* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 5 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SAID M. KARARA,

Plaintiff-Appellant,

v. UNITED STATES OF AMERICA; RICHARD RILEY, Secretary, United States Department of Education; COLORADO STUDENT LOAN PROGRAM; ROBERT FOMER, individually and as Director of Colorado Student Loan Program; COLORADO STUDENT OBLIGATION BOND AUTHORITY and WILLIAM STOLFUS, individually and as Director of Colorado Student Obligation Bond Authority, Defendants-Appellees. No. 98-1241 (D.C. No. 96-S-2439) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and HENRY , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. In this student loan case, plaintiff Said M. Karara , acting pro se, sued defendants Colorado Student Obligation Bond Authori ty (CSOBA); Colorado Student Loan Program (CSLP), the directors of those two state agencies; the United States; and Richard Riley, the Secretary of the United States Department of Education, for specific performance and damages. The district court granted defendants’ motions for summary judgment or dismiss al. We exercise our jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s rulings.

BACKGROUND In 1981 and 1982, Karara obtained student loans fro m Colorado banks, each for the principal amount of $5,000. CSOBA pur chased the loans, and, in 1984, consolidated them into one obligation. Atthe time of consolidation, CSOBA issued a disclosure statement requiring Karar a to make a series of 114 payments of $120 and a final payment of $35.63, beg inning in August 1984. Karara was also provided with a series of coupons t o accompany payments. Karara sought and received a repayment deferral unt il January 1986. He then1 Both the disclosure statement and the coupons conta in errors. Even if

Karara had made all the proposed monthly payments, he would not have satisfied the total obligation reflected on the disclosure st atement. -3- made 95 of the $120 payments, and, in November 1993 he made a $28.48 payment, based on the coupon for December 1993. He made no further payments after that. 1 In September 1995, CSLP notified Karara that the Un ited States Department of Education held a claim against him fo r the defaulted loan and that any federal tax refunds would be held as an of fset against the debt. Although the notice advised Karara of his right to object to the offset, he did not do so. Later, a bank denied Karara’s application for a deb t consolidation loan, based in part on a credit history reflecting the student loan default. Karara filed suit against CSLP, CSOBA, and the agen cy directors (the state defendants), seeking an order acknowledging that hi s obligation was paid in full and awarding damages for harm to his credit reputat ion. Upon the filing of the state defendants’ motion for dismissal or summary j udgment, the district court referred the matter to a magistrate judge, pursuantto 28 U.S.C. § 636(b)(1). The magistrate judge analyzed Karara’s complaint as asserting claims for specific performance; libel and slander; rights under the Hi gher Education Act of 1965, 20 U.S.C. §§ 1001-1146a; and possibly a claim under42 U.S.C. § 1983.-4-

On his keystone claim for specific performance, Kar ara started from the premise that a loan is usually paid in equal instal lments, followed by a final payment in an odd amount. Therefore, he argued, th e December 1993 coupon for $28.48 represented an offer to settle the remaining balance of the loan for this amount, and he accepted the offer by making his las t payment. The magistrate judge rejected the contention, determining that the disclosure statement represented the agreement between Karara and the st ate defendants and that payment of the December 1993 coupon amount did not modify it. Because the undisputed facts showed that Karara had not fulfill ed the payment schedule proposed in the disclosure statement, CSOBA was ent itled to summary judgment on the specific performance claim. See Scientific Packages, Inc. v. Gwinn , 301 P.2d 719, 721 (Colo. 1956). As to the remaining st ate defendants, Karara had not alleged any facts demonstrating an agreement. Acco rdingly, the magistrate judge recommended dismissal for failure to state a claim upon which relief may be granted. Support for Karara’s other claims collapsed with th e determination that he had not satisfied his obligation to CSOBA. The mag istrate judge, however, gave additional reasons for his recommendation to dismis s them. To the extent that Karara sought tort damages, defendants were entitle d to immunity under the Colorado Governmental Immunity Act. See Colo. Rev. Stat. § 24-10-108-5-

(immunity of public entities from liability for tort claims); § 24-10-118(2) (immunity of public employees from liability for to rt claims for acts within the scope of their employment). Moreover, there is no private right of action for student borrowers under the Higher Education Act. See Labickas v. Arkansas State Univ. , 78 F.3d 333, 334 (8th Cir. 1996). Finally, Karar a’s failure to specify any constitutional or statutory right violated by d efendants meant that the § 1983 claim was insufficient to withstand a dismissal mot ion. The district court accepted the recommendation of the magistrate judge. This ruling, however, was not a final disposition o f the case. Mr. Karara had filed an amended complaint asserting the same claim s against the United States and Richard Riley, Secretary of the United States D epartment of Education (the federal defendants). The federal defendants filed a motion to dismiss or, alternatively, for summary judgment. In recommendi ng entry of summary judgment on the specific performance claim and dism issal of the remaining claims, the magistrate judge relied on the rational e of his earlier recommendation. Additionally, he determined that the undisputed evi dence showed that the federal defendants had no involvement in the administrationor collection of Karara’s loan. The district court agreed. It ruled that the relit igation of the issues raised against the federal defendants was barred by the do ctrine of res judicata,-6-

accepted the magistrate judge’s recommendation, anddismissed the case.

DISCUSSION We review the trial court’s rulings de novo. See Kidd v. Taos Ski Valley,
Inc. , 88 F.3d 848, 851, 854 (10th Cir. 1996). We uphol d a dismissal under Fed. R. Civ. P. 12(b)(6) only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitl e him to relief, accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff. See Fuller v. Norton , 86 F.3d 1016, 1020 (10th Cir. 1996). “Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is ent itled to judgment as a matter of law.” Kidd , 88 F.3d at 851. Karara raises seven issues on appeal: (1) whether the doctrine of res judicata applies; (2) whether he should have be en permitted to conduct discovery before the district court ruled on the su mmary judgment motions; (3) whether he had demonstrated accord and satisfac tion on a disputed claim; (4) whether there is a disputed issue of fact conce rning his payment; (5) whether he is entitled to specific performance; (6) whetherthe state defendants are shielded by the Colorado Governmental Immunity Act; and (7) whether the § 1983 claim was properly dismissed. After careful ly reviewing the record on appeal, we determine that there is no merit to a ny of Karara’s contentions.-7-

We AFFIRM the judgment of the United States Distric t Court for the District of Colorado for substantially the same rea sons stated in the recommendations of the magistrate judge dated July 10, 1997, and March 2, 1998; and the orders of the district court entered August26, 1997, and April 24, 1998. The mandate shall issue forthwith.

Entered for the Court

James E. Barrett Senior Circuit Judge