
    Tommy James HORNE, Plaintiff-Appellant v. UNIVERSITY OF TEXAS MEDICAL BRANCH, Medical Care Provider; Elena Estefan, Optometrist, Defendants-Appellees.
    No. 12-40613
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    March 13, 2013.
    Tommy James Horne, Memphis, TN, pro se.
    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 Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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 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, 127 S.Ct. 910, 166 L.Ed.2d 798 (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. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     