A federal judge on Wednesday questioned a Federal Bureau of Prisons official about the accuracy of the bureau's response to Dzhokhar Tsarnaev, the man sentenced to death for killing four people in April 2013 in connection with the Boston Marathon bombing, and who is now challenging his prison conditions.

Tsarnaev, who is incarcerated at the United States Penitentiary — Administrative Maximum (ADX) facility in Florence, filed a lawsuit against the U.S. attorney general and the Bureau of Prisons after they declined to modify some of his inmate restrictions. Tsarnaev is specifically challenging the special administrative measures, or SAMs, that prohibit him from sending photos and hobby craft items through the mail.

The government argued that the court should dismiss Tsarnaev's claims because he failed to fully exhaust the multistep grievance process administratively before filing his legal complaint. But Tsarnaev pointed to letters he received in response to his early administrative grievances telling him the Bureau of Prisons "does not generate the SAM and does not have the authority to modify it."

A U.S. Department of Justice lawyer and the supervisory attorney for the Florence prison complex appeared before U.S. Magistrate Judge Michael E. Hegarty, who is overseeing Tsarnaev's lawsuit, to explain that the Bureau of Prisons does have a role to play in the SAMs after all. Therefore, Tsarnaev was wrong to abandon his administrative appeals.

"You can see from inmate’s perspective, that does sound futile to give a grievance to somebody who can’t do anything about it," Hegarty told the government lawyers. "That’s why I think it was a misleading comment to say the BOP cannot do anything."

"I would agree that it was not artfully crafted," conceded Christopher B. Synsvoll, the attorney for ADX and the other prisons in Florence.

In October, the government asked Hegarty to toss the portions of Tsarnaev's lawsuit challenging the photograph and hobby craft restrictions. Tsarnaev wanted "the privilege of sending his handiwork and his photographs outside the prison, where they could be sold via eBay or Etsy to like-minded jihadists or show up in Rolling Stone," alleged Assistant U.S. Attorney Susan Prose.

Prose argued that Tsarnaev had not progressed through all four steps of the grievance process before filing suit. Although the U.S. Supreme Court has recognized that administrative remedies are a "dead end" when officials are unwilling or unable to provide relief, she said that was not the case for Tsarnaev.

Tsarnaev countered by pointing to two letters he received in 2020. One, from the warden of the Florence complex, told him that "it was determined that the SAM has been properly applied" and that the Bureau of Prisons "does not have the authority to modify it." The second letter, from a regional director in the bureau, reiterated that "the BOP does not have the authority to modify your SAMs."

"The evidence establishes that the BOP's administrative-remedy process is a dead end," Tsarnaev, who is representing himself, wrote to the court.

Federal law authorizes the imposition of SAMs when there is a substantial risk that an inmate's communications could result in death or serious injury. While the Bureau of Prisons can provide relief from some SAMs on its own, for people convicted of terrorism offenses, there are three entities that make the decision: the Federal Bureau of Investigation's terrorism task force, the U.S. attorney's office and the Justice Department's Office of Enforcement Operations.

In March, Hegarty issued an order that expressed his dissatisfaction with how the Bureau of Prisons responded to Tsarnaev's grievances in the letters claiming it had no power to modify the conditions.

"I am not satisfied with the vague and veiled language used here," he wrote, referring to the bureau's claim that the SAMs had "been properly applied." He allowed the government to submit another motion with "unambiguous evidence" about the bureau's authority to modify SAMs.

Synsvoll, appearing before Hegarty this week, clarified that the bureau is an active participant in the SAM discussions.

"I hate to say we’re just a pass-through. We do provide information" to the three agencies, he said. "I have reaffirmed the obligations with the folks in our regional office as well as our regional counsel to ensure that these things are occurring, that that dialogue occurs with federal partners."

Hegarty asked if it was a "misstatement to say that BOP cannot modify your SAMs? The correct statement would be the three offices that have primary responsibility, in conjunction with the BOP that has custody, can modify your SAMs. Is that the accurate statement?"

Yes, Synsvoll said, adding that the bureau is no longer using the language Hegarty found problematic. The magistrate judge explained that his purpose in calling the hearing was to seek a clearer picture of who decided what in response to Tsarnaev's grievances.

"I am not suspicious at the moment about anything improper, but in writing any order that I write that someday may be appealed to the 10th Circuit (Court of Appeals), I just need the most perfect record that I can create," he said.

Prose told Hegarty at the end of the hearing that Tsarnaev should return to the administrative remedies now that the process is clear. Tsarnaev, appearing by phone from prison, disagreed with her conclusion.

"I think I’ve proven that I was unable to obtain relief. And now that they’re changing the language, it’s further proof, Your Honor, that I couldn’t obtain relief," he said.

Tsarnaev's lawsuit also challenges the SAM that places restrictions on his phone calls or correspondence with his nieces and nephews. Hegarty previously rejected the government's motion to dismiss that challenge, finding no clear rationale for allowing in-person visits from Tsarnaev's nieces and nephews, but prohibiting phone or mail contact.

That claim remains pending.

The case is Tsarnaev v. Garland et al.