                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-4233
GREGORY WILLIAMS,
                                          Plaintiff-Appellant,
                              v.

STATE OF WISCONSIN, et al.,
                                       Defendants-Appellees.
                        ____________
          Appeal from the United States District Court
               for the Eastern District of Wisconsin.
         No. 02-C-0674—Charles N. Clevert, Jr., Judge.
                        ____________
      ARGUED JUNE 10, 2003—DECIDED JULY 15, 2003
                    ____________


 Before KANNE, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
  DIANE P. WOOD, Circuit Judge. Parolee Gregory Wil-
liams wants to go to the Philippines to marry a woman
with whom he began corresponding while he was incarcer-
ated. He contends in this action, which he brought under
42 U.S.C. § 1983, that the State of Wisconsin and various
parole officials are violating his rights to travel and marry
by refusing to let him take this trip. The district court
dismissed the suit with prejudice for failure to state a
claim. FED. R. CIV. P. 12(b)(6). We agree that Williams
cannot state a claim against the state or its officials on
this basis, and we therefore affirm.
2                                              No. 02-4233

                             I
  In 1991 Williams was convicted by a Wisconsin state
court and sentenced to a term of imprisonment. The rec-
ord does not disclose either Williams’s crime or the length
of his sentence, but six years after he was incarcerated, he
apparently began to correspond with Maria Dela Rosa—a
Filipino citizen residing in Mandaloyong City. The pair
eventually agreed to marry (the record again is silent on
the date), and in May 2001, Williams was paroled.
  After his release Williams took up residence in Milwau-
kee and attempted to arrange a face-to-face meeting
with Dela Rosa. In January 2002, Williams’s father wrote
a letter to President Bush asking for help bringing Dela
Rosa to the United States. This letter made its way to
INS officials, who responded that Williams already had
applied for a fiancée visa and that State Department
officials in the Philippines had refused to issue a tourist
visa to Dela Rosa for fear that she would remain in the
United States illegally. The agency also opined that un-
less Dela Rosa became related to a U.S. citizen or de-
veloped professional skills in short supply in the United
States, she had only a remote chance of immigrating
successfully.
  Faced with these problems bringing Dela Rosa to Wis-
consin, Williams proposed to leave the country to meet her.
He first asked his parole agent for a travel permit to
visit the Philippines. The agent refused, and his decision
was upheld by various parole administrators, who noted
that Wis. Admin. Code § DOC 328.06(8) flatly states that
“[a]uthorization to travel to foreign countries shall not
be granted to clients.”
  After exhausting his administrative remedies, Williams
turned to federal court. In July 2002 he filed this action
contending that § DOC 328.06(8) unconstitutionally re-
stricts his rights to travel and marry. Williams sought
No. 02-4233                                               3

damages as well as an affirmative injunction commanding
the parole officials to permit him to travel to the Philip-
pines. Upon the defendants’ motion, the district court
dismissed the suit for failure to state a claim, concluding
that the Constitution did not oblige the defendants to
accommodate Williams’s request. The court explained
that the state may reasonably restrict the rights of
parolees like Williams and that Wisconsin has legitimate
penological reasons for prohibiting the proposed trip.


                            II
  Before turning to the merits of Williams’s appeal, we
pause to consider whether this case was properly brought
under § 1983, or if it should have been presented as a
petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Neither party has raised this point, and we thus must
also consider whether we have any responsibility to do
anything but evaluate the claim as presented. The short
answer to the first question is that, under the law of
this circuit, the case should have been brought as a § 2254
action. Nevertheless, we consider it so clear that the
underlying legal point Williams is making is without
merit that we see no reason to do anything but to affirm
the district court’s dismissal, rather than convert it to
a dismissal without prejudice and give Williams the
opportunity to refile his claim as a petition for a writ of
habeas corpus (a step he has not yet taken, for purposes
of counting first or second petitions).
  For prisoners, the difference between a civil rights ac-
tion and a collateral attack is easy to describe. Challenges
to conditions of confinement (such as pollution in the pris-
on or deliberate indifference to serious medical needs)
fall under § 1983. Preiser v. Rodriguez, 411 U.S. 475, 500
(1973). Attacks on the fact or duration of the confinement
come under § 2254. Id.; Moran v. Sondalle, 218 F.3d 647,
4                                              No. 02-4233

650-51 (7th Cir. 2000) (per curiam). For parolees, the
question is more metaphysical, because the “conditions” of
parole are the confinement. Requirements that parolees
stay in touch with their parole officer, hold down a job,
steer clear of criminals, or (as in Williams’s case) obtain
permission for any proposed travel outside the jurisdic-
tion, are what distinguish parole from freedom. It is
because of these restrictions that parolees remain “in
custody” on their unexpired sentences and thus may initi-
ate a collateral attack while on parole. See Jones v.
Cunningham, 371 U.S. 236, 242-43 (1963); see also
Maleng v. Cook, 490 U.S. 488, 491 (1989) (per curiam).
  Here Williams wants relief from one of the restrictions
imposed by his parole—a ban on international travel. This
court in Drollinger v. Milligan, 552 F.2d 1220 (7th Cir.
1977), confronted a similar request when an Indiana
probationer brought a § 1983 action challenging eight
restrictions of her probation. Among other things, the
probationer could not get a roommate, leave the house
at night, change jobs, accept gifts, visit her ex-husband
or his parents, act so as “to cause anyone to question that
she is violating the law,” or skip church. Id. at 1223-24.
  We concluded that the probationer’s contentions should
have been presented in a collateral attack. The court
explained that the challenged restrictions “define the
perimeters of her confinement.” Id. at 1224. Thus, eliminat-
ing or changing one of the restrictions would alter the
confinement: “figuratively speaking, one of the ‘bars’
would be removed from [the probationer’s] cell.” Id. at
1225; see also Clark v. Prichard, 812 F.2d 991, 997-99 (5th
Cir. 1987) (concurring opinion) (same result for a proba-
tioner who was required to work in lieu of collecting wel-
fare benefits).
  Drollinger remains the law in this circuit, and we have
no reason to question its authority here. The question is
No. 02-4233                                               5

rather what we should do about the fact that Williams
should have brought this as a § 2254 action. Normally,
collateral attacks disguised as civil rights actions should
be dismissed without—rather than with—prejudice. That
resolution allows the plaintiff to decide whether to refile
the action as a collateral attack after exhausting avail-
able state remedies. Pischke v. Litscher, 178 F.3d 497, 500
(7th Cir. 1999); Copus v. City of Edgerton, 96 F.3d 1038,
1039 (7th Cir. 1996) (per curiam). In this case, however,
both because neither Williams nor the state raised this
point, and because any collateral attack on this basis
would be futile, we have chosen not to change the nature
of the dismissal. We instead have evaluated the claim
exactly as it was presented, under § 1983.


                            III
  On the merits, there are a number of problems with
Williams’s action. First, he has attempted to sue the State
of Wisconsin, the state’s department of corrections (a
state agency), and three parole officials in their official
capacities. (Williams did not include the words “official
capacity” in the caption of the complaint. The district
court, however, noted in its written memorandum that
Williams’s lawyer had abandoned any individual-capacity
claims at a telephone conference. And although the rec-
ord does not contain a transcript of this conference, Wil-
liams on appeal does not dispute the district court’s char-
acterization of that call.) Williams’s decision to forego an
individual-capacity suit blocks his claims for damages
under § 1983. By suing the individual defendants in
their official capacities, Williams made the state the only
interested party, Kentucky v. Graham, 473 U.S. 159, 166
(1985), and a state is not a “person” subject to a damages
action under § 1983, Lapides v. Bd. of Regents, 535 U.S.
613, 617 (2002). The defendants also assert that the
6                                                No. 02-4233

Eleventh Amendment bars any damages claims. See, e.g.,
Quern v. Jordan, 440 U.S. 332, 338-40 (1979). But any
constitutional problem that may exist is subordinate to the
statutory deficiency. Suits against states for damages
should be resolved on the ground that they do not come
within § 1983, not because states are protected by the
Eleventh Amendment. Vt. Agency of Natural Res. v. United
States ex rel. Stevens, 529 U.S. 765, 779 (2000); Power v.
Summers, 226 F.3d 815, 818 (7th Cir. 2000).
  To the extent Williams is seeking injunctive and declara-
tory relief against ongoing or anticipated violations of
his rights to travel and marry, he is not barred at the
outset from proceeding. Official-capacity suits against
state officials seeking prospective relief are permitted by
§ 1983, Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
n.10 (1989), and under Ex parte Young, 209 U.S. 123 (1908),
they are not barred by the Eleventh Amendment. See, e.g.,
Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645-
48 (2002).
  That brings us to the merits of Williams’s claims that
his constitutional rights to travel and to marry have
been violated by Wisconsin. It is true that the Supreme
Court has recognized that under various constitutional
provisions including the privileges and immunities
clauses of Article IV and the Fourteenth Amendment,
ordinary citizens have a protected right to interstate
travel. See, e.g., Saenz v. Roe, 526 U.S. 489, 498-504 (1999).
But, like prisoners, see Meachum v. Fano, 427 U.S. 215,
224-25 (1976), parolees such as Williams have no right
to control where they live in the United States; the right
to travel is extinguished for the entire balance of their
sentences. See Alonzo v. Rozanski, 808 F.2d 637, 638 (7th
Cir. 1986); Bagley v. Harvey, 718 F.2d 921, 924 (9th Cir.
1983); see also Jones v. Helms, 452 U.S. 412, 419-20 (1981)
(explaining that a person who has committed an offense
No. 02-4233                                                  7

punishable by imprisonment does not have an unqualified
right to leave the jurisdiction prior to arrest or conviction).
  More fundamentally, international travel is not the
same as interstate travel, even for free persons. See, e.g.,
Haig v. Agee, 453 U.S. 280, 306-07 (1981); Califano v.
Aznavorian, 439 U.S. 170, 176 (1978). For persons still
subject to the restrictions of parole or its equivalent, this
distinction is even more important. To begin with, the
state has no inherent right to enforce its criminal laws
or restrictions imposed under those laws outside the
United States. See RESTATEMENT (THIRD) OF FOREIGN RE-
LATIONS LAW § 432(1) (1987). Only with the permission of
the foreign country in question may the law enforcement
officers of one country exercise powers in another one. Id.
§ 432(2). Thus, Williams’s suggestion that the State of
Wisconsin could just send him to the Philippines in the
custody of his parole officer is not a realistic one. A host
of formalities, which are out of the control of the State
of Wisconsin, would have to be satisfied before such a ploy
was effective: the State Department of the United States
(and perhaps the Justice Department as well) would
need to agree to ask permission for this move from the
Filipino authorities, and the latter would have to agree.
Wisconsin thus has entirely rational reasons for flatly
prohibiting parolees from traveling outside the country.
  The fact that the state permits interstate travel under
some circumstances for parolees in no way undercuts its
rule with respect to international travel. The states are
bound together by the federal Constitution, after all, and
the Constitution itself contains a number of provisions
that ensure the possibility of interstate cooperation in the
enforcement of criminal law. The list includes the Full
Faith and Credit Clause of Article IV, sec. 1; the Interstate
Extradition Clause of Article IV, sec. 2, cl. 2; and the
Interstate Compact Clause of Article I, sec. 10, cl. 3. The
last of those three is especially relevant, as there is in fact
8                                                No. 02-4233

an Interstate Compact for Adult Offender Supervision,
which Wisconsin has implemented in Wis. Stat. § 304.16.
The compact provides a framework for the supervision
of adult offenders who are authorized to travel across
state lines, “in such a manner as to enable each compact-
ing state to track the location of offenders, transfer super-
vision authority in an orderly and efficient manner, and,
when necessary, return offenders to their original juris-
dictions.” Id. § 304.16(1)(a). Nothing of the sort exists
internationally, and indeed, Article I, sec. 10, cl. 1 of the
Constitution forbids individual states from entering
into any international treaties.
   The fact that the right to interstate travel and the
right to marry have been described as fundamental
rights adds nothing to Williams’s arguments. We accept
Williams’s assertion that he wants to go to the Philippines
so that he can marry Dela Rosa, but he too readily as-
sumes that the state’s travel restriction (which we have
already found to be rationally based) amounts to an abso-
lute prohibition on his right to marry. It is true that
Turner v. Safley, 482 U.S. 78 (1987), recognizes the fun-
damental right of prisoners to marry—a right that may
be limited only for sound penological reasons. Id. at
94-100. But no one here has forbidden Williams from
getting married or from marrying Dela Rosa. Compare id.
at 96-97; Martin v. Snyder, 329 F.3d 919, 920 (7th Cir.
2003). At most, the state’s rule has affected either the
timing or the place of his marriage plans. This type of
incidental interference with the right to marry does not
give rise to a constitutional claim if there is “some jus-
tification” for the interference. Keeney v. Heath, 57
F.3d 579, 580-81 (7th Cir. 1995); see also Wright v.
MetroHealth Med. Ctr., 58 F.3d 1130, 1135-36 (6th Cir.
1995); Parks v. City of Warner Robins, 43 F.3d 609, 613
(11th Cir. 1995); cf. Berrigan v. Sigler, 499 F.2d 514, 519-20
(D.C. Cir. 1974) (parolees could be prohibited from meeting
No. 02-4233                                               9

with religious leaders in Vietnam because the restriction
burdened First Amendment rights only “tangentially”).
Here, as we have already noted, there is ample justifica-
tion for the restriction: the state risks losing all right
to supervise Williams the moment he is outside the juris-
diction of the United States.


                            IV
  There is no set of facts that could be imagined that
would change this assessment of the legality of Wiscon-
sin’s ban on international travel for parolees. The district
court accordingly was correct to dismiss this case under
Rule 12(b)(6), and we AFFIRM its judgment.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-15-03
