ALD-274                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-1849
                                       ___________

                                  AKEEM R. GUMBS,
                                               Appellant

                                             v.

                                 LOUIS PENN, JR.
                       ____________________________________

                            On Appeal from the District Court
                           for the District of the Virgin Islands
                              (D.C. Civ. No. 3-16-cv-00030)
                       District Judge: Honorable Curtis V. Gómez
                       ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     June 8, 2017
              Before: MCKEE, JORDAN and RESTREPO, Circuit Judges

                              (Opinion filed: June 28, 2017)
                                       _________

                                        OPINION*
                                        _________
PER CURIAM

       Akeem R. Gumbs appeals from the District Court’s order dismissing his in forma

pauperis complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
and 28 U.S.C. § 1915A(b)(1). We will dismiss this appeal as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B)(i).

                                            I.

       Gumbs was convicted in the District of the Virgin Islands of 31 counts relating to

his production and possession of child pornography and his multiple rapes of his eight-

year-old niece (which he filmed). The District Court sentenced him to 300 months of

imprisonment, and we affirmed. See United States v. Gumbs, 562 F. App’x 110 (3d Cir.

2014) (per curiam). Gumbs’s prosecution was based largely on materials that officers

seized from his home while executing a search warrant. Agent Louis Penn, Jr., obtained

that warrant on the basis of his affidavit of probable cause. Gumbs raised Fourth

Amendment challenges to the warrant and its procurement before his trial and on appeal,

but both the District Court and this Court rejected them. See 

       Gumbs later challenged his convictions in a motion under 28 U.S.C. § 2255. He

claimed, among other things, that his counsel should have argued that the warrant was

defective because Agent Penn’s affidavit did not specify the dates on which Gumbs

produced child pornography. According to Gumbs, Agent Penn’s affidavit thus violated

his Sixth Amendment right “to be informed of the nature and cause of the accusation.”

The District Court denied Gumbs’s § 2255 motion, and it denied this claim in particular

because Gumbs’s Sixth Amendment rights had not attached when Agent Penn submitted

his affidavit and because Gumbs’s right to notice of the charges was secured by his

indictment. Gumbs appealed that ruling at C.A. No. 17-1608, and we are denying his
                                             2
request for a certificate of appealability.

       About two months after the District Court denied Gumbs’s § 2255 motion, he filed

the civil action at issue here. He named Agent Penn as the sole defendant and repeated

his claim, this time under 42 U.S.C. § 1983, that Penn’s affidavit violated his Sixth

Amendment right to notice of the charges against him. Gumbs did not request any relief

from his conviction. Instead, he alleged that Penn’s affidavit and the criminal proceeding

flowing therefrom resulted in the loss of his employment with Home Depot. On that

basis, he requested monetary damages for lost wages. The District Court dismissed

Gumbs’s complaint for failure to state a claim for the same reasons it denied his claim in

the § 2255 context. Gumbs appeals.

                                              II.

       We will dismiss this appeal as frivolous because it “lacks an arguable basis either

in law or in fact.” Neitzke v. Williams, 

, 325 (1989). Gumbs appears to

acknowledge that, as the District Court properly concluded, his Sixth Amendment right to

notice of the charges did not arise until the initiation of criminal proceedings. See Moore

v. Illinois, 

, 226-27 (1977); Burchett v. Kiefer, 

, 946-47 (6th

Cir. 2002). Gumbs argues, however, that his criminal proceeding commenced when he

appeared before a Magistrate Judge two days after Penn submitted his affidavit and that

the affidavit began to violate his Sixth Amendment right at that time.

       This argument is frivolous. Once criminal proceedings are commenced, the Sixth

Amendment right to notice of the charges is secured by the indictment or other charging
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instrument. See Russell v. United States, 

, 760-61 (1962); United States v.

Hodge, 

, 76 (3d Cir. 2000); Sheppard v. Rees, 

, 1236 & n.2

(9th Cir. 1989). Gumbs’s allegations regarding the affidavit of probable cause have

nothing to do with his indictment, which the District Court has found sufficient. The

affidavit and warrant were subject to the Fourth Amendment, but we already have upheld

the warrant and its procurement and Gumbs raises no Fourth Amendment claim in any

event.

         One final issue warrants discussion. The “three strikes” provision of the Prison

Litigation Reform Act restricts prisoners’ ability to bring civil actions or appeals in forma

pauperis after they have brought three civil actions or appeals that have been dismissed

on the ground that they were “frivolous, malicious, or fail[ed] to state a claim upon which

relief may be granted.” 28 U.S.C. § 1915(g). The District Court’s dismissal of Gumbs’s

complaint for failure to state a claim counts as a strike under this provision, and our

dismissal of this appeal as frivolous counts as a strike as well. See Byrd v. Shannon, 

, 125 (3d Cir. 2013). Thus, if Gumbs brings another civil action or appeal that is

dismissed on one of the grounds enumerated in § 1915(g), he will be precluded from

bringing a civil action or appeal in forma pauperis unless he is “under imminent danger

of serious physical injury.” 28 U.S.C. § 1915(g). Gumbs should bear this in mind before

filing any civil action or appeal in the future.

                                              III.

         For these reasons, we will dismiss this appeal as frivolous.
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