* This order and judgment is not binding precedent, e xcept under the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

### NOV 30 1999 

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

MICHAEL R. HYDE,

Plaintiff-Appellant,

v. KATHY HAWK, U.S. Bureau of Prisons, Washington, D.C.,

Defendant-Appellee. No. 99-3016 (D.C. No. CV-98-3107-GTV)

(D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and HENRY , Circuit Judges.

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). The case is therefore ordered submitted without oral argument.1 See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics ,

403 U.S. 388 (1971).

-2- Plaintiff Michael Ramsey Hyde is a federal prisonercurrently housed at the United States Penitentiary at Leavenworth, Kansas, pursuant to a sentence imposed by the United States District Court for theSouthern District of California. He appeals from the dismissal of his Bivens 1 action, filed pro se and in forma pauperis. He asserts that because the district court has exclusive authority to set a schedule for the payment of mone tary penalties imposed in a criminal sentence, that defendant Kathy Hawk, throu gh her employees within the United States Bureau of Prisons (BOP), is violatinghis constitutional rights by using the Inmate Financial Responsibility Program (IFRP), see 28 C.F.R. §§ 545.10, 545.11, to divert a percentage of the wa ges he earns on his prison job to pay his court-ordered restitution, special asses sment, and court costs. Plaintiff contends that he agreed to participate in the IFRP only because defendant’s employees threatened to withhold privileges from hi m if he refused. He seeks a refund of his money and permanent injunctive reli ef. The district court granted plaintiff leave to proceed in forma pauperis and di smissed the complaint, sua sponte and prior to service, on the basis that plaintiff invited the alleged error by signing an IFRP contract. See R. Doc. 9. We have jurisdiction under 28 U.S.C. § 1291.-3-

A civil complaint accompanied by a motion to procee d in forma pauperis is reviewed under 28 U.S.C. § 1915. A civil complaintfiled by a prisoner seeking redress from a governmental entity is reviewed unde r 28 U.S.C. § 1915A. Both statutes apply here. Under either of them, a distr ict court must dismiss the complaint prior to service if it is frivolous or malicious, see § 1915(e)(2)(B)(i); § 1915A(b)(1), or if it fails to state a claim upon which relief may be granted, see § 1915(e)(2)(B)(ii); § 1915A(b)(1), or if it seeks monetary relief from a defendant who is immune from such relief, see § 1915(e)(2)(B)(iii); § 1915A(b)(2). The district court did not indicate the statutory autho rity upon which it relied to dismiss plaintiff’s Bivens action. We conclude that the district court erred in relyin g on the invited error doctrine to dismiss plaintiff’s complaint. “The invited error doctrine prevents a party from inducing action by a court and later see king reversal on the ground that the requested action was error.” United States v. Johnson , 183 F.3d 1175, 1178 n.2 (10th Cir. 1999); accord Parker v. Champion , 148 F.3d 1219, 1221-22 (10th Cir. 1998), cert. denied , 119 S. Ct. 1053 (1999); Sanders v. Buchanan , 407 F.2d 161, 163 (10th Cir. 1969). The doctrine therefore is not implicated in this case. Further, plaintiff’s claim (if we disregard for the moment the vehicle by which he attempts to raise it) is not frivolous. T he majority of circuits to have considered the issue have decided that setting a sc hedule for a prisoner to pay2 The version of the restitution statutes that applie s in a particular case is

determined by the date on which a prisoner was conv icted. The restitution statutes were amended by the Mandatory Victims Rest itution Act (MVRA), 18 U.S.C. §§ 3663A-3664, included in the Antiterror ism and Effective Death Penalty Act of 1996 (AEDPA). This court has decide d that the amendments do not apply to prisoners who were convicted before AEDPA’s April 24, 1996 enactment. See United States v. Olson , 104 F.3d 1234, 1237 n.2 (10th Cir. 1997). -4- restitution or fines is a core judicial function under the statute, 2and that the district court may not delegate to the BOP its duty to set the schedule. See United
States v. Coates , 178 F.3d 681, 684-85 (3d Cir. 1999) (restitution); United States v. Workman , 110 F.3d 915, 918-19 (2d Cir. 1997) (fine); United States v. Mortimer , 94 F.3d 89, 90 (2d Cir. 1996) (restitution); United States v. Miller , 77 F.3d 71, 74, 77 (4th Cir. 1996) (restitution); see also United States v. Albro , 32 F.3d 173, 174 & n.1 (5th Cir. 1994) (per curiam) (holding that court may not delegate duty to designate restitution payment sche dule to non-Article III official); United States v. Boula , 997 F.2d 263, 269 (7th Cir. 1993) (holding that court must retain control over prisoner’s payment o f restitution and may not delegate discretion to probation office); cf. Montano-Figueroa v. Crabtree , 162 F.3d 548, 549-50 (9th Cir. 1998) (per curiam) ( holding that restitution statute did not bar BOP from diverting part of prisoner’s w ages to pay court-ordered fine where delegation of duty to establish payment schedule was not express and fine was therefore due immediately under relevant statute), cert. denied , 119 S. Ct. 1505 (1999); see also United States v. Hill , No. 98-3709, 1999 WL 801543, at *1-5-

(6th Cir. Sept. 28, 1999) (unpublished) (summarily rejecting prisoner’s claim that court improperly delegated duty to set restitution payment schedule to BOP). This court has identified this as a “serious issue, ” but has not yet decided it. United States v. Phillips , No. 97-3224, 1998 WL 51743, at **1 (10th Cir. Feb . 2, 1998) (unpublished). Nevertheless, we may affirm the district court’s di smissal on a different ground if the record is sufficient to allow conclusions of law. See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994). We hold that the record is sufficient to affirm the dismissal of plaintiff’s c omplaint on the basis that a Bivens remedy is not available to redress his alleged inj ury, and that he has therefore failed to state a claim upon which relief may be granted under § 1915(e)(2)(B)(ii) and § 1915A(b)(1). Plaintiff’s complaint makes clear that the actions of defendant for which he seeks redress are based on the alleged “improper de legation of judicial functions inherent in [the] grant of restitution and/or fine, ” that is, the district court’s failure to set a schedule in his criminal sentence for the payment of restitution, special assessment, and court costs. R. Doc. 1 at 3. His Bivens claim is therefore barred by Heck v. Humphrey , 512 U.S. 477 (1994). In Heck , the Supreme Court held that “the district court must co nsider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his . . . sentence;-6-

if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the . . . sentence has already been invalidated.” Id. at 487. While Heck concerned an action brought under 42 U.S.C. § 1983, its holding also applies to actions brought under Bivens . See Crow v. Penry , 102 F.3d 1086, 1087 (10th Cir. 1996) (per curiam). Plaintiff’s allegations necessarily imply that his sentence is invalid. We take judicial notice that plaintiff fi led a direct criminal appeal, but did not challenge the district court’s alleged dele gation of payment scheduling authority to the BOP. See United States v. Hyde , No. 96-50373, 1997 WL 330678 (9th Cir. June 17, 1997) (unpublished), cert. denied , 118 S. Ct. 348 (1997). Plaintiff also filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, which was dismissed and not appea led. No. 3:98cv1939 (S.D. Cal. Apr. 28, 1999). Therefore, plaintiff cannot show the elements necessary to sustain a Bivens claim, and has failed to state a claim upon which relief may be granted. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge