                                   ___________

                                   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Arkansas State University;          *        [UNPUBLISHED]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 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,
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.




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