, which DeShaney explicitly declined to reach, than to the private action from which the Court in DeShaney held no due process rights arise. Accordingly, De-Shaney does not undermine the holding of Good Will: that due process requires that mentally disabled persons who are dependent on the State for their care must receive treatment in accordance with standards of professional judgment.
In DeShaney, the Court stressed that “[wjhile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them.” 489 U.S. at 201, 109 S.Ct. at 1006. In the instant case, however, the district court found that for many plaintiffs “the State is de facto, if not de jure, guardian.” 908 F.Supp. 1142, 1149 (E.D.N.Y.1995). The plaintiffs are adult people who have been living in out-of-state facilities approved, supervised and funded in part by the State. Given this factual scenario, I cannot agree that the district court abused its discretion when it found that these plaintiffs are in the custody of the State for purposes of effecting an orderly transfer to in-state facilities.
Plaintiffs have a due process right to a minimal degree of care based upon professional judgment. This conclusion stems from several factors, including: plaintiffs’ previously created dependence upon the State; plaintiffs’ inability to make basic decisions for themselves, or to care for themselves; and the State’s unfulfilled obligation to provide in-state care for the plaintiffs.
We should not disturb Judge Trager’s conclusions that there are sufficiently serious questions regarding the risk of further abuse of the plaintiffs’ substantive due process rights, and that the balance of hardships tips decidedly in plaintiffs’ favor.4 These plaintiffs are particularly vulnerable to change. The actions of the State over the weekend of July 4, 1995, demonstrate that these plaintiffs can be substantially harmed by State action — namely, attempts to transfer the plaintiffs without adequately considering the appropriateness of the means of transfer, or of the facilities to which the transfer occurs.
Given the responsibility of the State to provide minimal care and not to inflict the harm that a disorderly transition could cause, it is hardly a stretch to conclude that there was an attempt to violate plaintiffs’ substan*1471tive due process rights. Without injunctive relief, the State may violate the due process rights of these plaintiffs in the future. It is hardly an answer to suggest, as the majority does, that a more limited injunction (presumably an order not to repeat the events of the July Fourth weekend) will suffice. If funding is cut off, an orderly transition cannot occur because any additional attempts by the State to move the plaintiffs will again be forced by the threat of eviction rather than determined by the medical needs of the plaintiffs and the capabilities of available instate-faeilities. There is substantial risk that hasty decisions made under the threat of eviction will result in ill-considered, poorly executed in-state placements that endanger the health of the plaintiffs. This risk is particularly acute given the continuing dearth of in-state-faeilities capable of adequately caring for the plaintiffs, a dearth that has persisted for more than a decade and that is unlikely to end before the out-of-state facilities run out of funds to care for the plaintiffs.
The district court’s decision to order the State to fund transitional care was not an abuse of discretion. I respectfully dissent.
. See N.Y.Soc.Serv.Law § 473(1) (McKinney Supp.1996) (quoted at infra n. 2). This statute has been in effect since 1975.
. Section 473 of the New York Social Service Law provides:
1. In addition to services provided by social service officials pursuant to other provisions of this chapter, such officials shall provide protective services in accordance with federal and state regulations to or for individuals without regard to income who, because of mental or physical impairments, are unable to manage their own resources, carry out the activities of daily living, or protect themselves from ... active, passive or self neglect ... or other hazardous situations without assistance from others and have no one available who is willing and able to assist them responsibly. Such services shall include:
(c) arranging, when necessary, for commitment, guardianship, or other protective placement of such individuals either directly or through referral to another appropriate agency, provided, however, that where possible, the least restrictive of these measures shall be employed before more restrictive controls are imposed;
(d) providing services to assist such individuals to move from situations which are, or are likely to become, hazardous to their health and well being....
N.Y.Soc.Serv.Law. § 473 (emphasis added).
. The TCF statute provides:
5. Social services districts shall discontinue payments for transitional care, in accordance with procedures established by the department, for any individual:
(a) who has been offered an appropriate, available adult placement or adult services, based upon a notification from the department that such an offer has been made and accepted, or has been made and upheld by an administrative hearing, or has been made and the time to request an administrative appeal has expired;
(c) who is residing in a facility which has failed or refused to meet its obligations pursuant to this article as a condition of funding, based on a notice from the department that it has made such a determination and that the office of mental health or the office of mental retardation and developmental disabilities, if necessary and appropriate, offer an adult placement to the individual on an expedited basis.
N.Y.Soc.Serv.Law § 466.
. The district court did not need to find an “actual and imminent" likelihood of future abuses involving the threat of involuntary transfer, though the majority suggests it must at 31-32. As the majority correctly noted at 18, the court only needed to find "sufficiently serious questions” of such abuses given a balance of hardships that tips "decidedly” in the plaintiffs' favor. We should not forget this alternative ground for granting a preliminary injunction, particularly since it is the ground relied on by the district court, 908 F.Supp. at 1154.