116 F.3d 1486
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Ashton SCOTT, Plaintiff-Appellant,v.K.L. BROYLES, Correctional Officer;  Kevin Castiglione,Department Hearing Officer, Defendants-Appellees.
No. 96-35433.
United States Court of Appeals, Ninth Circuit.
Submitted June 17, 1997.**Decided June 19, 1997.

Appeal from the United States District Court for the District of Idaho.  B. Lynn Winmill, District Judge, Presiding.
Before:  GOODWIN, SCHROEDER, and TASHIMA, Circuit Judges.


1
MEMORANDUM*


2
Idaho state prisoner Ashton Scott appeals pro se the district court's summary judgment in Scott' § 42 U.S.C. § 1983 action for injunctive and declaratory relief.  Scott alleged that defendants violated his equal protection and First Amendment rights when they disciplined him for speaking German to defendants while they conducted a formal prison count.  We have jurisdiction pursuant to 28 U.S.C. § 1291.  We review de novo, see Taylor v. List, 880 F.2d 1040, 1044 (9th Cir.1989), and we affirm.


3
Because Scott failed to produce any evidence to support his claim that defendants treated him differently than similarly situated inmates, we affirm the district court's summary judgment for defendants on Scott's equal protection claim.  See id. at 1045;  see also Jackson Water Works, Inc. v. Public Utils.  Comm'n, 793 F.2d 1090 1092 (9th Cir.1986) (setting forth requirements to state an equal protection claim).


4
Because Scott failed to present any evidence to controvert defendants' affidavits regarding Scott's First Amendment claim, we affirm the district court's summary judgment for defendants on that claim.  See Taylor, 880 F.2d at 1045.   The district court was not required to consider the untimely affidavits that Scott submitted with his objection to the magistrate judge's report and recommendation to the district court.  See 28 U.S.C. § 636(b)(1)(C).


5
AFFIRMED.



**
 The panel unanimously finds this case suitable for decision without oral argument.  See Fed.  R.App. P. 34(a);  9th Cir.  R. 34-4


*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.  R. 36-3


