     Case: 12-40613       Document: 00512173257         Page: 1     Date Filed: 03/13/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 13, 2013
                                     No. 12-40613
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TOMMY JAMES HORNE,

                                                  Plaintiff-Appellant

v.

UNIVERSITY OF TEXAS MEDICAL BRANCH, Medical Care Provider; ELENA
ESTEFAN, Optometrist,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:09-CV-281


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Thomas James Horne, federal prisoner # 10536-078, appeals from the
dismissal of his civil rights action as frivolous and for failure to state a claim.
       Because Horne is a federal prisoner, we construe his action as arising
under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971). As to the University of Texas Medical Branch (UTMB), the
judgment is affirmed because it is a state agency that is immune from damages


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-40613    Document: 00512173257      Page: 2   Date Filed: 03/13/2013

                                  No. 12-40613

actions pursuant to the Eleventh Amendment. See Lewis v. Univ. of Texas
Medical Branch at Galveston, 665 F.3d 625, 630 (5th Cir. 2011).
      As to Dr. Elena Estefan, the judgment is vacated and the case is
remanded. First, it is unclear from the face of the complaint whether Horne
exhausted prison administrative remedies. See Jones v. Bock, 549 U.S. 199, 216
(2007) (holding that exhaustion is an affirmative defense that prisoners cannot
be required to plead or prove exhaustion); Carbe v. Lappin, 492 F.3d 325, 328
(5th Cir. 2007) (allowing dismissal for failure to exhaust when it is plain from
the face of the complaint).      Second, Horne’s allegation that Dr. Estefan
discovered a detached retina, did not treat it, and did not tell him about it,
leading to a one-year delay in treatment, is sufficient to state a claim of
deliberate indifference to his serious medical needs. See Domino v. Texas Dep’t
of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001); Mendoza v. Lynaugh, 989
F.2d 191, 195 (5th Cir. 1993).
      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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