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Willoya v. State8/30/2002
o occasions: December 5 and 7, 1997. There is no indication that Willoya ever raised this claim before the superior court and, therefore, no findings of fact were ever made regarding these two incidents. Because this argument was not raised below, it is waived.
3. Willoya does not have a claim against the state for violation of its own policies and procedures.
Willoya argues that the state violated the Department of Corrections' policies and procedures by not informing his family that he had become seriously ill and was hospitalized. Willoya also claims that this violated his due process rights. Willoya failed to raise these claims below and, therefore, he has waived them.
E. Claims Raised by Willoya in His Reply Brief but Not in His Opening Brief Have Been Waived.
Willoya raises several claims in his reply brief that he neither raised below nor raised in his opening brief. These claims include an alleged sexually improper remark by Popken, the state's failure to provide certain materials through discovery, Willoya's right to know about Popken's consultations with other medical professionals, Popken's alleged breach of his confidential relationship with Willoya, violation of Willoya's right to know of unfavorable test results, and the state's interference with Willoya's confidential communications to his doctor.
On December 31, 2001 the state filed a motion with this court to strike the affidavits submitted with Willoya's reply brief and to disregard the arguments that Willoya did not raise in his opening brief. We struck the affidavits submitted with the reply brief and stated that we would not consider new points raised for the first time in the reply brief, but reserved our consideration of whether the challenged arguments were raised for the first time in the reply brief until our consideration of the merits of this appeal. We have now fully reviewed all of the briefing. Because these arguments were not raised in the opening brief, we now hold these arguments are waived.
V. CONCLUSION
We reject Willoya's various challenges and AFFIRM the superior court's grant of summary judgment to the state.
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