Akeem Gumbs v. Louis Penn, Jr., 691 F. App'x 57

Akeem R. Gumbs was convicted in the District of the Virgin Islands for producing/possessing child pornography and raping his niece; sentenced to 300 months; this Court affirmed on direct appeal.
The prosecution relied largely on evidence seized under a search warrant supported by Agent Louis Penn Jr.’s affidavit of probable cause; Gumbs previously litigated and lost Fourth Amendment challenges to the warrant.
Gumbs filed a § 2255 motion arguing counsel should have challenged the warrant because Penn’s affidavit did not specify dates of alleged production; he framed this as a Sixth Amendment notice problem; the § 2255 denial was upheld and a COA was denied.
Two months after the § 2255 denial, Gumbs sued Penn under 42 U.S.C. § 1983 seeking damages for lost wages (alleging the affidavit violated his Sixth Amendment right to notice); he did not seek relief from his conviction.
The District Court dismissed the § 1983 complaint for failure to state a claim; the panel dismissed Gumbs’s appeal as frivolous and explained the Sixth Amendment notice right is secured by the indictment once proceedings commence, and the affidavit/warrant issues were Fourth Amendment matters already rejected on appeal.
The opinion also warned Gumbs that the District Court’s dismissal and this frivolous-appeal dismissal count as strikes under 28 U.S.C. § 1915(g).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Penn’s affidavit violated Gumbs’s Sixth Amendment right to be informed of the nature and cause of the accusation, allowing a § 1983 claim for damages	Gumbs: criminal proceedings began when he appeared before a Magistrate two days after the affidavit, so the affidavit then violated his Sixth Amendment right to notice	Penn: Sixth Amendment notice attaches at commencement but is secured by the indictment/charging instrument; affidavit relates to Fourth Amendment and the warrant has been upheld	Dismissed as frivolous: once proceedings commence the indictment secures notice; affidavit/warrant are Fourth Amendment matters already litigated and not a basis for § 1983 damages

Neitzke v. Williams, 490 U.S. 319 (frivolous standard for § 1915 dismissals)
Moore v. Illinois, 434 U.S. 220 (Sixth Amendment rights attach at initiation of adversary proceedings)
Burchett v. Kiefer, 310 F.3d 937 (Sixth Amendment notice timing principles)
Russell v. United States, 369 U.S. 749 (indictment or charging instrument secures right to notice)
United States v. Hodge, 211 F.3d 74 (same; indictment controls notice once proceedings start)
Sheppard v. Rees, 909 F.2d 1234 (discussion of charging instrument securing notice)
Byrd v. Shannon, 715 F.3d 117 (dismissals count as strikes under 28 U.S.C. § 1915(g))