PUBLISH 

UNITED STATES COURT 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, Assistant Attorney General, Oklahoma Attorney 

General’s Office, Oklahoma City, Oklahoma, for Defendants-Appellees. 

Before KELLY, ANDERSON, and BACHARACH, Circuit Judges. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 12, 2014

Elisabeth A. Shumaker 

Clerk of Court
2 

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 Muskogee County. Both 

sentences were two years, and the second one (in Muskogee County) was to 

run concurrently with the first one. Mr. Brown 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 refused to release him after his Muskogee sentence 

had ended. 

The district court granted summary judgment to the Defendants, 

concluding that Mr. Brown had not been held beyond the expiration of the 

Muskogee sentence. That conclusion was correct, and we affirm. The 

Muskogee sentence was to run concurrently (but not coterminously) with 

the Tulsa sentence. Thus, Mr. Brown was not incarcerated beyond the 

expiration of his Muskogee sentence. 

I. The Two Sentences and the Two Release Dates 

In January 2011, Mr. Brown began serving a two-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 different for the two sentences, the Oklahoma 

Department of Corrections set different release dates. 

 After learning that he would not be released upon completion 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, the third order is. There the judge said that the 

“Defendant is to be released upon the completion of [the Tulsa sentence].” 

R. at 78. 

Though Mr. Brown discharged his Tulsa sentence on September 27, 

2011, he stayed in prison for almost three more months to serve the 

remainder of his Muskogee County sentence. 

II. The Suit 

 In Mr. Brown’s view, the release was overdue. Thus, he sued prison 

officials, invoking 42 U.S.C. § 1983 and the Eighth Amendment. The 

district court granted summary judgment to the Defendants. 

III. Standard of Review 

 We engage in de novo review and draw all reasonable inferences in a 

light most favorable to the nonmoving party (Mr. Brown). Byers v. City of 

Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Doing so, we can 

uphold the summary judgment ruling only “if the pleadings, depositions, 
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answers to interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material 

fact and that the moving party is entitled to a judgment as a matter of law.” 

Id. 

IV. Concurrent Sentences and the Proper Release Date 

 The overarching issue is whether Mr. Brown should have been 

released earlier. That issue turns on the content of the Muskogee sentence: 

When the Muskogee judge said the sentence was concurrent with the 

earlier Tulsa sentence, did that mean that the two sentences would end on 

the same day? Mr. Brown thinks so; and 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 started at different times. Thus, the two 

sentences would end at different times. 

 Mr. Brown relies on the Muskogee judge’s third amended order, 

which said that the sentence had ended upon completion of the Tulsa 

sentence. Mr. Brown’s frustration is understandable: If the judge was 

right, Mr. Brown remained in prison longer than he should have. The 

problem is that there was no basis in Oklahoma law for the Muskogee 
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judge to make this statement. As a result, the statement lacked any legal 

effect. 

By the time the Muskogee court imposed the sentence, Mr. Brown 

had already served over a month of his Tulsa sentence. That time could be 

credited to service of the 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 amended order, the Muskogee judge tried to change 

the sentence from a concurrent sentence to a coterminous sentence. There 

is a difference. See, e.g., Daffin v. Florida, 31 So. 3d 867, 870 (Fla. Dist. 

Ct. App. 2010) (discussing the difference between 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 sentences are to end at the same time, 

the second one is called “coterminous.” See Whitfield v. Florida, 95 So. 

3d 964, 965 n.3 (Fla. 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.”). 
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Some states authorize coterminous 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 sentencing option.”). But, Oklahoma does not. In 

Oklahoma, district courts can make a sentence concurrent or consecutive. 

Okla. Stat. tit. 22 § 976. But, Oklahoma law does not provide any 

authority for the imposition of a coterminous sentence. Because the 

Muskogee judge lacked authority to render a coterminous sentence, the 

third amended order was a nullity. See Carroll v. Alabama Dep’t of Corr., 

__ So. 3d __, 2014 WL 4957723, at *2 (Ala. Crim. App. 2014) (stating that 

a sentencing order was void because it purported to make the sentence 

coterminous and the state had no statute or rule that 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 accomplished the same result by 

modifying his initial sentence. See Okla. Stat. tit. 22 § 982a. For 

example, instead of amending the initial sentence, 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 September 27, 2011. 
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Because the Muskogee judge’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 would have been concurrent (but not 

coterminous) with the Tulsa sentence. Mr. Brown began serving the 

Muskogee sentence in February 2011 (while he was also serving the Tulsa 

sentence). The time served would be (and was) credited against both 

sentences. But Mr. Brown started serving the Muskogee sentence after 

spending over a month in prison on the Tulsa sentence. 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 third amended order 

as a nullity. Instead, the court recharacterized the order in a way that 

conformed to Oklahoma law. Under this characterization, the Muskogee 

sentence was to end when the Tulsa sentence ended (without consideration 

 

 But the Muskogee judge did not purport to modify the sentence. If 

he had considered modification, he would 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 sentence). This characterization 

benefited Mr. Brown, but not enough to support a constitutional claim. 

Mr. Brown began serving the Tulsa sentence in January 2011. 

Because the sentence was two years, the Tulsa sentence would have ended 

in January 2013 without consideration of credits. The federal district court 

assumed (for Mr. Brown’s benefit) that the Muskogee judge was imposing 

a two-year sentence that would have ended in January 2013 (rather than 

February 2013) absent any credits. Though this assumption shortened Mr. 

Brown’s sentence by about a month, it did not matter because Mr. Brown 

got out of prison long before January 2013. 

The federal district court’s interpretation of the third 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 recognized 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 release once he served the two years of his Tulsa 

sentence. See Warnick v. Booher, 144 P.3d 897, 901 (Okla. Crim. App. 

2006). That expectation was satisfied, for Mr. Brown was released within 
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a year of the time he began serving the Tulsa sentence. Because Mr. 

Brown was not incarcerated beyond the terms of the Muskogee sentence, 

the § 1983 claim fails as a matter of law. See Fristoe v. Thompson, 144 

F.3d 627, 630 (10th Cir. 1998) (“A convicted person has no constitutional 

or inherent right to be conditionally released before the expiration of a 

valid sentence.”). Thus, we affirm the award of summary judgment to the 

Defendants. 

V. Leave to Proceed in Forma Pauperis 

Mr. Brown has not only appealed, but also requested leave to proceed 

in forma pauperis. We grant this request because Mr. Brown cannot afford 

to pay the filing fee. See 28 U.S.C. § 1915(a)(1).