___________ No. 95-3645

___________ Steven C. Labickas, * * Appellant, * * v. * Appeal from the United States * District Court for the U.S. Department of Education; * Eastern District of Arkansas. Arkansas State University; * [UNPUBLISHED] Simmons First National Bank, * * Appellees. *

___________ Submitted: August 2, 1996 Filed: August 7, 1996

___________ Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.

___________

PER CURIAM.

Steven C. Labickas filed suit against the United States Departmen t of Edu cation (DOE), Arkansas State University (ASU), and Simmons Firs t National Bank (Simmons), alleging violations of the Federal Tort Claims Ac t (FTCA), 28 U.S.C. §§ 2671-80, the Higher Educati on Act (HEA), 20 U.S.C. §§ 1070-1099, and state common law.

The distr ict court dismissed the complaint with prejudice as to all defendants, concludin g that Labickas failed to show that he had exhausted administrative procedures under the FTCA; that ASU was entitled to immunit y from suit under the E leventh Amendment; the HEA did not provide a private

cause of action; and that there was therefore no federal subject matte r jurisdiction for Labickas's claims against Simmons.

We reject Labickas's argument that t he FTCA's exhaustion requirement is unconstitutional. See Bellecourt v. United States ,

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994 F.2d 427, 430 (8th Cir. 1993) (FTCA is limited waiver of sovereig n immunity requiring strict compliance; exhaustion of administrative remedie s is jur isdictional), cert. denied , 114 S.Ct. 1049 (1994); Celestine v

. Veterans Admin. Hosp. , 746 F.2d 1360, 1362 (8th Cir. 1984) (absen t exhaustion, sovereign immunity of United States is not waived).

As to Labickas's claim that the HEA creates a private right o f acti on, we determined in an earlier action filed by Labickas that n o private right of action was implied under the HEA for student borrowers. Labickas v. Arkansas State Univ. , 78 F.3d 333, 334 (8th Cir. 1996) (pe r curiam).

Contrary to his assertions, Labickas also cannot proceed under 4 2 U.S.C. § 1983. We ag ree with the district court that ASU was entitled to Eleventh Amendment im munity. See Sherman v. Curators of Univ. of Mo. , 16 F.3d 860, 863-64 (8th Cir. 1994) (discussing factors court must consider in determining agency's entitlement to Eleventh Amendment immunity); Dover Elevator Co. v. Arkansas State Univ. , 64 F.3d 442, 447 (8th Cir. 1995) (AS U entitled to Eleventh Amendment immunity because testimony established fund s to pay aw ard against ASU were controlled by state assembly). As t o Simmons, Labickas made no allegations from which it can be inferred that Simmons acted under c olor of state law. See Mershon v. Beasley , 994 F.2d 449, 451 (8th Cir. 1993) (quoting Dennis v. Sparks , 449 U.S. 24, 27 (1980) ) (private party may be held liable on § 1983 claim if "willful participant in joint action with the State or its agent"), cert. denied , 114 S.Ct. 105 5 (1994).

We also reject Labickas's argument that the district court abus ed its discre tion in denying Labickas's motion for a default judgment agains t Simmons. See United States on Behalf of Time Equip. Rental v. Harre , 983 F.2d 128, 130 (8th Cir. 1993) (standard of review).

### -3- Although it was within the district court's discretion to dismis s Labickas's state law claims, see McLaurin v. Prater , 30 F.3d 982, 984-85 (8th Cir. 1994), they should have been dismissed without prejudice. Cf

. Stokes v. Lokken , 644 F.2d 779, 785 (8th Cir. 1981) (construing orde r dismissing state law claims following summary judgment on federal claims

as dis missal without prejudice because such procedure is the "norma l practice").

Accor dingly, we affirm the dismissal with prejudice of Labickas' s fed eral claims and modify the dismissal of his state law claims to b e without prejudice. We deny Labickas's request to certify issues to th e United States Supreme Court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.