PUBLISH UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

DAVID L. BROWN, Plaintiff -Appellant, v. No. 14-7023 SARAH PARKER, Records Officer for the Oklahoma Department of Corrections; EMMA WATTS, Warden for the Oklahoma Department of Corrections; JIM RABON, Sentence Administrator for the Department of Corrections; ROBERT PATTON, Director of the Department of Corrections, Defendants-Appellees.

Appeal from the United States District Court For the Eastern District of Oklahoma (D.C. No. 6: 12-CV-00096-RAW)
David L. Brown, pro se, Plaintiff-Appellant. Wilson D. McGarry, Assi stant Attorney General, Oklahoma Attorney General’s Office, Oklahoma City, Ok lahoma, for Defend ants-Appellees.

Before KELLY , ANDERSON , and BACHARACH , Circuit Judges. FILED United States Court of Appeals Tenth Circuit 

### November 12, 2014 Elisabeth A. Shumaker Clerk of Court2 BACHARACH , Circuit Judge.
Mr. David L. Brown was imprisoned on two sentences. The first one was in Tulsa County and the second one was in Mu skogee Coun ty. Both sentences were two years, and the sec ond one (in Muskogee County) was to run concurrently with the first one. Mr. Br own thought the second sentence should have ended when the first one did. So, when Mr. Brown was eventually released from prison , he sued under 42 U.S.C. § 1983, alleging that authorities re fused to release him afte r his Muskogee sentence had ended. The district court granted summary judgment to the Defendants, concluding that Mr. Brow n had not been held beyond the expiration of the Muskogee sentence. That conclusi on was correct, and we affirm. The Muskogee sentence was to run concurre ntly (but not cote rminously) with the Tulsa sentence. Thus, Mr. Brow n was not incarcer ated beyond the expiration of his Muskogee sentence. I. The Two Sentences and the Two Release Dates In January 2011, Mr. Br own began serving a tw o-year sentence for a Tulsa County conviction. Over a month later, Mr. Brown began serving a two-year concurrent sentence imposed on a Muskogee County conviction.3 Because the start dates were differen t for the two sentences, the Oklahoma Department of Corrections set different release dates. After learning that he would not be released upon completi on of the Tulsa sentence, Mr. Brown obtained three amended orders from the state judge who had imposed the Muskogee sentence. The first two orders are not at issue. But, th e third order is. There the judge said that the “Defendant is to be rel eased upon the completion of [the Tulsa sentence].” R. at 78. Though Mr. Brown discharged his Tu lsa sentence on September 27, 2011, he stayed in pris on for almost three more months to serve the remainder of his Muskog ee County sentence. II. The Suit In Mr. Brown’s view, the release wa s overdue. Thus, he sued prison officials, invoking 42 U.S.C. § 1983 and the Eighth Am endment. The district court granted summary judgment to the Defendants. III. Standard of Review We engage in de novo review and draw all reas onable infere nces in a light most favorable to the nonmoving party (Mr. Brown). Byers v. City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998). Doin g so, we can uphold the summary judgment ruling only “if the plea dings, depositions,4 answers to interrogatories, and admi ssions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving pa rty is entitled to a judgment as a matter of law.” Id. IV. Concurrent Sentences and the Proper Release Date The overarching issu e is whether Mr. Brow n should have been released earlier. That is sue turns on the content of the Muskogee sentence: When the Muskog ee judge said the sentence was conc urrent with the earlier Tulsa sentence, did that mean that the two sent ences would end on the same day? Mr. Brown thinks so; an d if he is right, he might have a viable constitutional claim. See Warnick v. Booher , 144 P.3d 897, 900 (Okla. Crim. App. 2006). But we disagree with Mr . Brown’s interpretation of the Muskogee sentence: It was to run concurrently with the Tulsa sentence, but the two sentences starte d at different times . Thus, the two sentences would end at different times. Mr. Brown relies on the Muskogee j udge’s third amended order, which said that the se ntence had ended upon co mpletion of the Tulsa sentence. Mr. Brown’s frustration is understandable: If the judge was right, Mr. Brown remained in prison longer than he s hould have. The problem is that there was no basis in Oklahoma law for the Muskogee5 judge to make this statement. As a result, the statemen t lacked any legal effect. By the time the Muskogee court imposed the sentence, Mr. Brown had already served over a month of hi s Tulsa sentence. That time could be credited to service of th e Tulsa sentence, but not the Muskogee sentence. Thus, when the Muskogee judge ordered a two-year concurrent sentence, he effectively required Mr. Brown to stay in prison after completion of the Tulsa sentence. Through the third amende d order, the Muskogee judge tried to change the sentence from a concurrent senten ce to a coterminou s sentence. There is a difference. See, e.g. , Daffin v. Florida , 31 So. 3d 867, 870 (Fla. Dist. Ct. App. 2010) (discussi ng the difference betw een concurrent and coterminous sentences). A sentence is considered “concurrent” when it is to be served simultaneously with another sentence. Black’s Law Dictionary 1569 (10th ed. 2014). But, that does not mean the sentences will end at the same time. When the senten ces are to end at the same time, the second on e is called “coterminous.” See Whitfield v. Florida , 95 So. 3d 964, 965 n.3 (F la. Dist. Ct. App. 2012) (per curiam) (“A coterminous sentence is a sentence that runs concurrently with another sentence and is ordered to terminate simultaneously with the other sentence.”).6 Some states authorize coterminou s sentences at least in some circumstances. See, e.g. , Cottengim v. Florida , 44 So. 3d 209, 211 (Fla. App. 2010) (per curiam) (“ [C]oterminous sentences have been recognized as a legitimate sentenci ng option.”). But, Okla homa does not. In Oklahoma, district courts can make a sentence concurrent or consecutive. Okla. Stat. tit. 22 § 976 . But, Oklaho ma law does not provide any authority for the impos ition of a coterminous se ntence. Because the Muskogee judge lacked au thority to render a co terminous sentence, the third amended order was a nullity. See Carroll v. Al abama Dep’t of Corr. , __ So. 3d __, 2014 WL 4957723 , at *2 (Ala. Crim. A pp. 2014) (stating that a sentencing order was void because it purported to ma ke the sentence coterminous and the state had no statute or rule th at would allow issuance of a coterminous sentence). 1

1 The third amended order was filed on October 3, 2011. In the order, the district court twice stated: “Defendant is to be released upon the completion of Tulsa County Case No. CF-2007-4807.” By the time of this order, however, Mr. Brown had already completed his Tulsa sentence. The Muskogee judge might have accomplishe d the same result by modifying his initial sentence. See Okla. Stat. tit. 22 § 982a. For example, instead of amen ding the initial senten ce, the Muskogee judge could have modified the sentence to six months and eleven days, which would have resulted in Mr. Brown’s simultaneous discharge of both sentences on Se ptember 27, 2011.7 Because the Muskogee j udge’s third amended order was a nullity, the federal district court had two options: It could disregard the third amended order or recharacterize it in a way that would conform to Oklahoma law. Either option would be fatal to Mr. Brown’s § 1983 claim. If the federal district court were to disregard the third amended order, the Muskogee sentence woul d have been concurrent (but not coterminous) with the Tulsa sentence. Mr. Brown began serving the Muskogee sentence in Fe bruary 2011 (while he was also serving the Tulsa sentence). The time served would be (and was) credite d against both sentences. But Mr. Brown started se rving the Muskogee sentence after spending over a month in prison on the Tulsa sent ence. Thus, the first option would require Mr. Brown to stay in prison after he completed the Tulsa sentence. The federal district court chose not to treat the th ird amended order as a nullity. Instead, the court recharacterized the order in a way that conformed to Oklahoma la w. Under this characte rization, the Muskogee sentence was to end when the Tulsa sentence ende d (without consideration But the Muskogee judge did not purport to modify the sentence. If he had considered modification, he wo uld have had to convene a hearing, obtain a written report from the Department of Corrections, and provide notice to the Department of Corrections, Mr. Brown, and the district attorney. Okla. Stat. tit. 22 § 982a(B)-(C). The Muskogee judge did not do any of that.8 of any credits earned on the Tulsa se ntence). This characterization benefited Mr. Brow n, but not enough to support a constitutional claim. Mr. Brown began serv ing the Tulsa sentence in January 2011. Because the sentence was two years, the Tulsa sentence would have ended in January 2013 withou t consideration of credits. The federal district court assumed (for Mr. Brown’s benefit) th at the Muskogee j udge was imposing a two-year sentence that would have ended in Ja nuary 2013 (r ather than February 2013) absent any credits. Though this a ssumption shortened Mr. Brown’s sentence by about a month, it did not ma tter because Mr. Brown got out of prison long before January 2013. The federal district court’s interpre tation of the th ird amended order is debatable. But even without that assumption , the third amended order would have lacked any legal effect because it would have created a coterminous sentence, which is not recogn ized in Oklahoma. With or without the federal district court’s assumption, Mr. Brown’s Muskogee sentence would have continued after discharge of the Tulsa sentence. Under the federal district court’s assumption (in favor of Mr. Brown), he could expect re lease once he served th e two years of his Tulsa

sentence. See Warnick v. Booher , 144 P.3d 897, 901 (O kla. Crim. App. 2006). That expectation was satisfied , for Mr. Brown was released within9 a year of the time he began servin g the Tulsa senten ce. Because Mr. Brown was not incarcerated beyond th e terms of the Mu skogee sentence, the § 1983 claim fails as a matter of law. See Fristoe v. Thompson , 144 F.3d 627, 630 (10th Cir. 1998) (“A convicted pers on has no constitutional or inherent right to be conditionally released befo re the expiration of a valid sentence.”). Thus, we affirm the award of summary judgment to the Defendants. V. Leave to Procee d in Forma Pauperis Mr. Brown has not only appealed, bu t also requested leave to proceed in forma pauperis. We grant this request because Mr. Brow n cannot afford to pay the filing fee. See 28 U.S.C. § 1915(a)(1).