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No. 95-3645

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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Arkansas State University; * [UNPUBLISHED]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. *

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 Submitted: August 2, 1996

 Filed: August 7, 1996

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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.

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PER CURIAM.

Steven C. Labickas filed suit against the United States Department

of Education (DOE), Arkansas State University (ASU), and Simmons First

National Bank (Simmons), alleging violations of the Federal Tort Claims Act

(FTCA), 28 U.S.C. §§ 2671-80, the Higher Education Act (HEA), 20 U.S.C. §§

1070-1099, and state common law.

The district court dismissed the complaint with prejudice as to all

defendants, concluding that Labickas failed to show that he had exhausted

administrative procedures under the FTCA; that ASU was entitled to immunity

from suit under the Eleventh Amendment; the HEA did not provide a private

cause of action; and that there was therefore no federal subject matter

jurisdiction for Labickas's claims against Simmons.

 We reject Labickas's argument that the 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 sovereign

immunity requiring strict compliance; exhaustion of administrative remedies

is jurisdictional), cert. denied, 114 S.Ct. 1049 (1994); Celestine v.

Veterans Admin. Hosp., 746 F.2d 1360, 1362 (8th Cir. 1984) (absent

exhaustion, sovereign immunity of United States is not waived).

 

As to Labickas's claim that the HEA creates a private right of

action, we determined in an earlier action filed by Labickas that no

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) (per

curiam). 

Contrary to his assertions, Labickas also cannot proceed under 42

U.S.C. § 1983. We agree with the district court that ASU was entitled to

Eleventh Amendment immunity. 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) (ASU

entitled to Eleventh Amendment immunity because testimony established funds

to pay award against ASU were controlled by state assembly). As to

Simmons, Labickas made no allegations from which it can be inferred that

Simmons acted under color 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. 1055

(1994).

 We also reject Labickas's argument that the district court abused its

discretion in denying Labickas's motion for a default judgment against

Simmons. See United States on Behalf of Time Equip. Rental v. Harre, 983

F.2d 128, 130 (8th Cir. 1993) (standard of review).
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Although it was within the district court's discretion to dismiss

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 order

dismissing state law claims following summary judgment on federal claims

as dismissal without prejudice because such procedure is the "normal

practice").

Accordingly, we affirm the dismissal with prejudice of Labickas's

federal claims and modify the dismissal of his state law claims to be

without prejudice. We deny Labickas's request to certify issues to the

United States Supreme Court.

A true copy.

Attest:

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